This disability discrimination lawsuit was no party

Party City has agreed with the EEOC to pay $155,000 to settle an ADA lawsuit the agency filed on behalf of a rejected job applicant on the autism spectrum and suffering from severe anxiety.

According to the lawsuit, the individual had been receiving services from Easter Seals of New Hampshire to build up her self-confidence, including working and applying for a job. These services included a job coach.

Supreme Court grants review in three cases to decide, once and for all, whether Title VII protects LGBTQ employees from discrimination

Yesterday, the Supreme Court agreed to hear appeals in three cases, to decide whether Title VII's prohibition against "sex discrimination" expressly includes prohibitions against LGBTQ discrimination.

Does Title VII protect heterosexuals from discrimination?

So meet, ROBERTa! Shopping in the women’s department for a swimsuit at the BR Target. For all of you people that say you don’t care what bathroom it’s using, you’re full of shit!! Let this try to walk in the women’s bathroom while my daughters are in there!! #hellwillfreezeoverfirst

Suppose you own a company, and one of your employees posts this rant on her personal Facebook page. Further suppose that in addition to owning the company, you are also a lesbian, and take offense to the employee's views. If you discipline the employee for her Facebook post, and later fire the employee after she complains about the discipline, can the employee sue for retaliation under Title VII? In other words, does Title VII protect heterosexuals from discrimination in reaction to anti-LGBTQ speech?

In O'Daniel v. Industrial Service Solutions, the 5th Circuit said no.

The case put the plaintiff, unabashedly and vocally anti-LGBTQ (as expressed in the at-issue Facebook post), in the position of arguing that Title VII protects against discrimination on the basis of sexual orientation.

The Court held that under its own precedent, O'Daniel could not move forward on her claim.

O'Daniel claims in essence that she was retaliated against because she "opposed" discrimination perpetrated against her on the basis of her heterosexual orientation.… Title VII in plain terms does not cover "sexual orientation." … Because the law in this circuit is clear, we cannot accept O'Daniel’s … suggestions that this panel either overrule the precedents or assume arguendo that the "trend" has upended them.

Thus, because the 5th Circuit does not recognize sexual orientation as class Title VII protects, and employee's complaints about her employer discriminating against her because she is heterosexual could not support a retaliation claim: "Title VII protects an employee only from retaliation for complaining about the types of discrimination it prohibits."

Two points to make about this opinion.

First, if Title VII equates LGBTQ discrimination to "sex" discrimination (as I, like many other courts and the EEOC, believe it does), then logic says that it must also protect heterosexuals from discrimination at the hands of the LGBTQ community because of their sexual orientation. Any other result is logically inconsistent.

Secondly, this employee was not fired because she complained about discrimination. She was fired because she exhibited extremely poor judgment through her Facebook rant. As the concurring opinion succinctly and correctly states: "Simply put, Title VII does not grant employees the right to make online rants about gender identity with impunity." If the employee ranted against interracial marriage, and the company's African-American owner fired her, would anyone think she has a valid claim? This case is no different. The law protects the employee from discrimination and retaliation, but it does not protect the employee's right to express bigoted views, on her personal Facebook page or otherwise.

* Photo by Jim Wilson on Unsplash

WIRTW #549 (the #RespectIsComing edition)

You might have heard that a little show called Game of Thrones premiered it's final season last Sunday. In its honor, Sesame Street prepared a wonderful parody in which Elmo tries to mend bridges between Tyrion and Cersei by teaching them the importance of respect.

A lesson we should all to take to heart, especially at work.


Here's what I read this week:

How to fire an employee

The Wall Street Journal recently asked this simple question:

What's the Best Way to Fire Someone?

I have some thoughts.

Bathroom conversations aren't private conversations

Michael Woods, a mortgage banker at Quicken Loans, was having a bad day at work. A customer Woods had helped four years ago had been trying to get in touch with a Client Specialist; the company routed the call to Woods because of their prior relationship. He aired his grievance to a co-worker, Austin Laff, while they were in the bathroom together. "The client should get in touch with a fucking Client Care Specialist and quit wasting my fucking time."

