Does OSHA provide a defense for employee misconduct? It depends.

As the saying goes, you can’t teach stupid. No matter what safety measure you put in place, your employees will do stupid things at work, and sometimes they will get hurt.

Court rejects customer’s claims based on harassing Facebook posts by employees

Consider the following scenario. An employee makes offensive posts on his personal Facebook page about one of your customers, which include the following:

“I seen Maurice’s bougie ass walking kahului beach road … nigga please!”

A number of other employees comment on or like the post, including a comment to “run that faka over!!! lol.”

When the customer learns of the posts and comments, he complains. You investigate and fire the offending employees.

Case over, right? Not so fast. The customer sued the employer for negligence relating to its supervision, retention, and training of the offending employees.

The EEOC says, “Preventing Discrimination is Good Business”

Are you a small-business owner? Do you have problems understanding your obligations under the federal employment-discrimination laws? Then the EEOC is here for you.

Last week, the agency published a one-page face sheet, entitled, “Preventing Discrimination is Good Business” (available in English and 29 other languages, such as Amharic, Marshallese, or Tagalog … really).

NLRB narrows employer property rights in key solicitation decision

One of an employer’s best tools to stave off labor unions and their organizing campaigns is a no-solicitation policy. It keeps employees focused on work during working hours, and keeps non-employees (including, but not limited to, union organizers) off your property and out of your workplace.

Yet, over the past couple of years, the NLRB has narrowed employers’ no-solicitation rights. For example, employer email systems must now be open for union-related activities during non-working time.

What about low-tech solicitations? Conventional wisdom used to be that employers could prohibit solicitations in work areas during working time and non-working time. Does this work-area rule still hold?

WIRTW #403 (the “royals” edition)

One of the benefits my kids get from going to a K – 12 school is the experience of varsity high-school sports. Don’t get me wrong, Lake Ridge Academy is far from an athletic powerhouse. The school is much more focused on academics and fine arts than sports. However, once in a while, a team catches fire, and, when it does, my kids get to hitch a ride.

Right now, the girls’ basketball team is that team. Tomorrow night, we play Cornerstone Christian (a team we beat in January) for the right to go to Columbus for the State Division IV Final Four. It will be the school’s first ever trip to the Elite Eight in any sport. The Elyria Chronicle-Telegram recaps the thrill of last night’s 41 – 40 come-from-behind victory over the state’s top ranked team.

Go Royals.

Also, I’d be remiss if I didn’t say a thank you to the student from Perry High School who, after I arrived to a very full parking lot, let me park in the press lot after I told her I was a blogger. This is the post I promised you.

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

Is it illegal to “right size” employees to avoid ACA obligations?

In the past six months, I’ve had more questions from clients about group health insurance than I’ve had in the first 18 years of my practice combined. All of the questions start the same: “Our health insurance premiums are out of control. How do we…?”, finished by some inquiry about moving older workers to Medicare, or shifting high-cost workers to the exchange, or some other machination to avoid the Affordable Care Act.

The reality, however, is that the ACA makes it pretty damn hard to move high-cost employees off of your health insurance to combat out-of-control (and still rising) insurance costs.

Dave & Buster’s thought it had the answer—reducing employees from full-time to part-time.

Last month, however, the district court hearing an employee-challenge to this insurance “right sizing” handed round one to the employees.

EEOC sues employers challenging sexual orientation discrimination as Title-VII sex discrimination

Yesterday, the EEOC filed two lawsuits, each claiming that an employer’s discrimination against an LGBT employee violated Title VII’s prohibition against sex discrimination.

From the EEOC’s press release:

DOL looks to move the needle on paid sick leave

Last week, the Department of Labor announced proposed regulations that would expand paid sick leave to the employees of federal contractor and subcontractors. These regulations would implement Executive Order 13706, which President Obama announced last year. According to the DOL, these regulations will provide paid sick leave to 828,000 employees.

Given that our country has over 121 million employees, why does it matter than a scant 0.68% of the American workforce has access to federally mandated paid sick leave?

Happy Leap Day (or, Happy Exempt Employees Work Free Day)

Today is Leap Day, an every-fourth-year occurrence that adjusts for the astronomical anomaly that it takes the Earth 365.25 days, and not 365, to circumnavigate the sun.

What does this have to do with employment law, you might ask?

WIRTW #402 (the “starman” edition)

I realize that these Friday posts have started taking on a decided rock ‘n’ roll feel. It's a hobby, what can I say. If you prefer, you can skip lede and go right to the list of what I read this week.

Wednesday night, the Brit Awards (aka, the British Grammys) were held in London. They did an amazing tribute to David Bowie, which started with a medley played by members of his backing bands throughout the years, and ended with a stirring version of what might be his best song, Life on Mars?, sung by Lorde. I promise, it’s worth a few moments of your time.

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

Language matters when drafting restrictive covenants

Consider the following language in a non-solicitation agreement:

Neither PARTY will directly solicit for employment a current or former employee of the other PARTY who has performed any work in connection with this AGREEMENT. This provision will remain in effect during the term of the SERVICES and for one (1) year from the date of said former employee’s separation of employment from P&G or CONTRACTOR.… Further it is acknowledged that simply hiring an employee of the other PARTY is not a restricted activity in the absence of an improper solicitation as described above.

“Lady Murderface”, Yelp, and the National Labor Relations Act

By now, you’ve likely heard about the employee fired by Yelp for her very public blog post directed at her former employer’s CEO, criticizing her $24,000 annual salary. Here’s a particular biting excerpt:

I wonder what it would be like if I made $24,000 more annually. I could probably get the headlight fixed on my car. And the flat tire. And maybe even get the oil change and renewed registration — but I don’t want to dream too extravagantly. Maybe you could cut out all the coconut waters altogether? You could probably cut back on a lot of the drinks and snacks that are stocked on every single floor. I mean, I could handle losing out on pistachio nuts if I was getting paid enough to afford groceries. No one really eats the pistachios anyway — have you ever tried answering the phone fifty times an hour while eating pistachios? Those hard shells really get in the way of talking to hundreds of customers and restaurants a day.

EEOC is now an open book for employees, grants access to employer position statements

Back in the day, if an employee wanted to obtain a copy of an employer’s EEOC position statement, the employee had to go through a process under the federal Freedom of Information Act. For starters, the employee had to wait until after the EEOC issued a right to sue letter, and the EEOC could deny the request for a variety of reasons.

By back in the day, I mean last week. Because, last week, the EEOC implemented a yuge (inner Trump voice) policy change, which provides for the release of an emplyer’s position statements and non-confidential attachments to an employee, upon request, during the investigation of a charge of discrimination. Employees or their representatives must request the document. The agency will not automatically turn it over. But, employees avoid the formality of the FOIA-request process. FOIA, on the other hand, still governs employers’ requests for copies of employees’ submissions (How is that fair?)

Two reasons not to forget about the ADA’s interactive process

Two recent EEOC cases illustrate the importance of employers engaging in the ADA’s interactive process to determine if one can offer a disabled employee a reasonable accommodation.

WIRTW #401 (the “rock off” edition)

Last Saturday night Norah performed to a crowd of 1000-plus inside the Rock & Roll Hall of Fame. We weren’t allowed backstage, but heard that she was pacing a trench of nerves into the Rock Hall’s floor before her band took the stage. Was she nervous about having to perform in front of a crowd that large in the most important gig of her young life? Nope. “I don’t get nervous about that, dad.” She was just nervous that the cold she’d been fighting would cause her voice to crack. It didn’t, and she rocked the Rock Hall.

The future of rock is in very good hands, the 15-second video evidence. @hsrockoff @schoolofrockcle @rockhall #thisiscle

A video posted by Jon Hyman (@jonhyman) on Feb 14, 2016 at 6:52am PST

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

Essential reading: Harvard Business Review’s step-by-step guide to fire someone

File this under posts I wish I’d written. Yesterday, the Harvard Business Review published A Step-by-Step Guide to Firing Someone.

Firing an employee is the most difficult job any business owner, executive, manager, or HR person has to do. I’ve been there. It absolutely sucks. (And it absolutely sucks even more when the fired employee breaks down and starts crying). HBR synthesizes the process in three essentials tips to handle the decision, and five (not-so-easy) steps for the termination itself.

Hug it out, just not necessarily at work

“Do hugs belong in the workplace?“ is the headline of a story on Cleveland.com that caught my attention.

The hug just may be on its way to competing with the handshake as a common workplace greeting. The percentage of people who say they would hug co-workers—that they either know well or haven’t seen in awhile—nearly doubled from five years ago, according to a recent poll.

Of course, one person’s hug is another’s creepy gesture or, worse, inappropriate advance. Where is the workplace line?

Intermittent FMLA does not permit sleeping on the job (usually)

Let’s say you have an employee approved for intermittent FMLA for migraine headaches. Let’s also say co-workers of said employees find her asleep at work during her shift. When you fire the sleeping, migraine suffering employee, do you have potential worries under the FMLA?

According to Lasher v. Medina Hops. (N.D. Ohio 2/5/16), the answer is a resounding “no”. The issue, however, is not as cut-and-dry as this case makes it seem.

Scalia

I was on my way to the Rock and Roll Hall of Fame to watch my daughter perform at the High School Rock Off when my phone started going nuts with updates, letting me know that Justice Antonin Scalia had unexpectedly passed away. Everyone will not agree on his legal and constitutional interpretations, but everyone universally agrees that without him, Supreme Court oral arguments will be much less interesting, and Supreme Court opinions will be a whole lot more boring. I cannot remember a Supreme Court without his sharp wit and styling prose, which cannot be replaced.

WIRTW #400 (the “400th” edition)

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