A humane approach of layoffs

In addition to this blog, I also pen a monthly column for Workforce magazine. Today, I thought I’d share my most recent column, entitled A Humane Approach to Layoffs. Enjoy.

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A Humane Approach to Layoffs

I thought we were beyond blaming the victim for sexual harassment

This post will be apolitical. I’d hold the same opinion whether the speaker of the comments I intend to discuss was a D, an R, or a something-else. As it stands, however, the speaker happens to be Donald Trump. So, if you don’t want to read something negative about the Republican nominee for President, click over to something else.

Hey, look, it’s me on the Channel 5 news!

Yesterday, I had the pleasure of an interview with Megan Hickey of Cleveland’s Channel 5. We talked about OSHA’s new fines that took effect yesterday.

 

Employers, ignore 7th Circuit’s rejection of Title VII LGBT protections

In Hivley v. Ivy Tech Community College (7th Cir. 7/28/16) [pdf], the 7th Circuit ruled that Title VII does not prohibit sexual-orientation discrimination. In doing so, this appellate court has taken a position directly contrary to that of the EEOC, which has concluded that Title VII expressly prohibits LGBT discrimination under the rubric of gender non-conformity-as-sex-discrimination.

The entire 42-page opinion is worth your time to read. It is a thorough analysis and summary of the state of the law (pro and con) of LGBT employment discrimination. Do not, however, dismiss this Court’s dismissal of Hivley’s claim as anti-LGBT. Instead of anti-LGBT rights, consider the 7th Circuit as pro-precedent. Indeed, even though the plaintiff loses her case, the Court has a lot to say on whether the result, which the Court believes Title VII mandates, is morally justified:

WIRTW #423 (the “final frontier” edition)

The Icarus Craft (with gold record)

As you can tell from reading this weekly column, I’m a bit of a music fan. I’ve also always been fascinated by outer space. In another life (one in which I’m actually good at science) I’d like to think I was an astrophysicist instead of a lawyer.

Thus, this bit of news, c/o Jack White’s Third Man Records, is particularly cool:

On July 30th, in celebration of our 7th anniversary, Third Man Records will reveal our attempt to play the first phonographic record in space — a gold-plated 12” master of Carl Sagan’s “A Glorious Dawn” (a moving arrangement of Sagan’s sagacious words culled from his magnificent Cosmos series, previously pressed and distributed as a 7” in their first year of operation, 2009). This record marks our 3 MILLIONTH RECORD PRESSED! The vessel tasked with the mission —The ICARUS CRAFT — is a custom-built “space-proof” turntable attached to a high-altitude balloon.

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

OSHA says “negative” to post-accident testing

Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in.

EEOC offers guidance for Youth@Work

Do you employee minors? If so, you should be aware of the wage-and-hour laws for child labor. The Department of Labor, however, isn’t the only federal agency taking a look at your under-18 employees. Recently, the EEOC launched an entire portal devoted to the issue.

The microsite, entitled Youth@Work, is the agency’s education and outreach campaign to promote equal employment opportunity for teenage workers.

For God’s sake, think before you email

I have lots of readers. Thousands upon thousands. Do you know who doesn’t read my blog, however? Former DNC Chair (and Congresswoman) Debbie Wasserman Schultz. How do I know? Because, if she does, she would have read this:

Ohio Supreme Court sides with workers’ comp fraud

Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer. 

It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.

Not so fast.

WIRTW #422 (the “Pikachu” edition)

The story of the week? Not the RNC, but Pokémon GO!, something about which I (happily) know very little. What does the blogosphere have to say about this phenomenon?

• Pokémon GO! Catch ‘Em All—All The Workplace Issues, That Is — via Labor & Employment Law Navigator
• Pokémon Go in the Workplace: Oh Look There’s a Pikachu! — via Employment Matters Blog
• The best, or at least most fun, workplace reaction to Pokémon GO — via Steve Boese’s HR Technology
• Just In: Musings on Pokémon Legal Issues Interrupt Law Profs’ Crazy-Busy Summer Schedules — via Law.com 
• ​​The ‘Pok​emon Go’ Craze: How Should Workplaces Respond? — via SHRM

Who knows what evil lurks in the hearts of public Wi-Fi?

According to Politico, an IT company set up various fake Wi-Fi networks around the RNC with names such as “Google Starbucks”, “I vote Trump! free Internet”, and “I vote Hillary! free Internet”. The goal was to see how many people would join the unsecured networks. The answer: 1,200, with 68 percent compromising the information on their devices.

“I use public Wi-Fi all the time,” you say. “After all, wireless data is expensive. What’s the harm in using a public network?”

Watch this video, and then let’s chat about how to discuss this important security issue with your employees.

Don’t forget your b.s. meter when conducting workplace investigations

By now, you’ve likely heard about the plagiarism flap that has embroiled the GOP following Melania Trump’s Monday-night convention speech.

In case you missed it, Melania Trump (or her speechwriter) is accused of copying parts of Michelle Obama’s 2008 DNC speech for Mrs. Trump’s 2016 oration.

Decide for yourself:

Ohio appellate decision sends working moms back to the 1950s

Employee claims her supervisor advised her not to apply for an open position because, “she is a single mother with kids and if [she] had to take time off work, it would jam [us] up for getting someone to cover the scheduling.”

Employee sues for gender discrimination. She wins in a landslide, right?

Court permits use of employee’s own racist Facebook posts in race-discrimination case

I read with interest this morning’s post on Eric Meyer’s Employer Handbook Blog, entitled, Court says employee’s Facebook page on race stereotypes is fair game at trial. The post discusses a recent federal court decision which permitted an employer to impeach at trial a race-discrimination plaintiff with her own racial Facebook posts.

WIRTW #421 (the “D-Man” edition)

Happy 8th birthday (yesterday, actually) to the best son a dad could ask for. He hasn’t had the easiest 8 years, but he’s always smiling and making people laugh. And for that (and too many other reasons to list) we love him to pieces.

When COBRA and workers’ comp collide

Every now and again I get a question from a client to which I don’t know the answer, or the answer surprises me. It doesn’t happen that often, and when it does I’m man enough to admit it.

Yesterday I received just such a question. Must an employer continue the health insurance of an employee out of work with a workers’ compensation injury?

Why #BlackLivesMatter should matter to employers

Earlier this week, an African-American Nashville police officer was decommissioned for changing his Facebook profile photo to that of Black Panther National Chairman Bobby Seale and Huey Newton holding a Colt .45 and a shotgun. The photo became iconic in the 1960 for the Black Power movement. Elsewhere in Tennessee, the Memphis police department suspended two police officers for Snapchatting a picture of a white person pointing a gun at a cartoon image of a black child running through a home.

Then, Cleveland Browns running back Isaiah Crowell Instagrammed this image, with the caption, “Mood: They give polices all type of weapons and they continuously choose to kill us...#Weak.”

Paternalism vs. pregnancy discrimination

Paternalism and pregnant workers do not mix. Case in point? According to this EEOC press release, the agency has sued a North Carolina retail-furniture franchise for pregnancy discrimination.

Developing an anti-harassment culture is key to stopping workplace harassment

You’ve likely heard that former Fox News host Gretchen Carlson has filed a sexual harassment lawsuit against Roger Ailes, her former boss and the Chairman and CEO of Fox News. The lawsuit alleges that Ailes retaliated against Carlson (which included ultimately firing her) after she spurned his sexual advances. You can read the lawsuit, which details the alleged harassment, here. 

WIRTW #420 (the “live” edition)

It’s been a while since I’ve given an update on upcoming speaking gigs, and I have a few upcoming. So, without further adieu.

• On July 27, I will be delivering Hot Topics in Wage-Hour Law for 2016 for the Cleveland HR Star Conference.
• On September 27, I’ll be speaking at Meyers Roman’s next Breakfast Briefing, The Department of Labor’s Wage & Hour Rule Changes—Are you Ready?! The free event will run from 8 – 10 am at the Cleveland East DoubleTree, and 2 hours of HRCI credits are pending. Email Sara Cox for more information or to RSVP.
• Finally, on November 15, I’m giving the Keynote at Workforce Focus on Law in Chicago. The topic—The Top 5 Mistakes Employers Make.

Please stop and introduce yourself if you're at any of these events. I love meeting my readers.

Here’s what I read this week.