'Twas the Employment Law Night before Christmas

'Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

Announcing THE WORST EMPLOYER OF 2018

The day has finally arrived. It’s time to announce the Worst Employer of 2018.

To remind you, we had four finalists in contention for this … (dis)honor:

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

 

The final vote wasn't close. The winner tallied an astounding 62% of all first place votes.

The Worst Employer of 2018 is…

CBS denies Les Moonves every penny of his claimed $120 million severance

Today is your last day to vote for the Worst Employer of 2018. The polls close at 11:00 pm tonight. I'll announce this year's big winner tomorrow.

Cast your vote here.

Before we crown this year's worst employer, I thought I'd mention an employer who did something right.

CBS.

Non-solicitation agreements are not a license to steal an employee's already existing customers

Hall v. Edgewood Partners Ins. Center (6th Cir. 12/14/18) [pdf] asks a question that we see arise often in litigation with former employees over restrictive covenants—can an employer limit an employee's access to customers, clients, or other contacts that the employee had prior to the employment.

Or, to put it another way, who owns an employee's pre-existing book of business, the employee or the employer?

WIRTW #535 (the “live from Cleveland” edition)

According to a recent survey, social media is the No. 1 challenge for small business owners. Allow me to offer a solution. 

Last month I had the pleasure of presenting, Think Before You Click! Managing Workplace Social Media. It's an hour-long run-through of myriad reputational and legal issues that employers face when the employees engage on social media.

(I wish YouTube picked a more flattering cover frame.)

Enjoy.


Here's what I read this week:

Why the Cleveland Clinic's $15 minimum wage matters to you

Earlier this week, the Cleveland Clinic committed, by January 2020, to raise the minimum wage for its employees to $15 an hour.

According to its CEO, Dr. Tom Mihaljevic, its all about making sure employees feel respected and valued … and attracting and retaining the best employees.

As the largest employer in Northeast Ohio and the second largest employer in the state of Ohio, Cleveland Clinic has a responsibility to lead the way and help shape the future of health care and the health care workforce.…

Every caregiver's role is important. Increasing our minimum wage demonstrates our commitment to our employees and their families, as well as the community and our patients. It is a reflection of who we want to be as an organization.…

Ultimately, we want to continue attracting the best and brightest caregivers in all roles. We want to remain an employer of choice and give back to the caregivers who do so much for the patients we serve at Cleveland Clinic. Our goal at Cleveland Clinic is to be the best place for health care and the best place to work in health care. To reach that goal, we will continue to align caregiver pay with other top employers in the markets where Cleveland Clinic operates.…

The Clinic joins other large employers—Amazon, Walmart, Target, Disney Parks, McDonald's—in adopting a $15 minimum wage.

Which is great for them and their employees, but why should this matter to you and your business?

Because by raising their minimum wage, you will have to do the same. Or you will if you want to attract and retain quality employees. These employers have moved the needle on the issue of the minimum wage. To compete in the job market against those offering a $15 minimum wage, other companies will have to match, or risk losing quality employees to higher paying employers. Thus, over time, the $15 minimum wage will organically spread.

This is not to say that this increased minimum wage is not without problems of its own. For example, if you raise your minimum wage to $15 an hour, what happens to all of those employees already earning $15 an hour? To the employee, hired 10 years ago at $8 an hour, who worked his butt off for the past decade, and, through a series of promotion and raises, earned his way up to $15 an hour? Will you provide a proportional raise to keep pace? And, if not, a $15 minimum wage will convert those millions of workers into minimum-wage employees. And, for better or for worse, there is a certain stigma with being classified as minimum wage—especially if you've worked hard for years not to be minimum wage.


These are not easy issues with easy solutions. However, the $15 minimum wage train has most definitely left the station, and there is no going back. The question is not if you will adopt it, but when, and how.

* Photo by Verne Ho on Unsplash

Alex, I'll take leave of absence policies for $5.25 million.

A: An employer must have one of these to avoid running afoul of discrimination laws when an employee is out on a medical leave of absence.

Q: What is an open-ended leave of absence policy?

Two employers recently learned this lesson the hard way, care of the Equal Employment Opportunity Commission.

