WIRTW #411 (the “Green Day” edition)

I’m pretty excited for my daughter’s next School of Rock performance. The show is called “Nerds vs. Punks”, whch pits two of 1994 greatest albums against each other, Weezer’s Blue Album and Green Day’s Dookie.

Here’s a 15-second sneak peak of what you’ll see at Brother’s Lounge on the afternoons of May 14/15.

A video posted by Jon Hyman (@jonhyman) on Apr 5, 2016 at 4:42pm PDT

Here’s what I read this week:

Amended medical marijuana bill offers employers higher protections

Last month, I reported on the introduction of Ohio House Bill 523, which would legalize medical marijuana in Ohio. I suggested that the bill’s protections for employers, which go further than those of either of the two competing November ballot measures, are a good start, but would likely need some tweaks to provide employers all of the protections they need.

Yesterday, employers got some much needed help, with an amended H.B. 523 [pdf], which significantly expands the rights of employers in regard to employees legally using marijuana.

Transgender bathrooms is a solution in search of a problem

In the blogging world, when you snooze, you lose. Yesterday, my fellow bloggers were all over the EEOC’s publication of guidance on bathroom access for transgender employees:

• Eric Meyer’s Employer Handbook Blog: Not letting transgender employees use the restroom of their gender identity is sex discrimination 
• Phil Miles’s Lawffice Space: EEOC issues transgender employee fact sheet 
• Robin Shea’s Employment & Labor Insider: EEOC posts fact sheets on LGBT discrimination, transgender issues 
• Dan Schwartz’s Connecticut Employment Law Blog: Bathroom Access Rights Guaranteed By Title VII
• The Russ Runkel Report: EEOC & OSHA on transgender bathrooms access

Here’s the bottom line.

Looks like the DOL just put its new salary test on the discount rack

It’s been a few weeks since we last peeked in on the DOL’s upcoming increase for teh FLSA’s salary test (Winter is coming … for the FLSA’s salary test). It’s long been expected that the DOL would increase the salary test for the administrative, professional, and executive exemptions from $23,660 per year (or $455 per week) to an expected $50,440 per year (or $970 per week). Now, however, it’s been reporting that the DOL has had a change of heart, and will step up the salary threshold to $47,000 per year (or a nice, round, $903.85 per week).

Maternity leave vs. “Me-ternity” Leave, and what it means for work-life balance

I read with great interest the following story in the New York Post, entitled, “I want all the perks of maternity leave — without having any kids.”

The story, written by Meghann Foye, a self-professed overworked, yet childless, woman in her mid-30s (and author of a recently published novel called “Meternity”), argues that all women deserve “me” time away from work, and that maternity leave shouldn’t be limited just to new moms.

WIRTW #410 (the “odd jobs” edition)

What is the oddest job in America? It might be the folks who blur to the naughty bits on Discovery Channel’s Naked and Afraid. From The Seattle Times:

“This is a totally weird work environment,” said Shaun O’Steen, the 45-year-old leader of the team, which calls itself the Blur Man Group. “I mean, what job can you say, ‘Oh, my God, look at that penis,’ and not have to worry about HR?” …  For O’Steen, the task is slightly complicated by one more fact: His desk is opposite that of a 27-year-old who is the only woman and, by far, the youngest member of the blurring group. She is also his wife.

No matter how weird you think your job is, I’m going to bet it’s not this weird.

Here’s what else I read this week:

Let’s not forget about damages when litigating our cases

When employers are sued, they do not put enough thought into damages. The typical response is, “We didn’t discriminate; we aren't liable.” But, the reality is, unless you win a case on summary judgment (sadly, an unlikely result), you need to think about what a case is potentially worth and how much a plaintiff can potentially cover. For starters, it will drive settlement discussions. Moreover, and more importantly, if a case does not settle, you will want to whittle that number down as low as possible to limit the potential exposure at (gasp) trial.

Ohio tries again to add LGBT rights to employment discrimination law

As I’ve said more times than I can count, I think it’s repulsive that, in 2016, it is lawful under Title VII and the employment-discrimination laws of most states to discriminate because of one’s LGBT status.

S.B. 318 [pdf], introduced in late April, looks to change this aberration in Ohio.

DOL publishes new employer FMLA guide

Since I recently cut a check to the IRS for the balance due on my taxes, I thought I’d take today’s space to review how the federal government spends our tax dollars. Today’s examination? The Department of Labor’s newest publication, The Employer’s Guide to the Family and Medical Leave Act [pdf].

Ohio introduces employee background check legislation

It’s been a busy couple of months for employers, keeping up with the employment-related legislation popping up in Columbus. First, we had the Employment Law Uniformity Act, then the Pregnancy Reasonable Accommodation Act, next the Family and Medical Leave Insurance Benefits Act, and finally the Medical Marijuana Act.

Next on the docket? Legislation to regulate how employers compile and use certain background information in the hiring process.

WIRTW #409 (the “thank you” edition)

This morning I want to say a brief thank you to two organization, each of which hosted me to speak yesterday.

Yesterday morning, I presented Everything You Need to Know About Cyber Security (in 30 minutes). Thank you to local accounting firm Ciuni & Panichi for hosting me at its breakfast session, and a special thanks to Mike Klein for the invite and arranging the event.

Then, last evening I presenting Hot Employment Law Issues for 2016 to a group of HR professionals for ConnectedHR. Thank you to Mark D’Agostino, Connected’s President, for arranging the event and inviting me. It was the first time I’ve ever presented in a wine bar, and, moving forward, it should be the only venue in which I present.



Before we get to this week’s list of links, one more thank you to Walter Olson, who featured me in one of his posts at Overlawyered this week.

Here’s what I read this week.

Eye rolls might be passive-aggressive b.s., but they are not actionable harassment

Me: “Clean your room.”

Daughter: (rolls eyes)

Me: “Pick your clothes up off the bathroom floor.”

Daughter: (rolls eyes)

Me: “If you don’t like what I pack you for lunch, pack your own.”

Daughter: (rolls eyes)

Me: I’m not a huge fan of the age of almost 10. The pre-teen, I-know-everything, don’t-bother-me. Yes, I know it gets better, and, yes, I’m sure I was just as bad, if not worse (no comments from the Mom and Dad peanut gallery, please).

Eye rolls are annoying, passive-aggressive bulls---. But, are they actionable as sexual harassment?

No, you can’t make offensive videos about your co-workers, even with Legos

Since we’ve gone serious the last two days, I thought we’d go with the less-serious today. Watch this video, and then let’s talk.

Is it time for a new NLRB rule on handbook policies?

Last week, in William Beaumont Hosp. [pdf], the NLRB issued yet another decision holding that an employer’s work rules unreasonably infringed on employees’ rights to engage in protected concerted activity. Not newsworthy, right?

What is newsworthy, however, is that the lone Republican currently serving on the NLRB, Philip Miscimarra, used the decision as an opportunity to publish a scathing dissent calling for a complete re-write of the NLRB’s rules on employer policies and protected concerted activity.

The 18-page takedown is a must read for any employer frustrated with its inability to draft facially neutral, reasonably based work rules.

Are you ready for medical marijuana?

Sooner rather than later, medical marijuana will be a reality in Ohio. Currently, there are three separate efforts to enact this law: two ballot initiatives and one piece of legislation.

What does this mean for Ohio employers? Let’s start with the legislation, H.B. 523.

WIRTW #408 (the “jobs are all jobs and sometimes they suck” edition)

Ken had a surly fan last night. But when life gives him lemons, he makes memes.

A photo posted by Rhett Miller (@rhettmiller) on Apr 7, 2016 at 12:55pm PDT

Even rock stars have bad days at the office.

Ohio introduces paid-sick-leave legislation

There is little argument that the U.S. lags behind the rest of the civilized world on paid sick leave. As the federal government has failed to act on this issue for all but a small minority of federal-contractor employees, the state and local governments have started to pick up the slack.

Now, Ohio is considering getting in the game. H.B. 511—the Family and Medical Leave Insurance Benefits Act [pdf]—would, in essence, create state-administered short-term disability insurance for employees who need time off for an FMLA-covered reason.

8th Circuit rejects obesity as an ADA-protected disability

In a closely watched case, the 8th Circuit Court of Appeals, in Morriss v. BNSF Railway Co. [pdf], has rejected a claim that the ADA protects “obesity” as a disability.

What issues are on the NLRB’s radar? Be afraid.

If you want to know the legal issues that are on the NLRB’s radar, you need to look no further than NLRB General Counsel Memo 16-01 [pdf], which lists those categories of cases that “are of particular interest and would benefit from centralized consideration.” In other words, which cases must the NLRB’s regions submit to D.C. for charge-or-don’t-charge decisions?

Several areas defined as “initiatives and/or priorities” caught my attention, and should catch yours too:

Winter is coming … for the FLSA’s salary test

In case you’ve been living in the dark for the past year, the FLSA’s salary test is due for some changes, and the changes are coming soon. The latest intel suggests that the reguations—which will increase salary-level at which employees will qualify for the administrative, executive, professional, and computer employee exemptions from $23,660 per year (or $455 per week) to an expected $50,440 per year (or $970 per week)—will publish in July with an effective date in September.

Last week, the George Mason University’s Mercatus Center published a comperehensive analysis of why these new regulations will be detriemental to employers and employees. The report (pdf here, h/t Overlawyered) is well worth your time if you are interested in a solid analysis of the intended and unintended consequences of adding an estimated five million additional workers to the rolls of the non-exempt.

I’d like to focus on one such unintended consequence—lack of workplace flexibility.