Why I’m a management-side lawyer

Every now and again it’s worth pulling a post out of the archives for a rerun.

Today, I look all the way back to April 15, 2008, for one of these reruns, to answer the question—

Why am I a management-side attorney?

Is employee copying of documents protected activity or unlawful stealing?

It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.

Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.

But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?

Does an employee have a right to copy your documents to prepare a discrimination lawsuit?

SNL tackles #MeToo, but what should you do when employees discuss #MeToo at work?

How do you discuss sexual harassment and other sexual misconduct with your friends and colleagues?

Saturday Night Live, in one of its most brilliant sketches in a long time, offers a suggestion.


Or, rather, a suggestion not to have the conversation at all.

WIRTW #491 (the “rage” edition)

Last Friday, Fake ID played to a packed house at The Symposium, an old school rock club in Lakewood, Ohio. And, they absolutely brought down the house. Here’s their set closer, Rage Against the Machine’s “Killing in the Name.”


Why am I posting of video of a bunch of teen and preteen kids playing music? For starters, my daughter is the lead singer, and I think they’re very worthy of sharing.

Also, Fake ID teaches us a couple of employment lessons.

Age is not a valid predictor for success. Fake ID is comprised of two 11 year olds (including Norah) and three 14 year olds. In my opinion, they perform well above their young ages suggest. Don’t judge your employees, or prospective employees, by their age, judge them on their abilities and talents, whether old or young.

Talent is not a substitute for hard work. What impresses me most about how well Fake ID performs isn’t the performance, but all of the time and effort they put in to honing it. Lots of great talent wastes away by laziness and apathy. Your best employees will be the ones that work the hardest, period.

You have one more chance to catch Fake ID live this month, at Sky Zone Highland Heights, tomorrow, January 27, from 7 - 8:30 pm. No cover for the music, regular jumping rates apply.

Here’s what I read this week.

The Wile E. Coyote method of noncompete litigation

Wile E. Coyote. Forever chasing the Roadrunner. Always ending up falling off a cliff or crushed under a giant boulder.

Noncompete litigation. Sometimes you win an injunction. Sometimes the court drops a big boulder on your head.

Employee leave rights and the flu

I’m typing today’s post from my bed, where I convalesce with the flu.

Since I’m at home with the flu, I thought it worthwhile to discuss the leave-of-absence rights of employees with this illness.

Walmart (yes, Walmart) has now done more for worker rights than the U.S. government

Image by Sven via Wikimedia Commons

Earlier this month, Walmart announced sweeping additions to how it compensates its employees.

The 3rd nominee for the “worst employer of 2018” is … the camera creep

The third nominee for the Worst Employer of 2018 might be the creepiest I’ve shared yet.

From the Tampa Bay Times (c/o the ABA Journal):

Attorney James Patrick Stanton, accused of secretly videotaping nude and partially clothed female employees of a Tampa company, has agreed to never practice law again in Florida. 

WIRTW #490 (the “hilarious world of depression” edition)

Mental illness, especially among our youth, is an issue about which we do not pay nearly enough attention (to wit: this week’s suicide of Washington State quarterback Tyler Hilinski).

Today, I recommend that everyone check out The Hilarious World of Depression podcast.

The Hilarious World of Depression is a series of frank, moving, and, yes, funny conversations with top comedians who have dealt with this disease, hosted by veteran humorist and public radio host John Moe. Join guests … to learn how they’ve dealt with depression and managed to laugh along the way. If you have not met the disease personally, it’s almost certain that someone you know has, whether it’s a friend, family member, colleague, or neighbor. Depression is a vicious cycle of solitude and stigma that leaves people miserable and sometimes dead. Frankly, we’re not going to put up with that anymore. The Hilarious World of Depression is not medical treatment and should not be seen as a substitute for therapy or medication. But it is a chance to gain some insight, have a few laughs, and realize that people with depression are not alone and that together, we can all feel a bit better.

As a launching point, I recommend the January 2 episode featuring Rhett Miller (who also wrote and performs the podcast’s theme song, about “the world’s greatest clown”). Rhett talks frankly about his own teenage suicide attempt and how music saved his life. It’s a supremely worthwhile listen from one of the world’s great songwriters, and an all around good guy.

Here’s what I read this week:

Employee’s refusal to take drug test dooms discrimination claim

Can an employee, terminated for refusing to submit to a “reasonable suspicion” drug test, sue the employer for discrimination?