Jorge Mendez, a supervisor, overheard this conversation from a stall. He responded with an all-employee email reminding everyone of proper conduct in public areas. "Never, EVER, should we be swearing in the bathroom especially about clients."

That's how the ball bounces: 6th Circuit says that the ADA does not require a new supervisor as a reasonable accommodation

Cindy Tinsley was so stressed.

How stressed was she?

She was so stressed that even something as simple as her co-workers at Caterpillar Financial Services bouncing stress balls off the ground would trigger her post-traumatic stress disorder.

Maybe you should rethink telling your employee you're firing him becaus of his heart problems

Jonathan Baum worked as a scheduler for Metro Restoration Services. In late 2014, he began have cardiac problems. Over the course of the next several months, he went to the ER fearing a heart attack, had a heart catheter implanted, had an echocardiogram, and wore a heart monitor. He occasionally also missed work for medical tests and treatments, and sometimes worked remotely. His boss, and the owner of Metro, Patrick Cahill, was aware of all of Baum's medical issues.

Following a work day on which Baum had worked remotely from his home. Cahill fired him. The expressly stated reason: "health issues and doctors' appointments."

Oops.

WIRTW #548 (the “working for the weekend” edition)

I thought I'd update everyone on the summer goings-on of Northeast Ohio's favorite age-15-and-under cover band, Fake ID.

They have a busy summer. They will kick it off with a return engagement at Ohio Bike Week. After stealing the festival last year (really, go to the Ohio Bike Week Facebook page and read the reviews), they've been invited back to tear it up again.

Loverboy … and Fake ID. My 10-year-old self watching MTV in my grandparents' basement is totally freaking out.

Then, the band has a residency booked at Westlake's Crocker Park. They'll be playing on June 15, July 6, August 9, and August 20 (all from 5:30 – 7, on the square in front of the movie theater).

Pretty cool stuff for my 12-year-old daughter.

Here's what I read this week:

The three things you need to know from the EEOC's 2018 charge data

Yesterday, the EEOC released its charge statistics for 2018. There are three big things you need to know.

When workplace training goes very, very wrong

A few months ago I participated in active-shooter training. I presented harassment training for a local manufacturer, and, at its conclusion, the company played a 10-minute video explaining to its employees what to do in an active-shooter situation. Generally I'm not a fan of training videos. They tend to be boring, poorly acted, and ineffective. This one, however, was quite effective. It was not only chilling to watch, but, a few months out, I still recall the ABCs of what to do during an active shooter (Avoid, Barricade, Confront).

An Indiana school district, however, had a different idea of how to train its employees to prepare for an active shooter.

This employer had its employees shot in the back, execution style, with plastic pellets.

To help end sexual harassment, men MUST be better in reporting it when they witness it

"Dad, something bad happened at recess today!"

It's a refrain I sometimes hear at the dinner table.

"Donovan, what happened?"

"Joe pushed Billy off the swing, and Billy cut his knee when he fell."

"Did anyone let a teacher know what happened?"

"No."

"Why not?"

"I didn't because I didn't want to be a tattletale."

I've had this conversation with both of my kids — the difference between being a tattletale and reporting an unsafe situation.

The 10th nominee for the “worst employer of 2019” is … the exorcising employer

Is it too early to declare a winner for 2019's contest?

According to the complaint Jason Fields fired against the Hampton Inn at which he worked, and its manager, Sharon Lindon, he had to endure some pretty odd stuff during his employment.

As he tells his story, Lindon decided to help Field's after she learned of his impending divorce. How? By offering to exorcise him.

WIRTW #547 (the “new music Friday” edition)

Jenny Lewis just released the first great album of 2019.  

On The Line has witty and funny, yet touching and sad, lyrics, and beautiful melodies that will stick in your head. It's an album that commands your attention. I'll be shocked if it's not at the top of the "Best Of" lists at year's end. You should listen, now and often.

I fart in your general direction: flatulence as harassment?

An Australian court has rejected an employee's claim that his supervisor unlawfully harassed him by farting on him.

David Hingst sought 1.8 million Australian dollars ($1.3 million) in damages based on a claim his supervisor would enter his small, windowless office several times a day and "break wind on him or at him … thinking this to be funny."

The 9th nominee for the “worst employer of 2019” is … the fertile firing

MoMA PS1, a Queens, New York, art museum, has agreed to settle a pregnancy discrimination claim brought by Nikki Columbus, hired by the museum to direct its performance program. She alleged that the museum rescinded her job offer after it learned she had recently given birth.

Happy New Regulation Tuesday! DOL proposes updates to the definitions of "regular rate" and "joint employer".

Over the past week, the Department of Labor's announced proposals for significant (and much needed) regulatory updates to the definitions of "regular rate" and "joint employer".

What I learned on my Spring Break

I just returned from eight days in Italy. It was a whirlwind Spring Break tour of Rome and Florence. We covered a lot of ground — per my Apple Watch, 63 miles and 140,000 steps, to be precise. And we saw a lot of stuff — the Vatican, the Colosseum, lots of beautiful churches, lots of ancient sites and ruins, and (almost) too much pizza, pasta, and gelato (but never too much wine).

WIRTW #546 (the “Arrivederci” edition)

Today is good bye … but only for two weeks. My kids' school gives them that much time off for Spring Break each year. So we are headed to Italy. Rome and Florence to be precise.

I'll be back on April 1 (no foolin') with some thoughts about what I learned on my Spring Break.

In the meantime, if you have any last minute tips on what to do, see, or eat in either of these cities, drop a note in the comments below.

Here's what I read this week:

Share or Retweet if you care about paid parental leave

Earlier this week, Republican Senators Joni Ernst and Mike Lee introduced the Child Rearing and Development Leave Empowerment Act (the CRADLE Act). It is a first step towards providing some measure of paid parental leave to American workers. Yet, it has some serious flaws.

The 8th nominee for the “worst employer of 2019” is … the lascivious leader

I can't do any better of job than the EEOC did in describing the parade of horribles the one supervisor wrought at Sys-Con, a Montgomery, Alabama, general contractor:

According to the EEOC's lawsuit, from December 2015 to May 2017, a supervisor at Sys-Con's worksite at the Hyundai manufacturing plant in Montgomery, demanded sexual favors from two non-English speaking Hispanic female employees and watched pornographic videos in front of them. The EEOC further charged that the supervisor sexually assaulted one of the employees and sub­sequently taunted her, asking whether she "liked it."

The FLSA's salary test just doesn't matter

By now you've likely heard that the Department of Labor announced its intent to increase the qualifying salary threshold for its white collar exemptions from $455 per week ($23,660 annually) to $679 per week ($35,308 annually).

I'm here to tell you that this increase just doesn't matter.

What a lawful "civility" policy looks like under the NLRB's Boeing test

Consider and compare the following workplace civility policies:

Commitment to My Co-Workers

• I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team.
• I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately.
• I will not complain about another team member and ask you not to as well. If I hear you doing so, I will ask you to talk to that person.
• I will be committed to finding solutions to problems rather than complaining about them or blaming someone for them, and ask you to do the same. 

-vs-

Blogging 

Blogging outside of the hospital must not include … disparaging comments about the hospital.

WIRTW #545 (the “International Women's Day” edition) #IWD2019

Happy International Women's Day!

I didn't always consider myself a feminist. But I'm proud to call myself one ever since May 27, 2006—the day my daughter was born.

It wasn't that I was hostile to the issue; I just never engaged in any active thought about it. Now that I have a female life for which I am responsible, I fully embrace the term.

As seen on Reddit: Salary discussion bans are a BIG legal no-no

AriesAviator posted the following question in the LegalAdvice subreddit:

Boss just threatened to fire me and another co-worker because we were discussing a raise we both got- what should I do?

We both got pulled into a group chat over the app our work uses, and the first message reads as follows;

Hey I don't want to here about your raises with the other crew members we talked about this before, other places have strict rules either termination or reversal of the raise this is not okay, Don't turn something we tried to do nice for you too into a pain for us.

Which, uh, what the fuck?

I'm pretty fucking sure everything in there is MASSIVELY illegal.

Emotional outbursts as ADA-protected disabilities

The term hysteria comes from the Greek word hysterika, meaning Uterus. In ancient Greece it was believed that a wandering and discontented Uterus was blamed for that dreaded female ailment of excessive emotion, hysteria. The disease's symptoms were believed to be dictated by where in the body the offending organ roamed. It was not religious belief but a social belief.

Hysteria
https://academic.mu.edu/meissnerd/hysteria.html

Less than two months after Jessica Mullen's hysterectomy, she applied for a position as a stitcher with athletic footwear manufacturer New Balance. Within the first few weeks of her employment, her was having difficulty mastering one of the stitching machines, which led to an abrupt and (maybe) heated exchange with her trainer, Julie Prentiss. During that exchange, Mullen became upset and began to cry. Prentiss placed Mullen in a time-out in the break room, and contacted two human resources managers, Frances Fisher and Rachel Merry.

The 7th nominee for the “worst employer of 2019” is … the disability debaser

The 7th nominee for the Worst Employer of 2019 is an employer that (allegedly) permitted a nearly year-long campaign to malign and harass an employee living with ADHD and Tourette's syndrome.

Harassment need not be "hellish" to be actionable

Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19) asks a question that we see time and again in harassment cases—how bad does does the conduct have to be to support a harassment claim. The answer is bad enough, but not so bad so as to be classified as "hellish."

WIRTW #544 (the “it's a shame” edition)

I love how my kid's school embraces their individuality and creativity. Back in the fall, my wife and I had a quick conversation with one of Norah's teachers about her music, which led to him suggesting that she bring her guitar to school to share a song at one of their Wednesday morning all-division meetings. After a few weather related false starts, Norah finally had her chance this week. She chose to play It's a Shame, by First Aid Kit.

I fully understand that I am a biased dad. But, I also think that my 12-year-old's cover of the song (recorded by one of her friends) was a home run. Here's the link if you want to listen.

Here's what I read this week:

The legalities of employee mass walkouts vs. the practicalities of avoiding them in the first place

Three central Ohio Sonic restaurants are without employees after their entire staffs walked off the job in protest against new management and its policies.

According to The Scioto Post, employees left a handwritten note on the door, reading in part, "Due to terrible management the whole store has quit. The company has been sold to people that don't give a f*uck about anyone but themselves."

A 💩 disability discrimination case

A call center employee, suffering from Crohn's Disease, asks his manager for some flexibility in the company's break schedules or other accommodations for his bathroom needs. Instead, his supervisor accuses him of stealing time and fires him.

Or at least that's what Nicolas Stover claims happened to him at a Kentucky Amazon call center.

What a morning at the BMV teaches about cybersecurity

I spent way too much of my Saturday morning at the local Bureau of Motor Vehicles (aka the Walmart of government agencies). "Why," you ask? Because my plates were on the verge of expiring, and I had forgotten to take advantage of the much preferable online registration process.

So there I found myself at 10 a.m. Saturday morning, waiting in line. To be fair, it was the "express" line, designated for license renewals only. My experience, however, was less than express, thanks to the patron two spots ahead of me in line.

You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

WIRTW #543 (the “terrible, horrible, no good, very bad day at the office” edition)

What was your worst day at work? Does it top the day that Cleveland criminal defense attorney Aaron Brockler had this past Tuesday?

I'll let Cleveland.com explain what happened:

A Warrensville Heights man shocked a courtroom full of spectators Tuesday when he sucker-punched his own defense attorney after a judge sentenced him to 45 years in prison…. Cuyahoga County sheriff's deputies took down David Chislton after the 42-year-old struck lawyer Aaron Brockler in the face with both of his handcuffed fists.

