Cutetallica — 4 lessons in talent management

Those of you who’ve been reading for awhile know that my 8-year-old daughter plays in a rock band. “Band” might be too ambitious of a term. She’s taken guitar lessons at School of Rock, in Strongsville, Ohio, for a couple of years, and since January has taken part in its performance program, which is known as Rock 101 for the beginner musicians. For her first set of performances in January, she was the only student, leaving her to play guitar and sing on every song. That pattern continued for her next set of shows in May, as the band added a drummer, but no singers.

Norah performed her most recent shows over the past two Saturdays. This time, even though she was joined by two other singers, she still sang lead on three of the songs (while still playing guitar), and added a new instrument, bass, on the fourth. Needless to say, she killed it (again):

 

 

So you don’t think I’m just a shill for my daughter, here are four talent-management lessons to take away from my rock star:

1. Let employees be who they are. “Cutetallica” was born out of the show director telling Norah that she sounds too cute when she sings For Whom the Bell Tolls, which, after all, is about death and the Grim Reaper. Her guitar teacher, on the other hand, liked Norah’s cute-sounding version of the song. Hence, Cutetallica. Your employees are who they are. If you want their best, don’t try to force a round peg into a square hole. Instead, let them perform while being true to themselves and their talents.

2. Push your employees. School of Rock gets it. It knows how to push kids to their limits, and recognizes that, much more often than not, talent rises to the occasion. Let your employees rise and fall to their abilities. Push them hard, and take away the safety net. They’ll surprise and delight you.

3. Age has no role in the workplace. Don’t rely on age (young or old) as a factor in your employment or staffing decisions. If School of Rock limited Norah’s ceiling by her 8-year-old age, she’d still be playing one instrument, and would stay in Rock 101 for a few more years. Instead, they allow her to take off the training wheels and succeed by her ability, not the perception of her ability based on how many years she’s been alive.

4. Talent is not a substitute for hard work. What impresses me most about how well Norah performs isn’t the performance, but all of the time and effort she puts in to honing it. Yes, I can be the nagging parent (“Did you practice your guitar today?”), but she’s the one putting in the time in her bedroom, making sure she’s going to nail her solo in About A Girl, and guaranteeing that she won’t forget any lyrics in the second verse of For Whom the Bell Tolls. Talent can sometimes leave you in the lurch, but hard work never will.

This was Norah’s last Rock 101 performance. She’s graduated to playing with the older, more experienced kids. Four months from now, I’ll be back to entertain you with the music of Joan Jett, as strummed and sung by Norah Hyman, maybe with an HR or employment law lesson to teach along the way.

---

If you’re in the area, Cutetallica has one show left, this Sunday, September 21, at 4 pm, at the Strongsville Chalet, 16200 Valley Pkwy, Strongsville, Ohio, as part of the Arts in Strongsville “Day at the Chalet.”

WIRTW #333 (the “firsts” edition)

Big week of firsts for the Hyman family. First week at a new job for me. First week of third grade for Norah. And, it was the first day of kindergarten for Donovan, who after watching his sister walk the halls of her school for the past three years, is finally proud to call it his school too.

Here’s the rest of what I read this week:

Discrimination

• Peanut Allergies Can Be Disabilities But Analysis Must Run Deeper — via Dan Schwartz’s Connecticut Employment Law Blog
• Anti-discrimination law vs. associational freedom, again — via Overlawyered
• Post-Pregnancy Discrimination? — via Next Blog
• Facially Sex-Neutral Statements and Conduct May Support a Sexually Hostile Work Environment Claim — via New York Labor and Employment Law Report
• Sex Discrimination: Employers can be held liable for terminating an employee based on an angry co-worker’s intent on revenge — via Employment Law Bits
• Teacher Who Refused Fitness-For-Duty Exam Has No Disability Accommodation Claim — via The Employment Brief

Social Media & Workplace Technology

• Delaware is first state to adopt model law that says social media accounts can be inherited — via ABA Journal Daily News
• Social Media Policies in the Workplace — via The Labor Dish

HR & Employee Relations

• The hidden business benefits of fantasy football — via Evil HR Lady, Suzanne Lucas
• HR Cinema: Guardians of the Galaxy — via Casey Sipe’s The Employer’s Lawyer
• Teleworker, or teleslacker? Here’s how employers can tell the difference. — via Robin Shea’s Employment and Labor Insider
• Forget About Non-Competes – What are employers agreeing on? — via Smooth Transitions
• Why Going Green Is a Great Idea in the Workplace — via Mike Haberman’s Omega HR Solutions
• Five Things Every Lawyer Should Know About The Ebola Virus — via The Sociable Lawyer Blog
• My Employee Is Obsessed With Ebola — via Evil Skippy at Work