According to one recent federal district court opinion (and good ol’ common sense), the answer is no.

Employers win when they support the Sandwich Generation

I am declaring today New Year’s Day 2.0.

To put it bluntly, the first 16 days of 2018 sucked. I need a do over.

This has been my 2018 to date.

How likely are you to sexually harass?

Are you tired of seeing your Facebook feed littered with the results of your friends’ quizzes, with titles such as, “Which Game of Thrones Character are You?” or “Which Disney Couple Defines You?”

Well, I have one more quiz for you to take, and this one may just pique your interest.

It’s the Likelihood to Sexually Harass quiz.

Today’s America would deeply disturb Dr. MLK

A date appropriate reminder that our nation works better when our leaders seek to unite rather than divide.


We should strive to take these words to heart.

WIRTW #489 (the “on tour” edition)

It’s been awhile since I’ve posted a family rock ‘n’ roll update, so here it goes.

If you’re in the Cleveland area, you have three chances to catch Fake ID this month.

The Sky Zone shows are free. Tickets for the Symposium show are $6.

To stay updated on all things Fake ID, you should follow them on Facebook, Instagram, and YouTube.

Here’s what I read this week:

An argument for a more reasonable bereavement leave policy

I’ve been thinking a lot lately about death.

These past few days have been the first time I’ve had to deal with it on a family level as an adult. And there’s a lot to think about.

And it’s not just the grieving, and the crying, and the mourning.

It’s also time.

The 2nd nominee for the “worst employer of 2018” is … the arresting school board

There are lots of correct ways to respond to employee complaints.

Handcuffing and arresting the employee is most definitely NOT one of them. 

Yet, this is exactly what the Vermilion, Louisiana, school board did when a teacher, Deyshia Hargrave, tried to raise concerns at a board meeting about a proposed raise for her boss, Superintendent Jerome Puyau.

Thus, I have nominated this employer as the Worst Employer of 2018.

Sadness

We are incredibly sad today, as my mother-in-law passed away. Norah told me that her head was swimming and that she couldn’t process her emotions. I told her that while I couldn’t tell her how she should feel, I could share with her how I was feeling — sad, because I loved her and will miss her terribly, but also happy and blessed, because I got to have her as part of my life for the past 16 years.

A post shared by Jon Hyman (@jonhyman) on Jan 4, 2018 at 5:47pm PST

I’ll be back in the blogging mood sometime next week.

A real stinker of an ADA lawsuit

Amber Bridges, the former Lead Staff in the City of Indianapolis Magistrate Court, claims that her efforts to ease employees’ complaints about a co-worker's body odor got her fired.

When employees and staff members began to complain about the co-worker’s “chronic body odor,” Bridges installed air fresheners throughout the office.

Months later, however, the malodorous employee complained to her boss that the air fresheners created a hostile work environment. As a result, the City fired Bridges.

We have now entered the harassment-overreaction phase

When one of your biggest stars loses his high-profile job in one the year’s biggest sexual harassment scandals, how to you react?

With a brand new, and painfully detailed, anti-harassment policy.

The 1st nominee for the “worst employer of 2018” is … the holy harasser

The inaugural nominee for the Worst Employer of 2018 is a doozy.

I bring you (courtesy of the New York Post) the holy harasser.

The 12 Days of Employment Law Christmas (2017 edition)

For the past five Noels, I’ve concluded my posting year with “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again (with updated verses and links). If you’re feeling brave, post a video of yourself singing along.

(Some musical accompaniment)

Announcing THE WORST EMPLOYER OF 2017

The day has finally arrived. It’s time to announce the Worst Employer of 2017.

To remind you, we had three finalists in contention for this … honor:

Amid all of the sexual harassment concerns, let us not forget that other types of harassment exist

So much of the news lately has focused on sexual harassment, that it’s easy for one to forget that other types of harassment also exist.

For example, racial harassment.

Since we are but a week away from Christmas, I thought it appropriate to use a holiday-time example to illustrate.

NLRB restores sanity to its rules on employee handbooks and joint employment

Last week, the NLRB started making good on its promise to roll back some of its more controversial Obama-era reforms—its assault on employee handbooks and its liberalization of joint employment.

WIRTW #488 (the “all harassment, all the time” edition)

As you’ll see below, sexual harassment has become such a big story that it’s (sadly) earned it’s own headlining category in my weekly recap of What I Read This Week. I am looking forward to the day (hopefully sooner rather than later) when I can delete it.