A courtroom deputy's body camera recorded the attack.


Brockler, who suffered injuries to his face and a possible concussion, at least kept his sense of humor, joking to reporters,"It was pretty fun."

File this one under why I don't practice criminal law.

Here's what I read this week:

If you want to stop workplace harassment, start by educating our children

How soon is too soon to start talking about harassment?

If we're talking about your workplace, the correct answer is that it's never too soon. You should start talking to your employees about your anti-harassment / anti-bullying / respectful workplace policies, expectations, and culture on Day One. A discussion should be part of each new hire's on-boarding and orientation.

What about outside of your workplace?

The 6th nominee for the “worst employer of 2019” is … the diverse discriminator

How many different ways can one employer discriminate? How about eight.

The EEOC recently settled a national origin and disability discrimination lawsuit against a staffing agency, brought on behalf of a group of Latino employees working at an Alabama poultry plant.

The FMLA does not require that an employee use magic words to request leave

According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.

What does this look like in practice? Consider the following two examples.

Do you know how to spot an employee at risk for violence?

Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.

After the news of this tragedy broke, reports surfaced of Martin's history of violence—six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.

All of which begs the question, should this employer have known that Martin was prone to violence, and, if so, should it have taken added measures in connection with his termination.

WIRTW #542 (the “Scared. Ashamed. Crippled.” edition)

A few days ago, Mark Goldstein, an attorney at Reed Smith, tweeted me (and others) this:

 

If you read on thing this week, read Mark's article, 'Scared. Ashamed. Crippled.': How One Lawyer Overcame Living With Depression in Big Law. We are in the middle of a mental health crisis in America. The more we talk openly about it, the more it becomes de-stigmatized, and the more comfortable those suffering will be to come forward and seek the help they need. It took a lot of courage for Mark to write this article. If you are suffering with mental health issues, or know someone who is, use Mark's example to ask for help. As Mark says, "You are not alone." We are here to help you, and will gladly do so, without judgment or scorn. 

Here's what else I read this week:

When the rumor mill creates a sexually hostile work environment

Just in time for Valentine's Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn't, but the workplace rumor mill sure thought she was.

The way we work might be changing, but independent contractors risks are staying exactly the same

The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship. 

So starts the 6th Circuit's opinion in Acosta v. Off Duty Police Servs., which applies the traditional "economic realities" test to determine whether private security and traffic control officers are employees or independent contractors.

One would think that with such a pronouncement at the head of the 6th Circuit's opinion, the court would be making a startling pronouncement broadening the landscape of who qualifies as an independent contractor. Those making that assumption, however, are sorely mistaken.

A textbook lesson the ADA's interactive process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, "Of course." The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA's interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Emojis are starting to pop up in discrmination and harassment cases 🤔🤷‍♂️

Law.com recently pronounced, "The Emojis are Coming!" That article got me thinking, are they coming to workplace litigation, too? After all, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases.

According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017. Let's not get crazy. The doubling went from six cases to 12 cases. But, a trend is a trend.

WIRTW #541 (the “Purl” edition)

Purl is an online-only Pixar short about a ball of yarn appropriately named Purl who gets a job in a bro-tastic workplace. As the only female, and only ball of yarn, working at B.R.O. Capital, she struggles to fit and yearns for acceptance from her all male, all human, co-workers. Purl's story has a lot to say about diversity and inclusion, and is well worth the just under nine minutes of your time.


Here's what I read this week:

FINRA's new "Best Practices" for Cybersecurity is MUST reading for any employer

The Financial Industry Regulatory Authority (FINRA) recently issued its Report on Selected Cybersecurity Practices – 2018 [pdf].