The 1st nominee for the “worst employer of 2019” is … the philandering pharmacist

While I continue to tally votes to name the Worst Employer of 2018, I have an employer too awful not to kick off the nominees for 2019.

Meet Joyce Fogleman, the president, pharmacist, and sole owner of J&S Professional Pharmacy, who is, along with her pharmacy, the defendant in Blades v. J&S Professional Pharmacy.

With tongue planted firmly in cheek, Judge J. Philip Gilbert of The United States District Court for the Southern District of Illinois describes the employer as "your typical pharmacy."

A quick review on the rules for docking pay for exempt employees

"Can I dock part of an employee's paycheck?"

It's one of the questions I get most often from clients.

So, let's take a quick run through the rules of docking employee's pay for exempt employees.

WIRTW #534 (the “rock the vote” edition)

Have you cast your ballot for the Worst Employer of 2018? Time is ticking down for this year's final vote.

To remind you of the four truly awful employers vying for this year's honor, the finalists are:

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

Vote here.

Here's what I read this week:

Does Title VII protect an employee's self-help discovery?

Suppose one of your employees believes that she was discriminated against because of her protected class. She files a charge of discrimination with the EEOC, and, in support of the charge, provides the agency information from your confidential personnel files that she had copied. In response, you fire the employee for violating your confidentiality policy? She then files a new charge, alleging that her termination was in retaliation for her protected activity of gathering evidence in support of her discrimination claim.

Does her retaliation claim succeed?

Is your business rethinking its holiday party this year?

During the #MeToo portion yesterday's Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented, Robin Shea suggested that the #MeToo Movement has altered employers' holiday-party plans this year.

Indeed, according to the 2018 Holiday Party Survey (conducted by the appropriately named outplace firm of Challenger, Gray & Christmas), 35% of employers do not plan to throw a holiday party this year, the lowest number since 2009. Given the current strength of our economy, one would expect an opposite trend, suggesting that something else is causing this uptick in grinchy employers.

The likely culprit? #MeToo.

Forced hugs at work sound like a REALLY bad idea

Ray Kelvin, CEO of UK fashion retailer Ted Baker, is a hugger. According to an online petition seeking to end his practice, "he greets many people he meets with a hug, be it a shareholder, investor, supplier, partner, customer or colleague." And, it doesn't stop with hugs. He asks young female employees "to sit on his knee, cuddle him, or let him massage their ears." He strokes employees' ears. He takes off his shirt in the workplace and talks about his sex life. Even worse, when employees go to HR to complain, they are told, "That's just what Ray's like."

Well, they've had enough "of what Ray's like." More than 2,600 people, including over 300 current or former employees, have signed the online petition calling on Ted Baker to "scrap the forced 'hugs' and end harassment."

What can "Elf" teach us about the ADA?

Friday night, the Hyman clan carried out our annual holiday tradition of watching "Elf." Since much of the story took place in and around various workplaces, this year I decided to watch with an eye towards shareable employment law lessons.


Early in the story, Buddy learns the harsh reality that he is not actually an elf, but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations, and being transferred to Jack-in-the-Box testing (the job reserved for "special" elves).

Assuming that Buddy's height is a disability in the North Pole (and if the ADA protects dwarfs down south, it's safe to assume the North Pole's disability discrimination laws would similarly protect Buddy's heightened height up north), what ADA lessons does this parable teach us?

WIRTW #533 (the “Stella's” edition)

If you ever wanted to know how hard a group of pre-teens and teens can rock, you'll have your chance on December 21, when Fake ID invades Stella's Music Club. They play from 7:30 – 9:30, and word has it they are working up a few Christmas tunes for the season.

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Also, you still have time to register for The Best-Ever Year-End Employment Law Review That 5 Employment Law Bloggers Ever Presented—Tuesday, 12/4, from noon to 1 p.m. 

Join me, along with employment law bloggers extraordinaire Eric Meyer, Jeff Nowak, Dan Schwartz, Robin Shea, and our fearless (fearful?) moderator, Kate Bischoff.  

Register here

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Here's what I read this week.

I can name that lawsuit in one note

Demetria Kalodimos, age 58, worked as an anchor for Nashville's WSMV for 33 years. After the station failed to renew her contract, she sued for age and gender discrimination.