Wage & Hour

• Lesson from Wal-Mart: Wage and Hour Violations Don’t Pay! — via The Emplawyerologist
• Gawker Media in Crosshairs of Interns’ FLSA Suit — via Joe’s HR and Benefits Blog
• NFL Argues Cheerleader Pay Is Exempt From State Labor Laws — via Law.com
• 7-Eleven Franchise Operators’ Overtime & Minimum Wage Lawsuit Given Green Light by NJ District Court — via Management Memo
• When Is It Time For A Wage Hour Audit? Answer—Now! — via Wage & Hour - Development & Highlights
• Not Paying Employees On Time? It’s Considered an FLSA Violation — via TLNT

Labor Relations

• Board Circles Back To Ruling Nixed By Noel Canning — via Labor Relations Today
• You’re NOT Paranoid – the Agencies ARE Ganging Up — via Labor & Employment Law Perspectives
• NLRB may encourage your employees to file OSHA, FLSA claims too — via Eric Meyer’s The Employer Handbook Blog
• The latest from the NLRB on employment-at-will — via Business Management Daily

Employment Law Blog Carnival: The Child of the 90s Edition #ELBC

I’ve been thinking a lot lately about the 1990s. Maybe it’s the fact that they were my formative years in college and law school. Maybe it’s the three-night series I just watched on National Geographic Channel. Maybe it’s the rebirth (and re-cancellation) of Arsenio Hall. Maybe it’s how my daughter is learning Nirvana, Pearl Jam, and the Chili Peppers for her next gig. Or, Maybe it’s just because I’ve been listening to a bit too much Lithium on my satellite radio trying to recapture my youth. Whatever the case, I’m dedicating this, my annual turn at the wheel of the Employment Law Blog Carnival, to the 90s.

So put on your flannel shirts (or blue dresses), bust out your Bill-Clinton sax, and enjoy this grungy Child of the 90s edition of the Employment Law Blog Carnival, as I present the best of the Employment Law Blawgosphere as seen through the lens of ten of the best songs to come out of The Last Great Decade.


Four Leaf Clover — Old 97’s (1997, as covered in 2014)


The Old 97’s recorded this song twice, a countrified version on their debut album, Hitchhike to Rhome, and this rock version for their 1997 breakthrough album, Too Far to Care, which Rhett Miller turned into a duet with Exene Cervenka, singer from the punk band X. Do you feel lucky? Read these 4 Steps to Combat Workplace Discrimination, from Ari Rosenstein’s Small Biz HR Blog, and you might.


Daughter — Pearl Jam (1993)


Eddie Vedder can be a bit hard to understand when he sings. Did you know that this song is about a girl with a learning disability, abused by her family and friends because they did not understand what was wrong with her? Perhaps they needed a lesson in accommodation. Next term, the Supreme Court is going to provide us one on pregnancy discrimination, as Phil Miles reports on his Lawffice Space blog, in SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case.


About a Girl — Nirvana (1994)


Nirvana originally recorded About a Girl in 1988, but it did not become a hit until Nirvana’s MTV Unplugged performance years later. The Beatles inspired Kurt Cobain to write the song. The Supreme Court’s Hobby Lobby decision was about a girl who could not buy certain birth control under her employer’s medical insurance, as Heather Bussing, at HR Examiner, explains in What the Hobby Lobby Case Means.


Weezer — Undone, The Sweater Song (1994)


According to Rivers Cuomo, this song is about that feeling you get when the train stops and the little guy comes knocking at your door. That explanation is as cryptic as the song. Perhaps a better explanation is found in Why employee use of social media “off the clock” may still impact your workplace, from Eric Meyer’s The Employer Handbook Blog. Maybe it’s the same feeling you get if you don’t education yourself about your employee’s off-the-clock social media use.


Hunger Strike — Temple of the Dog (1992)


Temple of the Dog is an amalgam between Soundgarden and Pearl Jam. Did you know that Eddie Vedder, who had flown to Seattle from San Diego to audition for Mookie Blaylock (which would later become Pearl Jam), and was only supposed to sign back-up on Hunger Strike? Chris Cornell, however, so much liked how Vedder sang the song, it ended up as a duet. And, the rest is grunge history. Do you smoke pot (legally, of course)? Then, there’s no hunger strike for you, given your propensity to the munchies. Can you fire someone who smokes pot (legally, of course)? Read Florida Legalizes Medical “Marijuana” But You Can Still Be Fired For It, from Donna Ballman’s Screw You Guy’s, I’m Going Home, to find out.


Bullet with Butterfly Wings — Smashing Pumpkins (1995)


Vampires and rats in cages? Believe it, or not. Here’s Employment law BELIEVE IT OR NOT! from Robin Shea’s Employment & Labor Insider.


Interstate Love Song — Stone Temple Pilots (1994)


According to Scott Weiland, this song is about honesty, lack of honesty, and his then-newfound love for heroin. Pretty bleak stuff, if you ask me. Do you know what else is bleak? Not correctly paying your employees, as explained in Holiday Pay for Employees with Alternative Work Schedules from Wage & Hour Insights.


Sabotage — Beastie Boys (1994)


For my money, this is the greatest music video of all time. This, along with Weezer’s Happy Days-inspired Buddy Holly, made a name for Spike Jonze, who went on to direct the Oscar-nominated films Being John Malkovich and Her. For the past six years, federal agencies have been trying to sabotage employers, according to Is the EEOC the new NLRB?, from John Holmquist’s Michigan Employment Law Connection.


Green Day — Basket Case (1994)


“Do you have the time / To listen to me whine?” Trying to figure out the hows and whens of inflexible leave of absence policies will turn you into a basked case. Just ask Dan Schwartz, who, on his Connecticut Employment Law Blog, posted Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes.


Give It Away — Red Hot Chili Peppers (1991)


This song is all about the philosophy of selflessness and altruism. Employers seldom adopt this philosophy when settling lawsuits. When settling lawsuits with employees age 40 or over, don’t forget about the OWBPA, as explained in Settlement and the Older Workers Benefit Protection Act, from Robert Fitzpatrick on Employment Law.

---

Eric Meyer, the author of The Employer Handbook blog and currator of this fine Carnival, will host next month’s Employment Law Blog Carnival, on August 20. If you want to participate, email him a link to your employment-law-related blog post by August 15.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with edition #329.

A rock-and-roll employment lesson, via the Old 97’s

Last Thursday night, I took my daughter to see the Old 97’s. By way of backstory, Norah performed an Old 97’s song, The New Kid, during her first concert for School of Rock back in January. I tweeted the link to the video to the band’s lead singer, Rhett Miller, who was kind enough (and cool enough) to tweet back, as was the band, who called Norah “badass.” The band was also nice enough to share the video on their Facebook page.

Thanks to a kind gesture from a good friend, Norah and I got to go backstage before the show to meet Rhett. He remembered Norah’s performance from YouTube, they talked about school and his 8-year-old daughter, he told her to call him when she gets her first paying gig, and he posed for some pictures.

The downside of going backstage before a SRO show, however, is that we lost our front-of-stage spot. The upside of going to a concert with an 8-year-old is that she can wiggle her way back through the crowd, and I get to say, “Excuse me, I can’t lose my kid.” Norah found her way back to the front of the stage, right in front of guitarist Ken Bethea, and managed to sit on the stage for the entire concert.

Being that close, I could see the setlist taped to the stage. It certainly appeared to me that the band changed their set mid-show to add The New Kid. Before the song, Rhett talked about Norah and her YouTube video, and called her “a cool kid”. And all these people around us start saying to Norah, “Oh my god! You’re the girl from YouTube. You rock!” Knowing her, I’m surprised she didn’t stand up and take a bow.

During Big Brown Eyes, Rhett appeared to look right a Norah, and, with a big smile, sang the line, “You made a big impression for a girl of your size.”

Rhett name checked Norah again while apologizing to her for the swearing during the show (sorry, video NSFW).

At the end of the show, Rhett walked up to Norah and said, “Norah, this is for you,” and handed her his pick. She was beaming.

It was a magical night for Norah, and I am so happy I got to share it with her. BTW, the band is great live, and if they are in your area, this summer or any other time, you should definitely check them out.

Employers, here’s your homework assignment. Create some magic for your employees. Rhett could have said no when someone asked if we could come backstage, but he didn’t. He didn’t have to change their setlist to add a song, but he did. In fact, he didn’t have to do anything to make Norah feel special, but he did—more than most in his situation would have—and he nurtured a fan for life.

You can (and should) do the same for your employees. And you don’t need big, expensive gestures. The small things count. Here are a few ideas to engage your employees, demonstrate your appreciation of them, and keep them content and engaged:

• Ask peers to nominate and vote for an employee of the month, whom you recognize with a plaque and gift certificate to a local restaurant.
• Start a staff-appreciation program, in which employees earn points for behavior you want to incent (such as attendance or punctuality), and can trade in those points for rewards (such as an extra vacation day).
• Randomly provide longer lunch breaks, in recognition of jobs well done.
• Circulate department or company-wide emails to praise employees when they have successfully completed a project or otherwise done something worthy of recognition.
• And, the easiest one of all, pay praise forward. If one employee says something nice about another, make sure the recipient knows about it, as soon as possible.

WIRTW #324 (the “Wir werden du bald sehen” edition)

I have used this space to write a lot about my family. You know I’m married, have two amazing children, Norah and Donovan, and a dog. But, you may not know that my family includes a teenager too. We call her our German daughter. She’s been living with us for the past 10 months. Next week, she leaves us to go home. You never know what the experience will bring when you permit someone to share your home and your lives for a year. We hoped for the best, and with our year coming to a close, I can say we got it. We gained another member of family, albeit one that lives more than 4,000 miles away. I will always think of Zarah as our German daughter.

For more on the experience, please read my wife’s thoughts on her blog.

As for Zarah, this is not, “Auf Weidersein,” but, “Wir werden du bald sehen.”

Here’s the rest of what I read this week:

Discrimination

• Sex at work: test your knowledge! — from Robin Shea’s Employment and Labor Insider
• Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs — from Donna Ballman’s Screw You Guys, I’m Going Home
• The EEOC is Focusing on Systemic Harassment. So Should You. — from Jonathan Segal
• Does Telling Me To Stop Complaining Count As Discrimination? — from Evil Skippy at Work
• Miles on Pregnant Workers Fairness Act — from Phil Miles’s Lawffice Space
• “Racism In The Everydayness” — from Employment Discrimination Report

Social Media & Workplace Technology

• “This man says he’s willing to die so he can post naked pictures without getting fired” — from How Appealing
• Why Social Media is Becoming an HR Issue — from GMS Blog
• Employers crack down on social media abuse — from Business Management Daily
• 20 cool iOS 8 features that Apple barely even mentioned at WWDC 2014 — from Boy Genius Report

HR & Employee Relations

• What Single Policy Could Ease Americans’ Time Crunch? — from Time
• Employment at-will trumps the 2nd Amendment (Yes, you can fire the employee who shoots a gun at work) — from Eric Meyer’s Employer Handbook Blog
• By 2020 Millennials Will Represent 40% of the Workforce. Are You Ready? — from Blogging4Jobs
• Employment Protections for Medical Marijuana — from Minnesota Employer

Wage & Hour

• FLSA Transparency Threat Persists — from Compensation Cafe
• Overhauling overtime — from HR Hero Line
• Telecommuters, Minimum Wage and Overtime — Oh My! — from The Emplawyerologist
• FLSA Overtime, Minimum Wage Lawsuits Continue to Skyrocket — from Wage & Hour Insights

Labor Relations

• One Is the Loneliest Number….But Even Acting Alone Employees May Be Engaged in Concerted Activity — from All in a Day’s Work
• NLRB Round-up: The Long Arm of Labor Law — from Blogging4Jobs
• Threatening the boss: the NLRB weighs in — from Michigan Employment Law Connection
• NLRB Finds Employee’s Profane and Insubordinate Conduct Shielded by Protected Activity — from Labor Relations Today

WIRTW #322 (the “indestructible butterflies” edition)

One of the benefits of writing this blog is that, every once in a while, I get the opportunity to very publicly brag about one of my kids doing something awesome. Today is one of those days.

Last weekend, my 7-year-old, Norah, killed on stage, performing with her band for Strongsville’s School of Rock. The setlist:

• Twist and Shout — The Isley Brothers / The Beatles
• Time Warp — Rocky Horror Picture Show*
• Question — Old 97’s**
• Fortunate Son — Creedence Clearwater Revival

*For the record, even though, as you’ll see in the video, the Time Warp was my daughter’s add to the setlist, she’s never seen the movie. What kind of dad do you think I am? She learned the song from playing Just Dance 4.

**If you’re in the Cleveland area, the Old 97’s are playing the Beachland Ballroom on June 5. I’ll be there (with my wife and daughter). Please say hi if you’re there too.

Here’s the video of Saturday’s performance by Psycho Sister vs. The Indestructible Butterflies (yes, that’s the band’s name):

 

Here’s the rest of what I read this week:

Discrimination

• Two-Undecillion-Dollar Demand Spells Trouble for Au Bon Pain — from Lowering the Bar
• Accommodation of Pregnancy Complications Under the ADA and FMLA — from Minnesota Employer
• Has IBM Found a Way Around the OWBPA and Should Others Follow? — from Dan Schwartz’s Connecticut Employment Law Blog
• Employment Litigation Lottery: IBM steps away — from Robin Shea’s Employment & Labor Insider
• Should A “Racist Tax” Or Fines Be Levied To Stop Racial Harassment? — from Employment Discrimination Report
• How Much Is Too Much to Settle a Sexual Harassment or Wage and Hour Case? — from Employment Lawyer Blog
• Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep. — from Eric Meyer’s The Employer Handbook Blog

Social Media & Workplace Technology

• Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First! — from Molly DiBianca’s Delaware Employment Law Blog
• You won’t be able to stop reading this Twitter account that sends out random bits of overheard conversations in NYC — from Boy Genius Report

HR & Employee Relations

• Fired for What!? - Jay-Z v. Solange Fight Tape — from Phil Miles’s Lawffice Space
• What to Do When 20 Percent of Your Staff Is Pregnant — from Evil HR Lady, Suzanne Lucas
• Work-Life Balance: It’s About Choices and the Life You Really Want — from TLNT
• When MERS attacks! Are you ready? — from Mike Haberman’s Omega HR Solutions

Wage & Hour

• How to Avoid Intern Lawsuits this Summer Season — from In House
• The Use of Unpaid Interns: Is It Worth the Risk? — from The Employment Brief
• My Exempt Employee Has No PTO but Needs Time Off — from HR Daily Advisor
• I Don’t Always Round Time Entries, But When I Do...I Follow the FLSA Regs — from Wage & Hour Insights
• The Wage and Hour Litigation Epidemic Continues — from The Wage and Hour Litigation Blog
• Can an Employer Require a Doctor’s Note for Each Intermittent FMLA Absence? — from Jeff Nowak’s EMLA Insights

Labor Relations

• NLRB Continues to Increase Use of Section 10(J) Injunctions — from Management Memo
• NLRB Invites Briefs on Northwestern Case — from Labor Relations Institute
• Board ALJ Nixes Hooters Work Rules — from Labor Relations Today

WIRTW #305 (the “encore” edition)

In case you haven’t seen the latest and greatest band sweeping Cleveland’s western suburbs, I bring you Norah and the Troopers, courtesy of the Strongsville School of Rock blog (okay, now I’m flat-out shilling like an exuberant dad — full video here: http://youtu.be/IAxcUCleMtg).

And, while I’m shilling, it doesn’t get any better than some from Rhett Miller, the lead singer of The Old 97's (isn't Twitter great?)

So sweet! RT @jonhyman: Some love for my 7 yr old girl killing it on guitar and vocals on The New Kid last weekend? https://t.co/9PPw96WpPL
— Rhett Miller (@rhettmiller) January 23, 2014

Here’s the rest of what I read this week:

Discrimination

• EEOC: That Family Medical History is NONE OF YOUR Business — from Mike Haberman’s Omega HR Solutions
• Light Duty Only for Work-Related Injuries – Pregnancy Discrimination? — from The Blue Ink
• Who Is At Risk Of Being Sued Under the ADA? — from Employment Discrimination Report
• Gays can’t be excluded from juries because of sexual orientation, 9th Circuit says — from ABA Journal Daily News
• The EEOC Regulation You Need to Know When Making a “Material Change” to a Separation Agreement — from Dan Schwartz’s Connecticut Employment Law Blog
• Discrimination in a word: stereotypes — from Warren & Associates Blog

Social Media & Workplace Technology

• Social media? Anti-harassment? No workplace policy can prevent something this stupid — from Eric Meyer’s The Employer Handbook Blog
• Announcing a layoff on Facebook — from Ask a Manager
• Smartphones, Social Media and Sexual Harassment: 5 Steps to Mitigate the Risks of Hostile Work Environment Claims in the Workplace — from Employment Law Lookout
• 9th Circuit Court of Appeals Rules Bloggers Have First Amendment Protection — from Shear on Social Media Law
• Internet Harassment Is Nothing New — from The Daily Beast
• Struggling at the (Computer) Games of Life — from Harvard Business Review

HR & Employee Relations

• We Don’t Hire Jerks. Period. — from Evil HR Lady, Suzanne Lucas
• After Your “Daddy Days” End — from Harvard Business Review
• 3 HR Lessons I Learned In Vienna — from Molly DiBianca’s Delaware Employment Law Blog
• Employer Liability for Distracted Workers and Drivers is Plentiful — from Matt Austin Labor Law
• 3 Ways Letters of Reference Cause Problems for Employers — from California Employment Law
• Why the COOs of Yahoo and Family Dollar Stores Have Been Fired for Poor Performance But Will Get Millions in Severance - Further Adventures in “With” and “Without Cause” Terminations under Executive Employment Agreements — from Suits by Suits
• Doctors to sick people: “Stay home!” — from The Human Race Horses

Wage & Hour

• Raiders Cheerleader Files Wage and Hour Lawsuit — from Phil Miles’ Lawffice Space
• FLSA Companionship Services Exemption Will Narrow in 2015 — from Minnesota Employer
• Deciding How Much Employees and Owners Should Make — from You’re the Boss Blog
• 3 Ways Problems Arise With Employee Leave Tracking — from HR Daily Advisor
• Wage and Hour Compliance Priorities for 2014 — from Pennsylvania Labor and Employment Blog
• Employee stock ownership plans: Pros and cons for engaging employees — from Employment Intelligence

Labor Relations

• Don’t Believe The Hype When It Comes to NLRB Claims — from The HR Capitalist, Kris Dunn
• Give ‘Em The Boot! — from Labor Relations Institute

Stand by your employees: an ode to Norah and the Troopers

For the past nine months, my daughter has been taking guitar lessons at School of Rock in Strongsville. This past fall, we upped her from private lessons to the performance program, which, for the beginning students, is known as Rock 101. Her band started with four other kids, but quickly dwindled to just Norah, as the others bailed for various reasons. With a band of only one, the school initially suggested canceling the program for this session. Knowing my daughter, and believing both that she’d want to continue and would be comfortable even as the only child in the band, I asked that the show go on. And it did. And, what a show she gave this past weekend. Here are the results of her hard work.

I have some people to thank, and then I’ll get to the lesson of today’s post (so you don’t think I’m just using this space to shamelessly brag about the awesomeness of my 7-year-old daughter, playing to a standing-room-only house — and, yes, she was tears-to-my-eyes awesome). Thanks to John Koury, the GM of the Strongsville School of Rock, and Shelley Norehad, the school’s owner, for letting Norah do her thing, all by herself, and not cancelling the program as her band mates dropped out. Thank you also to Norah’s amazing guitar teacher, Ed Sotelo. And, finally, thank you Norah’s band: Kayleigh Hyland (bass, keys, and backing vocals, and also the Rock 101 director), Donald Pelc (guitar), and Dominic Velioniskis (drums).

Here’s the takeaway for employers. Stick with your employees, especially in times of difficulty and adversity. They might just surprise you, and may even do something amazing. It would have been very easy for School of Rock to decide that they couldn’t make money on a program of one, and tell us that Norah would have to wait until the Spring for her first Rock 101 experience. Instead, they embraced the enthusiasm and work ethic of a 7-year-old girl and let the show go on. As a result, they allowed her to walk off the stage with a club full of strangers chanting her name. (Contact me for booking info).

Of storks and honesty—avoid shifting reasons when defending an employment decision

“Norah doesn’t want to have babies when she’s older because she doesn’t want them cut out of her belly.” This is what my wife reports our six-year-old daughter told her a few weeks ago.

“I told her,” my wife continues,” that they don’t always have to cut them out of your belly. Sometimes, babies come out through your private parts.” Then she tells my daughter to leave it at that until she’s older. Norah,  curiosity apparently sated, hasn’t brought it up since.

My response: “What’s wrong with the stork?”

“I don’t want to lie to her,” my wife retorts.

“Santa Claus, Easter Bunny, Tooth Fairy … Stork. We lie to her all the time about these things. What’s wrong with the stork?!”

As it turns out, my wife is right (don’t let her read this; I’ll never hear the end of it). When we are caught in a lie, we lose credibility. And when we lose credibility, we are not trusted on the important stuff.

Case in point—Jones & Carter, Inc., which the National Labor Relations Board decided earlier this month. In that case, the Board found that the charged employer had unlawfully fired an employee for discussing salaries with coworkers. In and of itself, this case is not newsworthy. As the November 26, 2012, opinion of the Administrative Law Judge in the same case [pdf] pointed out in ruling for the terminated employee:

The Board has long held that an employer cannot lawfully prohibit employees from discussing matters such as their pay raises, rates of pay, and perceived inequities. Accordingly, when an employer forbids employees from discussing their wages among themselves without establishing a substantial and legitimate business justification for its policy, the employer violates the Act.

Pay attention, however, to why the ALJ and the NLRB ruled in the employee’s favor. They ruled for the employee because the employer lied about the reason for the termination:

Williams [the HR manager] and Cotton [the chief operating officer] gave markedly different testimony at the [unemployment] hearing as compared to their testimony in these proceedings. During the hearing before the Board, both Williams and Cotton maintained that Teare was terminated for harassing Janik rather than for discussing salary information. During the [unemployment] hearing, however, both Williams and Cotton asserted that Teare’s discharge resulted from her violation of Respondent’s confidentiality policy…. [A]n employer’s shifting reasons for discharge may provide evidence of an unlawful motivation.

It’s trite to say honesty is the best policy. But, when defending an employment case, honesty and consistency are essential. And, if you can’t be honest because the honest reason is illegal, then maybe you should consider biting the bullet and settling.

photo credit: Enokson via photopin cc

Officially announcing the release of The Employer Bill of Rights

After a “soft launch” a couple of weeks ago, I am officially announcing the launch of my latest book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations. Among other topics, it covers—

• How to make personnel decisions that will help avoid costly litigation.
• The who, what, why, when, where, and how of each of the major federal employment discrimination laws.
• Cutting-edge human resources issues such as wage-and-hour disputes and managing social media in the workplace.
• How to hire and fire employee without the fear of an expensive lawsuit.
• How to control operations by implementing legal policies and procedures related to plant shut downs, employee scheduling, work rules, and the maintenance of confidential information.
• The importance of following the Golden Rule in all personnel matters.

I’m really proud of how the book turned out.

I have a lot of people to thank. Here’s what I wrote in the book’s acknowledgements:

First, I must thank all of my partners at Kohrman Jackson & Krantz and, especially, our managing partner, Marc Krantz, who knows that there exist many ways for a lawyer to market himself or herself. He never hesitated when I suggested that I author a legal blog or write a book (or two), and for his support I am eternally grateful.

Before attending law school, I worked at a few jobs that were less than glamorous. To all of the people who shared those jobs with me, thank you for unknowingly and unwittingly helping me craft my views on the modern workplace.

Thank you to anyone who has ever published anything I have written, quoted me in an article, hosted me on a show, invited me to speak at an event, re-tweeted one of my 140-character thoughts, or linked to my blog. Without each of you, this book would not have occurred.

I thank the wonderful publishing team at Apress—Jeff Olson, Robert Hutchinson, and Rita Fernando—along with the publisher itself. They made the writing process work smoothly, which was essential as I juggled the authoring of this book with my full-time legal practice. They also patiently put up with my less-than-perfect execution of their SharePoint site as we worked though the editorial process.

Thank you to my parents, who taught me the value of education without ever pushing too hard.

Finally, thank you to my family—Colleen, Norah, and Donovan. You put up with my late-night and early-morning blogging and writing. You sometimes suffer in my absence caused by long workdays, late nights, or out-of-town trips. Yet, if I did not know that you are always standing behind me, none of it would be worth it. Thank you for loving me for who I am and supporting me for what I do.

If you want to purchase the book, it’s available in several places and formats:

• Amazon – paperback
• Amazon – Kindle (available soon)
• Barnes & Noble – paperback
• eBook

I have also been told that an iBooks version is coming, although Apple runs a tad behind the others on its approvals.

I cannot think of a better stocking stuffer for that special business owner, manager, supervisor, or HR professional in your life. Amazon will even gift wrap it for you.

---

If you want to hear me talk about the book, you can tune in tomorrow to Stephanie Thomas’s The Proactive Employer. I’ll be live at 3 pm (and available on-demand thereafter) to discuss why employers need a bill of rights, the areas of greatest legal concern for employers, and how my book can help businesses make informed decisions and hedge against the biggest errors that too often result in expensive and time-consuming lawsuits.

A Hanukkah lesson for employers

The story of Hanukkah tells us that in 165 B.C., the Maccabees led a successful revolt against the Greeks, who had invaded Jerusalem and outlawed Judaism. When the Maccabees rededicated the Holy Temple after expelling the Greeks, they only located enough olive oil for the Temple’s menorah to burn for one night. That oil, however, burned for eight nights, the time needed to prepare a fresh supply—the miracle of Hanukkah.

I’ve been thinking of a way to tie this story to the workplace and impart a lesson to employers. The story of Hanukkah is one of perseverance, courage, and fighting for one’s beliefs. Employers are under assault from all fronts—lawsuits from disgruntled employees, overly zealous regulatory agencies and their overly burdensome regulations, and courts that can lack sufficient resources to address these issues properly. It’s easy for businesses throw in the towel, such as by relocating operations out of the country or by paying ransoms to settle meritless lawsuits. Perhaps the lesson here is to simply hold firm.

Happy Hanukkah.

You’d think a businesses named “Menorah House” would know something about accommodating the Sabbath

The EEOC is alleging that Menorah House, a Boca Raton, Florida, nursing home, violated Title VII when it fired an employee who wanted time off to observe the Sabbath. From the EEOC’s press release:

According to the EEOC’s suit … Menorah House denied a religious accommodation to Philomene Augustin and fired her because of her religious beliefs. Augustin … is a Seventh-Day Adventist, and her Sabbath is from sundown on Friday to sundown on Saturday evening. Menorah House had accommodated Augustin’s request not to work on her Sabbath for over ten years until management instituted a new policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

When will accommodating the weekly Sabbath requests of an employee pose an undue hardship?

• If it would require hiring additional employees.
• If it would require paying other employees overtime.
• If other employees refuse to voluntarily swap shifts to cover.
• If it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.

If, however, an employer can schedule around the request without adding employees or costs, or without forcing employees to swap shifts, then the accommodation likely should be made.

If the facts as alleged by the EEOC are true, this employer should have forsaken its across-the-board prohibition against Saturdays off. Instead, it should have engaged in a cooperative information-sharing process with the employee to determine if it could provide a reasonable accommodation without incurring an undue hardship.

For more information on religious discrimination and reasonable accommodations, the EEOC offers the following resources on its website:

• Compliance Manual on Religious Discrimination
• Questions and Answers: Religious Discrimination in the Workplace
• Best Practices for Eradicating Religious Discrimination in the Workplace

---

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #163 (the all good things must come to and end edition)

I’m sorry to leave you all alone
you’re sitting silent by the phone
but we’d always known there would come a day
the bus is warm and softly lit
and a hundred people ride in it
I guess I’m just another running away 

I’m gonna pick it up
I’m gonna pick it up today
I’m bound pack it up
I’m bound pack it up and go away 

—I’m Bound to Pack It Up, The White Stripes

Don’t get scared. This blog lives on. But, from this point forward, February 2nd will no longer be know as Groundhog Day, but as the day The White Stripes broke up.


As for me, I’ll always have the memory of the first time I heard the opening chords of Dead Leaves and the Dirty Ground, and was hooked for life.
Here’s the rest of what I read this week:

Discrimination

• Protip: Do Not Buy A Vibrator For Any Lady At Your Office – from Above the Law
  
• There’s That Word Again - Bully – from Michael Fox’s Jottings By An Employer’s Lawyer
  
• Trouble ensues over office artwork with Bible reference – from Work Matters
  
• Is age discrimination running rampant, or is there another explanation? – from Employment and Labor Insider
  

Social Media & Technology

• What Is Facebook, Really? – from Harvard Business Review
  
• An employee filed a complaint? Facebook probably isn't an appropriate place to vent – from HR HQ
  
• Pew Research Center Study Finds Older Americans are Becoming More Active on the Internet Through Social Networking and Blogging – from the Digital Workplace Blog
  
• A Minute to Lose It: Why Every Health Care Professional Needs to Have a Social Media Policy. Now. – from Daniel Schwartz’s Connecticut Employment Law Blog
  
• Sharing The Love On Twitter - Does Courtney Love Become Less Defamatory By Using Social Media? – from Social Media Employment Law Blog
  

Labor Law

• Senators Restate Opposition to Becker Re-Nomination – from Seth Borden’s Labor Relations Today
  
• So Much for Comity: Business Groups To Fight Becker Renomination for NLRB – from Joe’s HR and Benefits Blog
  
• Becker Nomination Redux – from The ChamberPost
  
• 47 Senators oppose Becker nomination to NLRB – from LawMemo Employment Law Blog
  
• Do the New NLRB Rules Really Help Workers Organize? – from Workplace Fairness
  
• The NLRB Is On The Offensive – from The Metropolitan Corporate Counsel
  

Employee Relations & HR

• Can I Throw Away the Paper I-9 Once It's Been Scanned and Saved? – from the Delaware Employment Law Blog
  
• It's a Snow Day! Dealing with Inclement Weather and the Proper Payment of Wages – from Colorado Employer’s Law Blog
  
• More Employees Look To Employers For Medical Advice – from Workplace Diva
  
• Getting Down to Management Basics: My 5 Postulates of Employment Law – from TLNT
  
• Nepotism in the workplace – is this illegal? – from Employment Law Bits
  
• Dealing With Workplace Bullies: “There are a Lot of Fake Tough Guys Around Here” – from The HR Capitalist, Kris Dunn
  
• “Dirty Jobs” in HR – from Michael Haberman’s Omega HR Solutions
  

Wage & Hour

• Record Keeping Requirements Under the Fair Labor Standards Act: How Employers Can Best Protect Themselves – from Wage & Hour - Development & Highlights
  
• You Just Found Out Your Coworker Is Making More Than You. Now What? – from Evil HR Lady
  
• As FMLA Absences Mount, the Employer Must Lay Down the Law – from FMLA Insights
  
• Your employees are using more FMLA – from The Employer Handbook Blog
  

Litigation

• No Triggering Event, No Duty to Preserve – from Bow Tie Law’s Blog
  
• Guess Who’s Coming to the Deposition? – from From the Sidebar
  
• E-Discovery - Litigation Hold Rule on the Way? – from Philip Miles’s Lawffice Space
  

Non-Compete Agreements

• Should You Negotiate Your Non-Compete? Yes, and Here’s 5 Reasons Why – from Legal Developments In Non-Competition Agreements
  
• Why you should negotiate your non-compete – from Rob Radcliff’s Smooth Transitions