For now, sexual harassment continues to dominate the headlines, both general and employment law. This week, I guested on the Talent 10x podcast to discuss sexual harassment at Work in a Post-Weinstein World.

Here’s what I read this week:

New OFCCP director inherits a criticized agency

If you are a federal contractor or subcontractor, the letters O-F-C-C-P hold real meaning for you. They stand for Office of Federal Contract Compliance Programs. It is the federal agency which ensures that employers doing business with the federal government (i.e., those holding federal contracts and subcontracts) comply with federal laws and regulations requiring nondiscrimination in employment, including their affirmative action obligations.

Yesterday, the OFCCP named Ondray T. Harris as its new Director.

Today is your last day to vote for the WORST EMPLOYER OF 2017

If you have not yet voted for the Worst Employer of 2017, your time is running very short. The polls close at 11 pm today.

Who is your favorite?

• The Cancerous Boss — company fires employee who needs a 10-day leave of absence for cancer surgery; tells him she doesn’t “need people with cancer working in her office”

• The Racist Boss — employer that gifts an African American employee a confederate flag purse as a Christmas gift after she had complained about harassment

• The Horny Head of HR — employer ignores employee’s complaints about the HR head’s lascivious conduct and inappropriate text messages; tells him, “I hope you’re not going to sue me,” while nibbling on his ear

Vote now at www.surveymonkey.com/r/worstemployer.

I’ll announce the big winner (or the big loser, depending on your perspective) next week.

Did you miss the Employment Law Year in Review webinar? Today is your lucky day.

Last week, I had the pleasure of presenting, along with four other “top employment law bloggers” (at least according to Corporate Counsel), plus the Evil HR Lady herself, Suzanne Lucas, a webinar entitled the “Employment Law Year in Review.”

Response was much higher than anticipated for this event, so much so that we had to turn people away. I hate turning people away.

So, we decided to make the webinar recording available for everyone to enjoy.

It’s not #MeToo that’s killing your office holiday party; it’s your workplace culture

Last week, Fox News host Laura Ingraham asked if the #MeToo movement is ruining the office holiday party.


“Is the #MeToo movement becoming a spoiler for this season’s Christmas parties? … I can see this year it might a little less festive. No alcohol and no fun and no lampshades and no nothing, and, I don’t know, maybe that’s better. Is this just killing all the fun of Christmas?”

WIRTW #487 (the “(no) regrettes” edition)

One of my absolute favorite things to do is taking Norah to concerts. 

Wednesday, I’m taking her to a punk show.

SWMRS / The Interrupters / The Regrettes.

I have no doubt that I will be one of the oldest people there, maybe by a couple of decades. And, I don’t care a lick.

I love their music. I love being able to experience it with my daughter. And I’ll continue to love doing it for as long as she wants to hang with Dad at a concert.

So, if you find yourself at the Agora Wednesday night, look for us up in front of the stage. That’s where Norah likes to be, and I’ll be bouncing right next to her.

And, if you don't know The Regrettes, check them out. They might be the opener, but they are the band I am most excited to see.


What do you do to keep yourself feeling young? Share in the comments below.

Here’s what I read this week:

I am honored to have been the first ever guest on the Hostile Work Environment podcast

Have you cast your vote yet for the Worst Employer of 2017?

Whether your answer is “Yes,” “Not yet”, or “What are you talking about,” I recommend you listen to the latest installment of the Hostile Work Environment podcast (available today).

I was honored be the first guest ever on what has quickly become one of my favorite podcasts. (Thanks to Marc and Dennis!)

New Year’s Resolutions — NLRB-style

Have you started thinking about your New Year’s resolutions for 2018?

The NLRB’s newly minted general counsel, Peter Robb, has, and employers will be very happy.

Is this the worst harassment training video of all time, or is it the best?

Much of the news lately has focused on how we, as employers, can do a better job training and otherwise educating our employees about workplace harassment.

So, I ask—is this parody the worst harassment training video of all time, or, is it so bad, that it’s actually the best training video?


I think I’m leaning towards the latter—that this video is so brilliant in its awfulness that it might just make a really good training tool, or least part of great compliance and education program.

What do you think?

Share your thoughts in the comments below.

Our harassment laws are not the reason for our sexual harassment problem

Last week, the New York Times ran an Op-Ed titled, Boss Grab Your Breasts? That’s Not (Legally) Harassment.