The Worst Employer of 2018: The Finalists

The votes have been cast, and counted. And we have four awful employers that have qualified for the finals of the Worst Employer of 2018.

I started this journey all the way back on January 2, 2018, in a post discussing a company president who tried to solicit sex from his employee by telling her God wanted her to be his sexual plaything.

And he didn't even come close to qualifying for the finals!

After nearly 600 votes, you've cut the 15 nominees down to these 4 finalists (in alphabetical order):

• The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him.

• The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field with a rope around his neck.

• The Supervisor Supremacist — supervisor begins morning staff meetings by saying "White Power" and giving the Nazi salute; when African-American employee complains, he finds himself hanged in effigy.

• The Tasering Torturer — company owner disciplines employee by threatening to kill him, lighting fires near him, and repeatedly shocking him with a taser.

Now for the fun part. Instead of asking that you pick just one of these gems, I'm asking you to rank them, from 1 (the worst employer) to 4 (the least worse employer). This will then give me a weighted score to name, finally, the WORST EMPLOYER OF 2018.

The polls will remain open until Tuesday, December 18, at 11 pm.

You can vote below, or at https://www.surveymonkey.com/r/SG9Z8CX.

UPDATE: Does an employer have a duty to protect the personal information of its employees?

In July, I asked whether an employer owes its employees a legal duty to protect their personal information. I discussed cases that answered that question in both the affirmative and the negative. I also suggested that regardless of whether employers have a legal duty to protect the personal information and data of your employees, they still have a significant financial and reputational incentive to take reasonable steps to maintain the privacy and security of all of their information.

The dominoes, however, are starting to fall on the existence of a legal duty.

On the 12th day of Christmas, my employer gave to me … a handgun?

'Tis the season for giving. What's the oddest holiday gift an employer has ever given you? For the employees of one Wisconsin company, the answer might just be a handgun.

WIRTW #532 (the “❤️ the holidays” edition)

On December 25, I will turn 18 in Christmas years. My wife and I starting dating in October 2001, and we celebrated our first Christmas together two months later. I LOVE Christmas. I joke with my wife that I married her for Christmas. I love the lights, the tree, the family togetherness, the snow, and the overall peaceful spirit of the holiday.

And the music. I love Christmas music. Which is why this year, I'm thrilled that I get to combine my favorite holiday with my favorite band.

Today, Old 97's released "Love the Holidays," a collection of twangy Christmas tunes to fill your ears and your soul with yuletide joy.

Take a listen to the exquisitely beautiful "Snow Angels," a song that seeks togetherness in these troubled times, and calls for us to find that which binds us instead of that which us divides us.

Look to your left, look to your right
Everyone of us is a beam of light.
Together, we’re strong. There’s no need to fight.
Everyone of us is a beam of light.

I also dare you not to imagine snow falling outside you window as you listen to the imagery this tune invokes.




The blog is off next week, as I'll be home getting ready for, and then celebrating, my other favorite holiday, Thanksgiving. But, come back the week after when I'll announce the finalists for the Worst Employer of 2018 (have you voted yet?), and take us through the year's home stretch.

Here's what I read this week:

Do you know? Pre-employment medical examinations

A local mayor has gotten himself in some hot water for his selective use of pre-employment medical examinations for hirees. How selective? According to WKYC, one woman claims that the mayor required her and other women, but not men, to be examined by his personal doctor. For his part, the mayor denies the allegations as an act of a "fertile imagination," and claims that he sends all city workers, male and female, to the same doctor for pre-employment exams.

Why would her allegations rise to the level of unlawful activity?

What can you learn from the law firm partner suspended for watching porn at work?

According to The American Lawyer (sub. req.), Hogan Lovells has suspended one of its partners in its London office for watching porn at work. How did it catch the offense?

In IT employee read his internet logs? No.

He forgot to close his browser when he went to the loo and his assistant walked into his office? No.

He visited an unsafe site that spammed his entire office with malware? No.

Do you know? English-only workplace policies

White Americans, what?
Nothing better to do?
Why don't you kick yourself out?
You're an immigrant too!

– White Stripes, Icky Thump (2007).