The Report identifies five common cybersecurity risks and outlines recommended practices for each:

• Branch controls
• Phishing attacks
• Insider threats
• Penetration testing
• Mobile devices 

While FINRA only regulates securities firms, the five topics its Report covers should be required reading for any employer that wants to understand how to implement cybersecurity best practices.

President Trump calls for federal paid family leave during State of the Union

Yesterday was the 26th anniversary of the Family and Medical Leave Act being signed into law. During last night's State of the Union Address, President Trump called for Congress to make paid family leave a federal law.

I am also proud to be the first president to include in my budget a plan for nationwide paid family leave — so that every new parent has the chance to bond with their newborn child.

How to recover a stolen computer from an ex-employee in seven easy steps

As many as 60% of employees who are laid-off, fired, or quit admit to stealing company data. Sometimes, they download information on their way out the door. Sometimes they email information to a personal email account. And sometimes they simply fail to return a company laptop or other device that contains the data. In the latter case, it costs an average of $50,000 for an employer to replace a stolen computer, with 80% of that cost coming from the recovery of sensitive, confidential, and proprietary information.

When you put this data together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.

The 5th nominee for the “worst employer of 2019” is … the fishy fishery

Atlantic Capes Fisheries agreed to pay $675,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.

The allegations that lead to the settlement, and this nomination as the worst employer of 2019?

WIRTW #540 (the “wheels off” edition)

The one question people ask me more than any other about this blog? "How do you write every day?"

My answer, "Because I love it."

The practice of law, for all of its challenges and rewards, can be mundane. This blog lets me be creative. I love the creativity of sharing information in a manner that makes it accessible and entertaining. If I didn't love this creative process, this blog would have died long ago, instead of just having passed 3,000(!) posts since it's inception nearly 12 years ago.

It is because of my love of this creative process that I implore you to check out Rhett Miller's new podcast, Wheels Off. It's conversations with creative people about their creative processes. Each of the first three episodes are outstanding listens, but my favorite thus far, the most interesting and engaging discussion, is Rhett's talk with Rosanne Cash. (Labor law bonus points for Cash, who discusses the musical she's writing based on the story of famous union organizer Norma Rae.)


The earnestness and passion of each as they share why they create as their careers is genuine and moving.

If you create anything in your lives, either as a vocation or avocation, or have any interest at all in those who do, I implore you to subscribe to Wheels Off in your podcast app of choice, and add each episode to your weekly listen.

Here's what I read this week:

Bad employment policies lead to new legislation

All the way back in October 2014, I wrote about an Illinois Jimmy John's franchisee that had required all of its employees to sign a Non-Compete Agreement as a condition of employment. 

I was not kind to this employer:

It's one thing to bind your managers and other high-level employees to a noncompetition agreement. It's another to require the same of your low-level sandwich makers and cash-register operators. The lower down the food chain you move, the harder it becomes to enforce these agreements.… [W]e're talking about sandwiches. What's the legitimate business interest this employer is trying to protect?

Yet, in the nearly half-decade since, employers have not heeded my advice. And, when employers fail, legislatures sometimes step in to fix.

Employment policies in the polar vortex

How frigid are the temperatures going to be in Northeast Ohio today? Just about everything is closed. Even the post office suspended mail delivery. Just because you remain open for business does not mean that your employees will be in a position to get to work. Pipes burst. Furnaces break. Cars die. And with schools closed, many parents need to remain home with their children.

In light of these historically low temperatures, here are five key considerations for workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

Employees on medical leave aren't bulletproof, but still handle with care

One of the questions that clients ask me most often is, "________ is out on a medical / pregnancy leave (or just returned); can we fire him/her?"

My response, always: "Why?"

NLRB flip-flops on key independent contractor test

The distinction between employees and independent contractors is one that still confounds employers. It is a vitally important distinction, because key employment laws, such as anti-discrimination laws, wage and hour laws, and labor laws do not apply to independent contractors.

WIRTW #539 (the “cover story” edition)

Big week in our house, as our 12-year-old daughter just had her first official press. Cleveland's Scene Magazine interviewed her for this week's cover story, on Cleveland-area cover bands.

 Needless to say, she was pretty jazzed about the whole experience.

And, she impressed the hell out of me:

Each new generation is also embracing classic rock—and some are even taking an open-minded perspective on the sonic opportunities afforded by cover bands. "People like seeing them because it's music that they can relate to that they've heard before," says Norah Hyman, the 12-year-old vocalist for Fake ID…. And, perhaps unsurprisingly given Hyman's generous perspective, Fake ID are putting their own spin on things.

"We tend to change in the songs to make it more difficult for us," Hyman says. "A lot of the vocal stuff, [my bandmates] let me decide what I want to do with it." Such freedom has helped improve her vocal technique, namely by showing her she doesn't have to add "grit" to her singing voice. "Now I'm able to put my own touch on the songs instead of copying them."

You can read the entire story here.


Here's what else I read this week:

What's is the dumbest workplace policy you've ever encountered?

I spent my day yesterday mediating a case before the Ohio Civil Rights Commission. The mediation took place in a conference room on the 8th floor of the state office building in downtown Cleveland. The hardest part of my day? Believe it or not, it was simply getting to the mediation.

Union membership is on the rise in Ohio; is your business ready?

Union membership numbers for 2018 are out, and while most employers should be encouraged, Ohio employers might think otherwise.

In Ohio, the percentage of workers belonging to unions is at 12.6 percent, up 0.1 percent from 2017. Nationally, union membership sits at 10.5 percent, down ever so slightly from 2017. In other words, Ohio’s union representation is both greater than, and growing faster than, the national average.

The 4th nominee for the “worst employer of 2019” is … the flagrant farmer

I'll let the EEOC do the heavy lifting on today's nominee for the Worst Employer of 2019 (the 4th thus far):

A federal jury rendered a verdict … awarding $850,000 in compensatory and punitive damages to a female farmworker at Favorite Farms in Dover, Fla., who was raped by her supervisor and reported it to police and management that same day.…

Ohio amends its employment laws to limit joint employment for franchisors

As the debate over the meaning of "joint employer" continues to rage at both the NLRB and in the federal courts, Ohio has jumped into the debate by passing legislation to limit this definition under various Ohio employment laws.

Effective yesterday, franchisors will not be deemed joint employers with their franchisees unless:

• the franchisor agrees to assume that role in writing or a court of competent; or
• a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademark, brand.

WIRTW #538 (the “drones” edition)

OSHA is now using camera-carrying drones to investigate outdoor workplaces.

The good news? Use is intended to be limited to areas that are otherwise difficult and dangerous for OSHA inspectors to access. Plus, OSHA will not use them without an employer's consent.

The bad news? Employers that withhold consent could face OSHA's ire and a search warrant. Plus, the program lacks any protections for things like scope of recording, employee privacy, or third-party access to the video.

You can more about it at the Ohio OSHA Law Blog, here.


Here's what else I read this week:

An expensive lesson on religious accommodations

A federal court jury in Miami has awarded a hotel dishwasher $21.5 million after concluding that her employer failed to honor her religious beliefs by repeatedly scheduling her on Sundays, and then firing her.

Gillette's toxic masculinity ad isn't the problem; toxic masculinity is the problem

Gillette is facing a lot of praise, and a lot of backlash, over its recent ad slamming toxic masculinity culture.

NLRB reverses course and restores some sense to its concerted activity rules

The NLRB is the federal agency that saw the widest expansion of employee rights during the Obama presidency. And the doctrine that expanded the most was the Board's definition of protected concerted activity.

In Whole Foods Market, the NLRB had previously held that "activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action." In other words, a lone wolf could act in concert with other employees based solely on his or her intent to do so. This rule lead to some absurd results.

Last week, in Alstate Maintenance LLC [pdf], the Board restored some much needed sanity to the definition of "concerted" for the purpose of protected concerted activity.

What's good for the goose? "Reverse" LGBTQ discrimination

If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views?