Don’t ignore unpaid leaves as a reasonable accommodation

Two recent EEOC lawsuits (here and here) illustrate the risk employers continue to take when they deny unpaid leaves of absence to employees as a reasonable accommodation under the ADA.

http://dilbert.com/strip/2015-10-21

EEOC lawsuit highlights risk of dealing with prescription medications in the workplace

There is no doubt that prescription-pain-medication abuse is a rampant problem in America. Indeed, this week the State of Ohio even went so far as to limit the ability of an injured worker to receive reimbursements for pain meds from the state workers’ compensation fund.

So, what then does one make of this story from Employment Law 360, describing a recent lawsuit the EEOC filed against Georgia medical practice?

Why the DOL’s federal contractor paid sick leave rules matter for all employers

Last week, the Department of Labor rolled out its final regulations mandating paid sick leave for the employees of federal contractors. According to the DOL, Once fully implemented, more than one million employees of federal contractors will be covered. At the highest of levels, the rule mandates that covered workers earn up to 56 hours (7 work days) of paid sick leave annually. Notably, the rule does not apply retroactively, and only applies to new federal contracts and replacements for expiring contracts on or after January 1, 2017.

WIRTW #432 (the "Hotel Norha" edition)

This what one’s happy place looks like

Jack White month comes to an end with a few clips from Norah’s most excellent School of Rock “Many Shades of Jack White” show. She was asked to do a lot in this show. Of the 19 songs in the set, she sang lead on 9 (including Hotel Yorba, in which sang and played guitar), guitar on another, and background vocals on 3 more. That’s a .684 batting percentage, which is a whole bunch for a 10 year old to carry on her shoulders. And she totally killed it (not that I’m biased).

Two things stand out for me. First, I love when Norah gets to sing and play guitar simultaneously, which she did on one of my all time favorites, Hotel Yorba. Secondly, I love how Norah is no longer just on stage singing or playing some songs, but is transitioning into an entertainer, cognizant of the fact she is, in fact, putting on a show for an audience.

Judge for yourself. Here’s the best 14:03 from the shows.


Here’s what I read this week.

Will OSHA’s new whistleblower rules invalidate your settlement agreement?

When an employer presents an agreement to an employee ancillary to the separation of that employee’s employment, or settles a claim asserted by an employee, part of the bargain for which the employer is paying is finality. Yet, over the past couple of years, the federal government has made this finality harder and harder to achieve.

Confidentiality, non-disparagement, and other “gag” provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.

The most expensive bottle of orange juice ever

Today, I bring you a first for the blog. A magic trick. Read along as the EEOC transforms a $1.69 bottle of OJ into $277,565.

I’ll let the EEOC explain it’s own magic:

Can you require flu shots for your employees?

As the calendar winds its way into autumn, and as the temperature starts to trend downward, we move into flu season. Which is why should pay special attention to this story from Employment Law 360:

Are you sure you want to take that case to trial?

Consider Locigno v. 425 West Bagley, Inc. [pdf], decided last week by an Ohio appellate court.

This case is remarkable. Because of some odd communications between a juror and the court, the concurring opinion gives a unique look behind the curtain of jury deliberations. And it isn’t pretty.

WIRTW #431 (the “stop breaking down” edition)

Last Saturday was Jack White show #1 for Norah and her School of Rock friends. One of my personal highlights was Norah singing The White Stripes’s cover of the Robert Johnson 1937 blues classic, “Stop Breaking Down”.

A video posted by Jon Hyman (@jonhyman) on Sep 17, 2016 at 6:04pm PDT

Show # 2 is this Sunday, September 25, at 12 pm, Brothers Lounge,11609 Detroit Ave., Cleveland. As always, stop and say hi, and I’ll buy you a beer.

Here’s what I read this week:

Yes, these are my readers

It’s rare that I write a same-day follow-up post, but an email I received from a reader in response to this morning’s post merits special attention.

The email read as follows:

Your article on why your son hates Donald Trump is way off base. I think it exemplifies why you have not adequately informed your son on the facts such as she could always come here on a tourist visa….. Educate your son and let him know that part of the reason for Trump’s stance on ILLEGAL immigration is because one day an Illegal Immigrant just might take the job he wants to earn more money.

This was my response:

He’s 8, and while brilliant (the apple not falling far from the tree), I think the nuances of immigration policy might be a bit much for him. Besides, we start our policy discussions in the Hyman house with nuclear proliferation. Immigration policy isn’t until he turns 10.