Estefany Martinez-Gonzalez and Imelda Lucio Lopez, both crew members at a McDonald's restaurant, and both Hispanic, claimed that their employer discriminated against them by requiring them to speak English at work (as opposed to their native Spanish).

Register now for "The Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented"

What could you buy for $25?

• Goosh Pants
• A yodeling pickle + Dancing with Cats 
• Gummi Bear Anatomy Model Kit 
• 100 Misprint Ink Pens Ball Point Plastic Retractable Pens + 2 Nicolas Cage pillowcases

What should you buy for $25?

 

One registration to The Best-Ever Year-End Employment Law Review that 

Five Employment Law Bloggers Have Ever Presented

WIRTW #531 (the “Mexico” edition)

Last night, I got to watch my daughter hit a home run, on stage at The Beachland Tavern, singing "Mexico" with decker. (You can read the backstory of how this all came together here.)


Huge thanks to Brandon Decker, for reaching out and offering to share his stage with Norah.

Here's what I read this week:

A resignation in lieu of termination is (more or less) still a termination

"At your request, I am submitting my resignation."

So wrote now-former Attorney General Jeff Sessions in his resignation letter to President Trump.

Yet, no one reasonably believes that Sessions resigned. "At your request, I am submitting my resignation" is a termination, period.

Clients ask me all the time, about an at-risk termination. "Jon, what if we just have him resign? He can't sue us for discrimination, then, right?"

Job applicant told, "Your sexuality may be an issue with the atmosphere of the office environment."

I found the following story posted to the legaladvice subreddit. It's titled, "Turned down for a job, asked what the issues were. Told 'your sexuality may be an issue with the atmosphere of the office environment'."

Sexual harassment prevention 101: NO STRIP CLUBS

Last month, the EEOC held a public meeting on preventing workplace harassment. Entitled, Revamping Workplace Culture to Prevent Harassment, it's the agency's second meeting since forming its Select Task Force on the Study of Harassment in the Workplace, and its first in the #MeToo era.

The EEOC discussed the need for employers to take a holistic approach to change workplace culture to prevent harassment.

Somehow, the EEOC missed "No strip clubs for employees" as one of its anti-harassment talking points.

Managing Election Day at work

As tomorrow is Election Day, I thought I'd share a few tips for employers to keep in mind.

When salary is a proxy for age discrimination

Jim Boylan, recently fired as an assistant coach with the Cleveland Cavaliers, has filed an age discrimination lawsuit against his former employer. According his lawsuit [pdf], then-head coach Ty Lue told him that team owner Dan Gilbert "wants to go younger" in his position and "find somebody who's a grinder and younger."

On its face, those statements certainly seem like direct evidence of age discrimination.

But are they?

WIRTW #530 (the “trick-or-treat” edition)

Imitation is the sincerest form of flattery, correct?

View this post on Instagram

It’s so embarrassing when someone shows up wearing the exact same costume. #sorcle #twinning

A post shared by Jon Hyman (@jonhyman) on Oct 28, 2018 at 2:27pm PDT

Here's what I read this week:

VOTE for the ‘Worst Employer of 2018’ — polls are open

All year long, I've been sharing examples of the worst employers in America. My goal? Compile them at the end of the year and then turn it over to you, my readers, to pick the worst of the worst.

Today is your opportunity to help pick the Worst Employer of 2018.

I've narrowed my list down to my choice for the top 15 naughty employers.

Voting will take place over two rounds, a preliminary round and a final round.

In the preliminary round — which runs from today until Nov. 21 at 11 pm — you will be able to vote for up to 4 choices. (For ease of reference, I've summarized each nominee, as well has hyperlinked back to the original nominating post.)

I will then tally the votes, and, in early December, I'll be back with the finalists, to offer everyone the chance to vote one last time to name The Worst Employer of 2018.

Vote, share this post with your friends, colleagues, and social networks, and, most importantly, learn something from the mistakes of these 15 very worthy nominees.


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When you employ a Satanist #HappyHalloween

Rosemary's Baby, the classic 1968 horror film, tells the story of a pregnant woman who (spoiler alert: correctly) assumes that a satanic cult wants her baby. What does Rosemary's Baby have to do with employment law?

