WIRTW #559 (the “Happy Birthday D-Man” edition)

This guy turns 11 on Sunday.

Happy birthday Donovan! Please keep making us smile.

Here’s what I read the past two weeks.

Discrimination

• No lockable private room for breast-feeding at workplace: $3.8 million award — via Overlawyered
• #MeToo: Looking to best teaching practices for effective training — via Employer Law Report
• What form of discrimination do juries hate most? (But, you’re probably doing the least to address.) — via Eric Meyer’s The Employer Handbook Blog
• “Sexual harassment” in the nature of the business — via Robin Shea’s Employment & Labor Insider
• 11th Cir.: Hospital employee fired for performance, not reporting racial slur — via HR Dive
• Federal Court Declares That a Ban on Mandatory Arbitration of Sexual Harassment Claims Is Inconsistent with Federal Law — via Financial Services Employment Law
• USWNT – Enough Already, This IS RIDICULOUS! — via Compensation Cafe
• Applicants are not required to disclose a pregnancy before or after being offered a job — via Richmond Times-Dispatch

HR & Employee Relations

• Your Job Candidates and New Hires are Ghosting You. This is What You’ve Earned and 9 True Tales of Ghosting at Work — via Evil HR Lady, Suzanne Lucas
• Yikes!!! Sometimes HR Pros and Managers Can Be Personally Liable for Violations!!! — via The EmpLAWyerologist, Janette Levey Frisch
• Office pranks shouldn’t end with the ER, vomit, or tears — via Ask a Manager
• Would You Fire Starbucks Employees Who Ask People to Leave for Questionable Reasons? — via The HR Capitalist
• Everybody Deserves PTO — via Laurie Ruettimann

Technology

• Border Patrol union president: Fire agents responsible for offensive Facebook posts — via CUE, Inc.
• Security Considerations in a BYOD Culture — via Dark Reading
• NIST Issues Report on Internet of Things Cybersecurity — via Ride The Lightning
• Cybersecurity For Businesses Part 1-How Cybersecurity Has Evolved — via Accellis
• Understanding Millennials’ And Technology’s Role In The Workforce, Part One — via Forbes
• More Companies Expanding Employee Monitoring — via EntertainHR
• Your Blockchain in HR Guide In Just 5 Minutes — via Workology

Wage & Hour

• To The Victors Go Few, If Any, Spoils In Wage And Hour Suits — via Law 360
• Can You Switch a Full-Time Worker Into a Contractor? — via Evil HR Lady, Suzanne Lucas
• Which Are They? Independent Contractors Or Employees? Navigating The Conflicts Between State And Federal Law — via Labor Employment Law Blog
• The cost of a $15 federal minimum wage — via Workplace Fairness
• Time Is Money: A Quick Wage-Hour Tip on … Time-Rounding Continue Reading — via Wage & Hour Defense Blog
• Dear Employers: You Can Go To Jail For Firing Employees Due To A Garnishment — via Donna Ballman’s Screw You Guys, I’m Going Home
• This One’s a Whopper! Court Puts Kibosh on Burger King Franchisee That Required Two Calls to Request FMLA Leave — via Jeff Nowak’s FMLA Insights

Labor

• NLRB speak on Employee Handbook Provisions (again). Private Sector Employers Take Note. — via BeLabor The Point
• The Gig Economy — via Labor Relations Institute
• NLRB Strengthens Employer Property Rights: What UPMC Means for Employers — via Hunton Employment & Labor Law Perspectives™
• NLRB Limits Duty to Bargain Over Disciplinary Actions — via Labor Employment Law Blog

OSHA & Safety

• Do I Have to Buy a Standing Desk for My Employee? — via upstartHR
• Sixth Circuit Strikes Down Workers’ Compensation Claimant Solicitation Law — via The Employment Brief
• Ohio Senate Removes Damaging Changes to Workers’ Compensation Budget — via Ohio Chamber Blog
• Nonprofit Workplaces — via Harvard Business Review
• What Else is at Issue in the BWC Budget Bill? — via Employers Workers’ Compensation Law Blog

Rob Mendez won the Jimmy V Award at last night’s ESPYS, and it might be the most inspiring thing you’ve ever seen

Rob Mendez coaches the JV football team at Prospect High School in Saratoga, California. He’s also lived his entire life with no arms and no legs. He was born with tetra-amelia syndrome, an extremely rare genetic disorder that prevented their embryonic formation. You can read Rob’s entire (and entirely) compelling story at this ESPN feature story, or watch it in this Jon Hamm-narrated featurette.

Last night, at ESPN’s annual sports awards, the network honored Rob Mendez with its Jimmy V Award for Perseverance.

As compelling and inspiring as he and his story are, so was his acceptance speech last night.

Why are employers testing job applicants for prescription medications?

During a pre-employment medical examination and drug screen, an applicant tests positive for Alprazolam, the generic form of Xanax (a medication commonly prescribed for anxiety), a fact she had already disclosed during the examination. The doctor performing the medical exam and reviewing the drug screen concludes that the applicant is medically acceptable for work as an intake specialist at an inpatient mental health facility. The employer, however, has other ideas. It withdraws the job offer without providing the applicant any opportunity to discuss the results.

The applicant sues, claiming disability discrimination.

Who wins?

NLRB offers significant and important guidance on its new(ish) employee handbook rules

It’s been just over 18 months since the NLRB decided Boeing Co., perhaps its most significant decision in decades. It rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

In Boeing, the Board scrapped Lutheran Heritage’s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).” It was a huge win for employers drafting and issuing workplace policies.

Why, yesterday, in France was a stadium full of people chanting “EQUAL PAY?”

Indisputable fact no. 1: Women and men should earn the same pay for the same work.

Indisputable fact no. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team.

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

4 ways your employees are like a new puppy

We are on day 5 of new puppy in the Hyman household. Dante is adjusting well, as are we (including big sister Loula … more or less). It’s been 7 years since we last raised a puppy. And the thing I forgot the most is just how many rules there are.

There’s no such thing as “reverse” discrimination—it’s all just discrimination

According to the New York Post, a Caucasian 20-year veteran attorney for the Legal Aid Society is suing her former employer for race discrimination. Among other issues in her lawsuit, she claims that she was denied a lateral move “because of ‘diversity considerations.’”

Do you know that some courts impose a different, higher legal standard for discrimination against white employees than for discrimination against African-American employees?

Don’t forget about overtime pay when providing bonuses to non-exempt employees

Last week Chipotle announced a new bonus plan that could earn its employees up to an extra month of pay each year. Per the chain’s press release, the program is offered quarterly and can result in a bonus worth one week’s pay, calculated as an individual’s average weekly pay per quarter. To qualify for the quarterly bonus program, restaurant teams must meet certain sales and cash goals.

This bonus program has the potential to be a great way for the restaurant to break through in a tight labor market to attract talent. It also, however, has the potential to pose an FLSA nightmare. Bonus payments often count as part of a non-exempt employee’s regular rate of pay, thereby increasing the overtime premium owed to that employee.

Does an employer have a duty to protect the personal information of its employees? (Part 3)

Employees trust their employers with a whole bunch of personal information. Social security numbers, medical documents, insurance records, birth dates, criminal records, credit reports, family information, etc. And it’s not like employees have a choice over whether to disclose and entrust this information to their employer. These documents are all necessary if employees want to get hired, get paid, and obtain health insurance and other benefits. Thus, an employer’s personnel records are a treasure trove of PII (personally identifiable information — any data that could potentially identify a specific individual, which can be used to distinguish one person from another and de-anonymizing otherwise anonymous data).

For this reason, cyber-criminals target myriad businesses in an attempt to steal (and then sell on the dark web) this data.

If a company is hacked, and employees’ PII or other data is stolen, is their employer liable to its employees for any damages caused by the data breach?

Facebook video sinks employee’s FMLA claim

Everything was going swimmingly for Thomas Dunger during his approved FMLA leave from his job as a mechanic for Union Pacific Railroad … until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to Dunger’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing Dunger copped to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and Union Pacific ultimately fired him. 

Employers are making new dog ownership a little less ruff by offering “pawternity” leave

In three days, my family grows by one. We’re adding a puppy.

My wife and kids have been clamoring for a new dog for a year. Loula (our current dog) is seven years old, and they don’t want to be in a position of not having a dog in our family. Plus, we don’t want to wait until Loula’s too old to tolerate the energy of a new puppy.

The Customer isn’t always right: The Museum of Sex(ual harassment)

Just because an employee works at The Museum of Sex does not mean that she wants be sexually harassed. Or least that’s what Katherine McMahon alleges in her lawsuit against her former employer.

The New York Post offers the salacious details:

“Patrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives,” the suit alleges. 

WIRTW #557 (the “infinity and beyond” edition)

Toy Story has played a huge party in my life. Donovan is a Toy Story fanatic. He’s seen every movie hundreds of times. He has what seems like every toy and every stuffy. Until the age of 6, every article of clothing he owned had a Toy Story character on it somewhere. Buzz and Woody (but especially Buzz) got him (and, by extension, us) through some really tough times when Donovan was a toddler. How could we do anything other than see Toy Story 4 on opening night.

My four word, spoiler-free review: Go now! (Bring tissues.)

My slightly longer, still spoiler-free review: Lots and lots of tissues.

My even longer, yet still spoiler-free review: Nostalgia has a very strong pull. It’s apt that much of this movie takes place in an antique shop, a place that’s all about nostalgia. Toy Story is extraordinarily nostalgic for my family, and if this is end of the road for the series, I can’t imagine a better ending.

Here’s what I read this week:

Is blockchain technology the next frontier in combating sexual harassment?

According to Employee Benefit News, Vault Platform has developed an app that uses blockchain technology to allow employees to document and report workplace sexual harassment on their smartphones.

“Interesting,” you say,” but what’s blockchain technology?”

The 12th nominee for the “worst employer of 2019” is … the disguised doctor

Norma Melgoza, a long-time employee of Rush University Medical Center, is suing her employer for sex discrimination and equal-pay violations stemming from a denied application for a promotion.

In support of her claim of glass ceiling gender bias, Melgoza points to certain misconduct of the interviewing physician. I’ll let the district court explain.

What’s a hostile work environment? You’ll know it when you see it.

“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).

I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.

How long of a leash must you give an employee before firing?

When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.

I ask these questions for two reasons:

1. Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.


2. Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.

So what does quality documentation to support a termination look like? Consider Anderson v. Greater Cleveland Regional Transit Authority (N.D. Ohio May 29, 2019).

Do your employees understand that social media is a very public conversation?

“It’s 2019. All of our employees have been on Facebook for years. Many are also on Twitter, and Instagram, and … We don’t need to do any social media training.”

If you’ve had these thoughts or internal conversations, allow me to offer Exhibit 1 as to why you are wrong.

Texas district votes to fire teacher who tried to report

undocumented students to Trump on Twitter

WIRTW #556 (the “comfort zone” edition)

My comfort zone is most definitely not at a biker rally. Yet, that's where I found myself last Saturday afternoon. The things we do for our kids. 🤷‍♂️

Click here for Fake ID’s killer set opener, War Pigs, by Black Sabbath, recorded at the Ohio Bike Week Block Party.

Needless to say, I’m pretty darn proud of my (not so) little girl.

Your next chance to see them live is June 15 at Crocker Park, in Westlake, Ohio. Details here for this free show.

Here’s what I read this week.

An obituary for employment at-will

Over at her employee-rights blog, Screw You Guys, I’m Going Home, attorney Donna Ballman asks, “Is is time to terminate at-will employment laws?“

Well, Donna, there’s no need to terminate these laws; they are already dead.