It argues that our lax sexual harassment laws, and the courts that apply them, are responsible for our current workplace harassment problems.

WIRTW #486 (the “all apologies” edition)

Accused of sexual harassment? Don’t know what to do?

Thankfully, the Celebrity Perv Apology Generator has you covered.

Example?

As the father of daughters, I am deeply ashamed (but not “sorry” because that means I’m guilty of something). At the time I believed that my sociopathic manipulation of the 22-year-old in my office was consensual, and of course now I realize my behavior was wrong. In conclusion, I will get the help I so desperately need because this isn’t actually my fault, I have a problem so I’m not responsible for my actions.

(I’ll take this over Matt Lauer’s “apology” 10 times out of 10; at least this one is honest.)

Thank you, Dana Schwartz, Rob Sheridan, and Scott McCaughey, from bringing some much needed levity to an otherwise awful situation.

Here’s what I read the past two weeks:

How not to harass women, in one easy step

Last night we went to dinner at our favorite local restaurant. Donovan ordered his favorite dish—gluten free penne alfredo. He is not a great eater. Usually, despite this dish’s “favorite” status, he will eat two bites and proclaim, “I’m full.” Last night, the general manager, who was covering chef duties, decided to have a little fun at D-Man’s expense. Instead of a full plate of pasta, he sent a small dish with two lonely noodles. We howled. Donovan was not amused. We explained that sometimes teasing is an expression of affection, which was the category into which this little joke fell.

I’m happy to report that Donovan got over the good-natured joke, and, for the first time I can recall, cleared his full plate (after it was delivered to the table).

That was funny.

What’s not funny?

The Worst Employer of 2017: The Finalists

I started this journey all the way back on January 12, 2017, in a post discussing an employer who fired a man absent while attending his son’s birth.

This poll of the year’s worst employers seemed like a fun way to illustrate how employers shouldn’t act. Your response suggests that I might be on to something.

Almost one year and nearly 600 votes later, we’ve cut the 23 nominees down to these three finalists (in alphabetical order):

In the spirit of #GivingTuesday, here are 7 considerations for your charitable donations policy

Today is Giving Tuesday, a global day of charitable giving, which symbolically kicks off the season for those who choose to focus their holiday and year-end giving.

How does your company support employees’ charitable endeavors?

Timing is everything when defending a retaliation claim

Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on January 27, 2016.

Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on January 19, and was scheduled to return to work on January 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).

In Valle v. Frank Martz Coach Company (M.D. Pa. 11/16/17), the court denied the employer’s motion for summary judgment and held Valle’s FMLA retaliation claim for trial.

Today is your last day to vote in the preliminary round for the “Worst Employer of 2017”

Today is your last day to vote in the preliminary round for the “Worst Employer of 2017.”

Voting in the cut-down round has been robust, with nearly 600 votes cast to date.

That said, there have been three clear leaders since day one.

Yet, several others are within a few votes of squeaking into the finals.

So, what are you waiting for? If you haven’t voted, click here and vote.

Polls close at 11 pm, and will re-open next Wednesday for one final round of voting on the three (or more?) finalists.

Your employees are your brand ambassadors; train them accordingly

“Dad, can you take me to the craft store?”

My 6th grader has a diorama due the day after Thanksgiving break.

So, off Norah and I went to the craft store last night.

Employees that allegedly take an employer’s stuff without authorization don’t win discrimination cases, but might win defamation cases

Jason Shann worked as the Enterprise Desktop Management Team Leader in the IT department of Atlantic Health System. He also suffered from tinnitus, a crackling and buzzing noises in his left ear caused by an Eustachian tube dysfunction. His tinnitus would flare up unpredictably, and, as it worsened, it caused him to suffer anxiety and depression.

As a result, he applied for, and was granted, a 21-day FMLA leave, and intermittent leave thereafter upon his return to work. Despite the intermittent FMLA leave, his tinnitus continued to worsen. Ultimately, he decided to take short-term disability leave, which he intended to role into long-term disability and retirement. 

Prior to leaving Atlantic Health, the company discovered that he had “removed” a plethora of computer assets from his workplace. According to the police report, he took four laptops, one iPad, three hard drives, one portable DVD-R/RW and RAM Drive, one mouse, and an AC adapter for one of the laptops. The company also discovered that he had used unauthorized third-party software to overwrite more than 27,000 files on the one hard drive he left at his desk.

WIRTW #485 (the “what I’m listening to this week” edition)

A few weeks ago I listed my five favorite podcasts, and asked you for some suggestions to add to my listening queue.

Had I waited a month, Hostile Work Environment would have topped the list.

Each week, Marc and Dennis will bring true stories of wacky, grotesque, and just plain bizarre workplace happenings. And while we hope that you find these cases as interesting and amusing as we do — and laugh along with us in the telling — make no mistake, we’ll also be bringing analysis and legal discussion of those cases.

Two episodes in, they have not disappointed. You cannot go wrong discussing an employee’s fear of the mark of the beast, or a company that disciplines poor performers by spanking them with yard signs.

If you’re reading this, I know you’re an employment law and HR nerd (it’s okay to admit it; I came to grips with it a long time ago). Do yourself a favor a jump over to hwepodcast.com, or your podcast app of choice, and queue up the first two episodes. I guarantee that your daily commute will thank you for it.

Here’s what I read this week:

Work stress and the ADA

I’ve been thinking a lot lately about stress, and the anxiety it can, and often does, cause.

Stress induced anxiety can cripple someone. According to the Anxiety and Depressions Association of America:

• 72 percent of people who have daily stress and anxiety say it interferes with their lives at least moderately.
• 40 percent experience persistent stress or excessive anxiety in their daily lives.
• 30 percent with daily stress have taken prescription medication to manage stress, nervousness, emotional problems, or lack of sleep.
• 28 percent have had an anxiety or panic attack.

What happens, however, when the thing inducing the stress and anxiety is the workplace itself? What are an employer’s obligations under the ADA to accommodate this mental health disorder?

It’s amazing what one finds while packing

Yesterday afternoon, I received the following email from a co-worker:

To: Office All
Subject: Pardon the office all email 

I am sure you all have found interesting things that you had completely forgotten as you cleaned up your workspaces. I have no idea where I obtained this, but I hope you find it as funny as I did.

Announcing “The Employment Law Year in Review” Webinar

Do you enjoy webinars?

Do you have an affinity for six of the internet’s top labor and employment law and HR bloggers coming together to present said webinar?

Do you desire SHRM and HRCI credits?

Before you answer, what if told you all of the above is FREE.

Then what are you waiting for? Click here, now.

How do we start to STOP sexual harassment?

www.pinterest.com/pin/202802789447314070

Harvey Weinstein, Kevin Spacey, Louis CK, Mark Halperin, Bill O’Reilly, Roger Ailes … the list of men accused of sexual harassment and other sexual misconduct seems to know no end.

I very much hope that we have reached the beginning of a cultural watershed against sexual harassment in America. Which is undoubtedly a good thing, especially when you consider a recent Washington Post survey reporting that nearly one-third of women have received an unwanted sexual advance from a co-worker.

All of which begs the question … if sexual harassment is so prevalent in the American workplace, how do we start having a conversation about how to stop it?

WIRTW #484 (the “happy place” edition)

What’s your happy place?

Where do you take your mind when you’re just having a bad day, when you have to deal with that employee, when a client chews you out (I know, that never happens), or when you otherwise need a mental breather from the world and all of its evil and other craziness?

Mine is watching my kids play music.

9.8 million reasons to consider transferring a disabled employee to a vacant position

Photo by Taber Andrew Bain
Licensed via Creative Commons 

Earlier this month, American Airlines agreed to pay $9.8 million to settle a disability discrimination lawsuit brought by the EEOC.

The agency claimed that the employer’s return-to-work policy—which allegedly refused to consider transfers to open positions for disabled employees, but instead required the employees to apply for and compete for vacant position upon their return to work—violated the ADA.

What’s the worst employee exit you’ve ever seen?

There is a right way to quit a job, and a wrong way to quit a job.

Last week, a Twitter employee demonstrated the worst of the latter.

Some lessons from the employee fired for middle-fingering Trump’s motorcade

Have your heard about Juli Briskman, the biker that flipped the finger to Trump’s passing motorcade?

https://twitter.com/julibriskman

Parental status discrimination is NOT a thing. But should it be?

I received some great feedback on LinkedIn on last week’s post on New York’s new paid family leave law.

That law grants paid leave for the same general reasons one can take unpaid leave under the FMLA. What it does not do, though, is create a new protected class.

Indeed, discrimination based on one’s status as a parent is, in and of itself, NOT illegal.

WIRTW #483 (the “tardy” edition)

I HATE being late. It’s my number one pet peeve.

It drives my family completely nuts. If I’m even one minute late for anything, I am a mess. For that reason, we are usually five minutes early for everything (which is perfectly okay by me).

I view tardiness as an issue of respect. When you are late, it tells others that you view your time as more valuable than theirs. To me, lateness equal selfishness, and I have little tolerance for the selfish.

Is New York the beginning of the end for America’s poor family leave laws?

My two working-parent family

It is freakin’ hard to be a working parent in America. It is even more difficult when both mom and dad work.

It’s not just childcare, but also doctors’ appointments, kids’ sick days, summer vacations, winter and spring breaks, Labor Days, Memorial Days, and all the other “Days” (and don’t get me started on “teacher in-service days”).

Beginning January 1, 2018, New York is implementing the start of solution for any employees that work in that state.

VOTE for the ‘Worst Employer of 2017’ — polls are open

The day for which you’ve waited all year has finally arrived.

It’s your opportunity to help pick the Worst Employer of 2017.

Apple employee gaffe illustrates risk posed by YouTube videos in protection of trade secrets

An Apple employee lost his job this week after his daughter, Brooke Amelia Peterson, posted a YouTube video of her dad’s brand new, unreleased iPhone X.

ReCode has the details:

Peterson posted a five-minute video of a September day in Silicon Valley, which mostly included shopping for makeup and clothing. Harmless, and not unlike other YouTube videos posted by teenagers. 

But then, in the video, she visits her father on Apple’s campus in Cupertino for what seems like dinner. As they munch on pizzas in the company’s cafeteria, Peterson’s dad hands her his iPhone X to test. That’s when YouTube viewers got about 45 seconds of footage of Peterson scrolling through various screens on the new design and showing off its camera.

Ohio lawmakers consider safe harbor for cybersecurity compliance

If the Equifax data breach hasn’t scared your company into cybersecurity compliance, Ohio lawmakers are considering dangling you a compliance carrot.

Senate Bill 220 [pdf], introduced earlier this month, would provide business a cybersecurity ‘safe harbor’ in exchange for compliance with the NIST Cybersecurity Framework (or other similar standard).

WIRTW #482 (the “a bet is a bet” edition)

It’s been a couple of weeks since baseball’s evil empire, otherwise known as the New York Yankees, knocked my beloved Cleveland Indians out of the playoffs.

I can’t say the pain has gone away, but seeing the Astros as the American League’s representative in the World Series helps an ever-so-small small bit.

With no risk of Yankees winning it all this year, it’s time I paid off a little bet I made with Dan Schwartz over the outcome of the Division Series.

God, this hurts. But, a bet is a bet.

Here’s what I read this week.

When should HR call its lawyer?

Yesterday, I read When is an Employee Issue a Legal Issue (and When Is it HR)?, written by Dan Schwartz on his always excellent Connecticut Employment Law Blog. Dan posits that there are some instances when a business almost always should get legal involved with an employee issue, such as when it receives a “lawyer letter”, receives service of an agency charge or lawsuit, needs to conduct a privileged investigation, or confronts a complex or novel legal issue.

I’d like to address this same question from a more macro level.

Not all swearing at work is created equal

According to a recent survey, 57% of American employees admit to swearing at work. (To me, that seems low. Also, count me in the “yes” column.)

Where is the line between swearing as harmless workplace banter and swearing as harmful unlawful harassment?

Consider these two examples.

Bill O’Reilly claiming victim status is WHY we have a harassment problem

Over the weekend, the New York Times reported that Bill O’Reilly paid $32 million to settle a claim of sexual harassment brought against him by a former co-worker.

Yesterday, in an interview with the New York Times, O’Reilly let his accusers have it:

It’s horrible what I went through, horrible what my family went through. This is crap. It’s politically and financially motivated. We can prove it with shocking information. We have physical proof that this is bullshit.

The 23rd nominee for the “worst employer of 2017” is … the cake boss

As we wind down the year toward voting to name the first annual “Worst Employer of the Year,” I thought I had all bases covered. Then I read this story on Buzzfeed:

This Teen Says Her Chili’s Manager Sexually Harassed Her, And Her Coworkers Threw A Party To Shame Her

WIRTW #481 (the “proof of concept” edition)

When a commenter starts his thoughts with “Hey faggot,” you know you have one for the internet-troll hall of fame.

A couple of months ago I wrote a post entitled, When You Discover That You Employ a Nazi. This post generated the above-referenced comment on Workforce.com (which cross-posts my blog daily).

The rest of this winning comment?

Thank you, Mr. Bryson, for proving my point. Let me also suggest (if you can stomach it) that you check out his account on Disqus.com, which exposes his views on a range of topics, including LGBTQ people, the Jews, and school shootings as false flags. For the record, he is con, con, and WTF?!

Here’s what else I read this week:

When is a break not a break under the FLSA?

The FLSA draws a pretty clear line as to when breaks must be paid, and when they can be unpaid.

If a break 20 minutes or less in duration, it must be paid. Any longer, and an employer can make it an unpaid break.

What if, however, instead of providing employees paid breaks, an employer installs a system of flex time—the employer only pays employees for the time they are logged onto its system, which maximizes employees’ ability to take breaks from work at any time, for any reason, and for any duration.

Does this “flex time” system of unlimited unpaid breaks pass muster under the FLSA?

No, you do not need a workplace emoji policy

I read a blog yesterday that asked the following question? “Do you need a workplace emoji policy?”

They say yes, I say an unequivocal no.

Weinstein case highlights problem of “ostriching” harassment

It’s been a busy few days in employment-law land, with the Harvey Weinstein sexual harassment case dominating the headlines.

What have we learned?

• Weinstein is an (alleged) (do I really need to add this qualifier?) serial harasser, maybe one of the worst in history.
• His misconduct was the worst kept secret in Hollywood, with even Courtney Love discussing it all the way back in 2005.
• The Weinstein Company, and the members of its board of director, are in deep, deep trouble for ignoring Harvey’s (alleged) wandering eyes, hands, etc.

There is no *good* reason to be anti-LGBTQ rights

Last week I presented a webinar entitled, “The Top 10 Employee Handbook Mistakes.”

I discussed, among other policies, missing at-will disclaimers, salary discussion bans, failing to define the FMLA leave-year, inflexible leave of absence policies, and omitted or ineffective harassment policies.

I also discussed anti-discrimination policies that ignore LGBTQ employment rights.

During the LGBTQ section of the webinar, I provided the legal background on the issue (Title VII is silent, some states and municipalities have acted, and the EEOC and federal courts have stepped up to otherwise fill in Title VII’s gap).

I then issued this challenge to the attendees—

“Be on the right side of history.”

WIRTW #480 (the “another Fake ID” edition)

Indulge me, as this morning I once again take off my employment-law blogger hat, and replace it with my proud dad / music blogger hat.

Fake ID had quite the successful opening weekend of music. They started last Saturday night rocking The Pond Ice Rink’s annual clambake (encore included), and finished Sunday afternoon as the talk of the Hiram House Camp Pumpkin Festival.

It was an absolute joy to watch this band perform (and not just because one of them happens to be mine). These kids rock hard, work harder, and love what they are doing.

As one fan described his “favorite cover band in town” — “Book them now for your holiday party before they get their driver’s licenses!”


Follow these kids on YouTube for more videos from this past weekend, like them on Facebook for information on future gigs, and follow them on Instagram for more videos and other photos.

Here’s what I read this week.

Do you know what to do when an employee dies on the job?

It’s news an employer never wants to deliver.

“I’m sorry, but your spouse (or partner, child, or other family member) had an accident at work and unfortunately passed away.”

But it happens. In fact, according to OSHA it’s happened 357 times already this year.

Indeed, it happened just yesterday, at Cleveland State University. A piece of sheet metal fell and killed a construction worker.

Jemele Hill story underscores employees lack of understanding about personal social media and work

Social media has irreparably torn down the wall that has historically separated one’s work life from one’s personal life.

Earlier this week, ESPN personality Jemele Hill learned this lesson the hard way.

It’s coming from INSIDE THE HOUSE: 12 steps for your employees to become cyber-aware

Do you remember the movie When a Stranger Calls?

The movie opens with a babysitter receiving a telephone call from a man who asks, “Have you checked the children?” She dismisses the call as a practical joke, but as they continue, and become more frequent and threatening, she becomes frightened and calls the police. Ultimately, she receives a return call from the police, telling her that the calls are coming from inside the house.

(Cue ominous music)

October is National Cyber Security Awareness Month. And, according to one recent study, employee negligence or other error is the cause of 41 percent of all data breaches. Your data breaches are coming from inside your house. The question is what are you going to do about it.