In honor of Halloween, I bring you the story of Irving Cortez-Hernandez, a "Catholic-Satanist" who prayed to the Devil for his pregnant co-worker to miscarry, and as a result lost both his job and his religious discrimination lawsuit.

Abortion discrimination = pregnancy discrimination

Is there a more controversial topic than abortion? As controversial and divisive as it might be, the law is pretty clear that an employer cannot fire an employee for having one.

Anti-Semitism at work

The devastating events of this past weekend served as a sobering reminder that anti-Semitism not only still exists, but it's thriving.

The reality is that anti-Semitism never went away. It has always been there, bubbling under the surface. The current climate in our country, however, has given it permission to boil over.

WIRTW #529 (the “new music Friday” edition)

From time-to-time I like to use this Friday real estate to share new music I'm listening to. Today's  new music also has a pretty cool origin story.

My wife and I vacationed in Sedona, Arizona, in July. And, as most Sedona tourists do, we took a jeep tour through the red rocks. Our tour guide was Brandon Decker. Over the course of our two hour tour we chatted, not just about Sedona, its history, and its mysticism, but also about our families, jobs, and lives outside of the jeep. 

We learned that when he's not driving tour jeeps, Brandon Decker is a professional musician. And not only a professional musician, but a professional musician with a new album about to drop and a national tour about to begin. We did some digging of our own afterwards. He's very accomplished in the Southwest, with seven albums and the title of 2011's Arizona Songwriter of the Year.

We told him about the musician in our family, too. Which led to an invitation for Norah to join him on stage when he stops in Cleveland on November 8.

So check out decker., and his unique brand of psychedelic Americana. I think you'll enjoy it.

Here's what I read this week:

From the archives: The Employer Bill of Rights

I recently came across an interesting blog, entitled, 10 Workplace Rights You Think You Have — But Still Don't. Written by plaintiff-side employment lawyer Donna Ballman, it suggests that employees have far fewer workplace protections than they might think, and rights like wrongful termination, free speech, and workplace privacy simply do not exist.

That post got me thinking about a post I wrote 7 years ago — The Employer Bill of Rights.

How many n-bombs does it take to create a hostile work environment?

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, "How many n-bombs does it take to create an unlawful hostile work environment?"

So as not to bury the lede, the answer is one.

Why the federal government's culture war against LGBTQ rights might not matter

You would do well to remember just how fluid is gender

"Second Wave Goodbye," War on Women

According to the New York Times, the Trump administration is poised to wage war on transgender rights.

The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth….

What you need to know about your office lottery pool

Late Friday afternoon (when the Mega Millions was only a mere billion dollars), I received a phone call from Brian Duffy, a reporter from our local CBS affiliate. "We are doing a story on office lottery pools. Are you the right person for me to interview about some of the legal risks?"

Two hours later, he was sitting in my living room with a cameraperson, interviewing me.

WIRTW #528 (the “paranoid” edition)

It's been a few months, but Fake ID was finally back on stage last weekend.


There's not much in life that makes me happier than seeing Norah perform.

Here's what I read this week:

Essential functions are judged by operational realities, not job descriptions

Tony Gunter worked as a press operator for Bemis, Inc., printing graphics for the outside of Huggies diapers. In January 2013, he injured his right shoulder on the job, continued to work for the next seven months, and ultimately opted for surgery when his ongoing physical therapy did not cure the injury.

He returned to his press operator job in December 2013 with temporary restrictions: no reaching with his right arm and no performing overhead work.

Timing of retaliation is key factor in reinstatement of employee's lawsuit

"See something, say something" is one of the most important elements of any workplace intent on stopping harassment. Employers are supposed to empower employees to report any harassment they witness, whether or not they are the target. Key to this idea is ensuring that employees who report harassment do not suffer retaliation as result. Retaliation of any kind will chill efforts of employees to say what they see.

With this background in mind, consider Donley v. Stryker Sales Corp. (7th Cir. 10/15/18) [pdf].