I’m going to assume I now have one less reader, and that’s perfectly fine by me.

Discourse matters

My eight-year-old son hates Donald Trump. I know hate is a strong word. I rarely use it (except when describing the most evil of all condiments, mustard. I hate mustard).

But, Donovan hates Donald Trump. All you have to do is mention his name, and he will tell you how much he hates the Donald, and how he has no room in his life for anyone who thinks any differently.

Over the months of listening to our son tell us of his hatred for Trump we never thought to ask why. Until we did.

When is December 1 not December 1? When two lawsuits challenge the new overtime rules.

On December 1, the Department of Labor’s new salary test for exempt employees is set to take effect, raising the salary level to qualify for certain white collar overtime exemptions from $455 per week to $913 per week.

That is, it is set to take effect if the two lawsuits filed yesterday don’t delay or outright stop the rules from taking effect.

Regulating social media at work is a Sisyphean task

According to Ajilon (as reported by BenefitsPro), American employees spend 140 per year (or an average of 33 minutes per day) on Facebook, Twitter, Instagram and other social networks. Aggregated across all employees, the survey estimates this personal time costs employers $192.4 billion each year.

These numbers, however, merely beg the questions — (1) should you care and (2) what can you do about it?

11th circuit decision on dreadlocks and race asks big questions on the meaning of discrimination

In EEOC v. Catastrophe Management Solutions [pdf], the EEOC asked the 11th Circuit to determine whether banning an African-American employee from wearing dreadlocks constitutes race discrimination.

In a lengthy decision that discusses the very concept of race, the court answered the question “no”.

WIRTW #430 (the “third man” edition)

I have officially dubbed September Jack White Month in the Hyman house. I’ve never hid my love of all things Jack White. So, when the same month brings us the release of Jack White – Acoustic Recordings 1998-2016, a live Tonight Show performance, and my daughter performing in an all Jack White show (9/17 @ 2:30 and 9/25 @ noon, Brothers Lounge, mention this blog and your beers are on me) what's not to love?

Here’s what I read this week:

The NLRB is now basically creating unfair labor practices out of thin air

Image via forbes.com

Those that have been readers for awhile know of my dislike of the NLRB’s expansion of its doctrine of protected concerted activity (e.g., here and here).

The latest on the NLRB’s hit list: employee mis-classifications. The NLRB has concluded that an employer has committed an unfair labor practice and violated an employee’s section 7 rights by (mis)classifying its employees as independent contractors. Or so was the Board’s conclusion in its recently published General Counsel Advice Memorandum [pdf].

When it’s better to be lucky than good

Employers, sometimes it is better to be lucky than to be good. Case in point? Graves v. Dayton Gastroenterology [pdf], decided yesterday by the 6th Circuit.

Our employment discrimination laws are not a pretense

Last week, the 6th Circuit decided Richardson v. Wal-Mart Stores [pdf], a fairly run of the mill age discrimination lawsuit. The court decided that Richardson had failed to establish that Wal-Mart’s reason for firing her—a two-year history of disciplinary warnings—was pretext for age discrimination.

What caught my interest was not the decision itself, but instead the following statement made by the plaintiff’s attorney to Employment Law 360 about the decision:

The unfortunate reality is that anti-employment discrimination laws have largely become a pretense in the U.S. These laws remain on the books; but many courts rarely enforce them.

Forced retirement is an age discrimination no-no

Image credit: slate.com

The EEOC has sued a Colorado hospital for age discrimination. The key allegation? That it forced employees to resign because of their age. The lawsuit claims hospital managers made ageist comments, including that younger nurses could “dance around the older nurses” and that they preferred younger and “fresher” nurses.

According to Phoenix District EEOC Regional Attorney Mary Jo O’Neill, “Research shows that pervasive stereotypes about older workers still persist—for example, there are widespread stereotypes that older workers are less motivated, flexible, or trusting and that a younger workforce is preferable. These stereotypes are flatly untrue and must be recognized for what they are—prejudice and false assumptions.”

WIRTW #429 (the "top 10" edition)

Blame it on the Labor Day holiday and the resulting short work week, but the labor and employment news has been a bit scarce this week. So, instead of my usual categorical breakdown of the week’s best posts, I am listing them as a (sort of) top 10.

Here are the top ten labor and employment law posts from this past week (not written by me, and not really in any particular order):