OSHA softens its hard line against workplace safety incentive programs and post-incident drug testing

It's been two years since OSHA announced its hard-line interpretation of its then newly announced anti-retaliation rules—that using incentive programs to penalize workers for reporting work-related injuries or illnesses, and that conducting post-incident drug testing without a reasonable possibility that employee drug use could have contributed to the reported injury or illness, constitutes unlawful retaliation under OSHA.

Last week, OSHA published a memo, which specifically clarifies that it "does not prohibit workplace safety incentive programs or post-incident drug testing." [emphasis in original]

What does this mean?

The 17th nominee for the “worst employer of 2018” is … the hedonistic harasser

Some call it horseplay. I call it sexual assault. And the 17th nominee for the Worst Employer of 2018.

Robert Smith worked behind the meat counter at Rosebud Farm, a small Chicago grocery store. It only took a few weeks after he started work for his male coworkers (including his direct supervisor) to start harassing him. They groped and grabbed his genital and buttocks. They reached down his pants. They repeatedly mimed oral and anal sex on him. And they did this for four years.

WIRTW #527 (the “Yeezy” edition)

There's a lot to say about Kanye's bizarre Oval Office meeting with President Trump.

But the most shocking? His iPhone password is "000000."

lmao Kanye's iPhone password is 000000 pic.twitter.com/mEM5Tjq0po

— Del Slappo (@misterjamo) October 11, 2018

Please, please, please, DO NOT DO WHAT KANYE DOES.

According to howsecureismypassword.net, Kanye's password can be cracked instantly. In other words, it's not a password at all.

You can read more about the importance of password security for you and your employees here.

Here's what else I read this week:

Make your business cyber-aware for National Cybersecurity Awareness Month

October is National Cybersecurity Awareness Month.

Let's see how good your cyber-awareness is.

Do you know the top method of cyber-attack?

#HimToo is a BAD bandwagon on which to jump in your workplace

since she deleted it here’s a screenshot. one of the greatest posts of all time pic.twitter.com/Z6TUKOjH9T

— KT NELSON (@KrangTNelson) October 8, 2018

#HimToo

A hashtag started as a reaction to #MeToo, put forth by those who believe that false accusations of rape and sexual assault against men are common and happen way too often.

Employers, #HimToo is dangerous to your workplace.

How does one measure the impact of #MeToo at its first anniversary?

It's been one year since the the New York Times reported allegations of sexual misconduct against Harvey Weinstein that started the #MeToo movement. Since, at least 425 prominent people across industries have been publicly accused of sexual misconduct.

The story, however, goes beyond the rich, and the famous, and the powerful. #MeToo has permeated every corner of our culture.

The EEOC just released its preliminary data on its handling of sexual harassment charges for its 2018 fiscal year—October 1, 2017, through September 30, 2018—a year that syncs almost too perfectly with the first year of #MeToo.

Court reminds that economic realities, not corporate formalities, govern independent contractor status

The distinction between independent contractors and employees continues to confound employers.

At issue in Acosta v. Jani-King of Oklahoma (10th Cir. 10/3/18) [pdf] is whether the Department of Labor could continue its FLSA claims on behalf of individuals who provide cleaning services as franchisees of a janitorial company. If the franchisees are independent contractors, then the FLSA does not coverthem. If, however, the company misclassified them as independent contractors, then the DOL has something to litigate.

WIRTW #526 (the “pumpkin” edition)

Pumpkin pie. Pumpkin spice. Pumpkin carving. Pumpkin festivals. Fall is officially the season of the pumpkin.

What are you doing Sunday, October 14? I'll be enjoying the return of Fake ID, as Norah and her bandmates take the stage from 11 – 1 at the Hiram House Camp Pumpkin Festival. They won't be hard to find on the property; just follow the music. Tickets are only $5 and are available here (kids under 12 are free).

Here's what I read this week:

Are you planning to take advantage of the IRS's employer tax credit for paid family and medical leave?

When Congress reformed the tax law earlier this year, one key change that might have flown under your radar is an employer tax credit for paid family and medical leave.

The IRS has a helpful Q&A available here.

EEOC sues Walmart for not hiring a congential amputee

The EEOC has sued Walmart on behalf of a woman who claims the retailer failed to hire her for a stocker job after it learned that she born without a right hand.

The Houston Chronicle has the details:

"I'm going to need every Saturday off; is that gonna be a problem?"

Darrell Patterson had worked in Walgreens' 24/7 call center for six years without incident. He claims Walgreens fired him for skipping an emergency training session held on a Saturday. He's a Seventh-day Adventist, and it's against his religion to work on the Sabbath (from sundown Friday through downs Saturday). Until his firing, they had worked cooperatively to schedule around this religious prohibitions, without incident.

Patterson's religion and Walgreens' scheduling came to a head in 2011, however, when Walgreens asked Patterson to cover an emergency Saturday training session. When he missed the training class, Walgreens fired him.

5 steps to take when an employee sues your company

I've written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company's HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It's the simple the cost of doing business.

WIRTW #525 (the “pogo” edition)

I have no idea if he managed to hit the right keys, but he's sure mastered the entertainment part of this rock 'n' roll thing.

View this post on Instagram

Donovan mastering the art of pogo keyboarding #sorcle

A post shared by Jon Hyman (@jonhyman) on Sep 23, 2018 at 4:47pm PDT

Here's what I read this week:

Don't Lindsey Graham your company's harassment investigations

What am I supposed to do, go ahead and ruin this guy's life based on an accusation? I'm just being honest. Unless there's something more, no, I'm not going to ruin Judge Kavanaugh's life over this. But she should come forward. She should have her say. She will be respectfully treated.

 – Senator Lindsey Graham

He-said/she-said cases of sexual harassment are difficult. You are making a decision that will impact the lives of two (or more) people often based solely on your evaluation of the credibility of the complaining employee, the accused, and witnesses (if any).

Cuyahoga County bans LGBTQ discrimination

Cuyahoga County, Ohio, my home county, has lately been on the receiving end of some bad press. Season 3 of Serial just landed on your podcast app of choice, and it does not portray my county's criminal justice system in the most positive of lights.

So, today, I thought I'd share something positive from Cuyahoga County.

Yesterday, the County Council passed legislation prohibiting LGBTQ discrimination in employment, as well as housing and public accommodations.

Don't ignore state law when considering wage-and-hour issues

In Integrity Staffing Solutions v. Busk, the U.S. Supreme Court held the employees of an Amazon fulfillment center were not entitled to be paid under the FLSA for time spent waiting in line for a post-shift security screening.

And yet, last week, in parallel litigation under Nevada state law, the 6th Circuit Court of Appeals just held that time spent undergoing mandatory security checks is compensable under Nevada law,  reversing a contrary lower court ruling.

The 16th nominee for the “worst employer of 2018” is … the sexist, racist, xenophobic, oh my!

"Jon, your first 15 nominees this year were so awful. How are we supposed to decide which is the worst, and please stop adding nominees. You're only making our job harder."

Well, dear readers, sorry. Sometimes, I pick the nominees, and sometimes they leap off the screen begging to be nominated.

WIRTW #524 (the “total disaster” edition)

Any week Rhett Miller releases new music into the world is a week worth celebrating. Earlier this week Rhett released "Total Disaster," the first song of his upcoming album, The Messenger, due out November 9.


It's a brilliantly sad song about the mess one can make of one's life and how it impacts those around you. In fact, the entire album promises to be a bit on the darker side. A few months ago, on Chris Shiflett's "Walking the Floor" podcast, Rhett talked about some of the album's themes:

[The album's title] comes from a bridge in a song called "Human Condition." There were some of these songs where I kind of went back to my 14-year-old self. When I was 14, I had a real serous suicide attempt, and that's when I started addressing my issues of depression and mental health. It's not something I've talked about until recently, but now that I've got kids around that age, I was like, "Oh shit, I've gotta talk about this, because it's become over-stigmatized." I started thinking abut the 14 year-old that was in that space, and I started thinking, "If I was to go back and write a letter to myself…" I wish I could go back to my 14-year-old self and be like, "Dude, chill out. It’s going to be ok."

As if this isn't news enough, one week later, on November 16, Old 97's will release their very first Christmas album, Love the Holidays—nine original holiday tunes plus a cover of "Auld Lang Syne."


You can read all about these projects at Old97s.com, and both albums are available for pre-order from ATO Records. 

Here's what I else I read this week: