SCOTUS takes largely meaningless swipe at Obama’s NLRB legacy

Lafe Solomon

There is little doubt that under President Obama, the NLRB reinvented itself into an agency about which all employers must pay attention. One can trace much of this reinvention back to Lafe Solomon (a man with whom I once shared an NRP microphone), the NLRB’s acting general counsel from June 2010 through October 2013.

Yesterday, however, in NLRB v. SW General, Inc. [pdf], the Supreme Court held that Mr. Solomon’s tenure from January 5, 2011, through October 29, 2013, was unlawful, as it violated the Federal Vacancies Reform Act of 1998 (FVRA).

EEOC offers sage advice on following checklists for harassment compliance

Last June, the EEOC issued a comprehensive, bi-partisan report on harassment in the workplace. The report’s stated purpose was to “reboot workplace harassment prevention efforts” by focusing on efforts employers can take “in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated; ensuring employees are held accountable; and assessing and responding to workplace “risk factors” for harassment.”

One such tool the EEOC provided was a series of four checklist for employers to use to create an effective harassment prevention program.

• Leadership and accountability.
• Anti-harassment policies.
• Harassment reporting systems and investigations.
• Compliance training.

Swapping DNA for lower insurance costs is one wellness step too far

It is no secret that health care costs for employers and their employees are out of control. Many employers have attempted to hold down these rising costs by offering wellness-program incentives. The EEOC has signed off on these programs as legal as long as employee participation remains voluntary, which the agency defines as financial incentives for employee participation at or below 30 percent of the cost of coverage. Thus, employees have a choice—participate in the wellness program, or pay a surcharge of up to 30 percent.

One area that has remained off limits for employers under these wellness programs, however, has been genetic testing and other personal and family medical histories. A new bill moving through the House of Representatives, however, aims to change that.

WIRTW #453 (the “Oxford comma” edition)

Who knew that the l’il ol’ Oxford comma was so controversial? I would have never dreamed that yesterday’s post on the importance of its omission in a wage/statute would generate so much feedback, or that people feel so passionately about its use or non-use. In fact, it was my most shared and talked about post since my takedown of Trump’s first immigration ban.

To gauge exactly how you feel about the Oxford comma, I’ve designed a quick, one-question survey. Take a moment, and click “yes” or “no” on whether one should use the Oxford comma when writing.

Create your own user feedback survey
I’ll publish the results in the coming weeks.

Here’s what I read this week:

For want of an Oxford comma

Vampire Weekend once asked, “Who gives a f__k about an Oxford comma?” The answer, apparently, is the 1st Circuit Court of Appeals, a whole lot.

In O’Connor v. Oakhurt Dairy [pdf], that court reversed the dismissal of an overtime lawsuit based on the absence of a Oxford comma in a list of activities that qualify for a certain exemption under Maine’s wage-and-hour law.

The 11th Circuit’s odd LGBT-discrimination decision

Late last week, the 11th Circuit Court of Appeals, in Evans v. Georgia Regional Hosp. [pdf], held that Title VII does not protect sexual-orientation discrimination per se, and that to sufficiently plead such a cause of action under Title VII, one must allege facts sufficient to establish that the employer discriminated based on non-conformity with sex-based stereotypes. 

As such, this decision directly conflicts with the formal position of the EEOC (a priority that EEOC Commissioner Chai Feldblum announced will not change under President Trump), and expected decision by the 2nd and 7th Circuits.

Inclement weather policies should prioritize safety over productivity

Snow day! Norah went to bed with PJs on backwards last night (and received her wish; now please use your time wisely to work on homework). Donovan is going to be pissed because tonight’s Mathmagic night at school (which he was really looking forward to) will be cancelled. And me? I’m enjoying some flexibility by working from the comfort of my kitchen island. If the storm forecast holds as predicted, however, I'll be giving myself lots of extra travel time tomorrow morning for a court appearance. #lawyerlife

What about your business?

The 7th nominee for the “worst employer of 2017” is … the “trump”ed up termination

Last Friday, Attorney General Jeff Sessions asked for the resignation of 46 U.S. attorneys. Those that refused have been fired.

The fact that the current administration is cleaning its Justice Department house by turning over personnel appointed by the prior administration is not notable. Washington bureaucracy is run by the party-in-charge, and right now that means that President Trump is calling the shots on whom he employs and doesn’t employ. For example, Attorney General Janet Reno took similar steps in the early days of President Clinton’s administration.

WIRTW #452 (the “coffee house” edition)

Do you like acoustic guitar, Green Day, and a 10-year-old girl that is way too cool to be my daughter combining the two? If so, then this video, recorded last week at my kids’ school, is for you.


Here’s what I read this week:

The 6th nominee for the “worst employer of 2017” is … the double-booked recordkeeper

Yesterday’s nominee for the Worst Employer of 2017 may not end up as the last employer standing when I tally the votes at year’s end (at least according to some of the comments and tweets I received). Today’s nominee, however, should receive more universal support (or disgust, as the case may be).

How many sets of time and pay records should you keep on your employees? For your sake, I hope your answer is not any number greater than “one”.

The 5th nominee for the “worst employer of 2017” is … the no-pets-for-vets policy

The EEOC recently sued a Florida trucking company for disability discrimination, alleging it failed to accommodate, refused to hire, and retaliated against a job candidate because he used a service dog. (Complaint here [pdf])

So far, so bad. But it gets worse. From the EEOC:

SCOTUS reverses decision to review transgender bathroom case

Yesterday, the Supreme Court reversed an earlier decision that would have heard the appeal of a 4th Circuit opinion granting a transgender boy the right to use the bathroom of his identified gender.

The decision comes on the heels of the Trump administration’s policy change [pdf], which revoked the Obama administration’s guidance that protected the bathroom rights of transgender students in public schools.

Lessons from a ransomware attack

CNN reports that a ransomware attack has locked the computer network of the Pennsylvania Democratic Caucus. This is what we call a teachable moment.

What is ransomware? Ransomware is malicious software that locks one's computer or network until a sum a money is paid, at which point the cybercriminal provide a code to unlock the system. If the ransom is not paid with a set timeframe, they will wipe the data. And, any organization that relies on access to data, and cannot afford to lose access to that data at any time, is the prime target of a ransomware attack. Does that sound like your business?

WIRTW #451 (the “Graveyard Whistling” edition)

Thank god we got these guitars.

In this devil of world.

Turn it up make a little noise. 

– Old 97’s, “Irish Whiskey Pretty Girls”

So declare the Old 97’s on one of the more raucous tracks on their latest album, Graveyard Whistling, the band’s 11th studio effort. I’ve been turning it up and making noise since its release one week ago.

President Trump utters the phrase “paid family leave,” but what does it mean?

My administration wants to work with members in both parties to make childcare accessible and affordable, to help ensure new parents have paid family leave.

These were the words of President Trump during his joint address to Congress this past Tuesday night. While the administration has said little else about this “paid family leave” plan, Ivanka Trump, who has made this a priority to address in her dad’s administration, has given us some insight.

U.S. Chamber calls for common sense restoration of the NLRB … and I couldn’t agree more

To say that I have not felt overly optimistic about our nation’s course over next four years would be a bit of an understatement. One area, however, about which I am very optimistic is the expected retooling of the National Labor Relations Board.

This week, the U.S. Chamber of Commerce’s Workforce Freedom Initiative published a comprehensive report outlining the areas of federal labor law that the NLRB must address to restore balance to the workplace.

Can a hug create a hostile work environment? According to this court, yes.

Edward Prieto, the sheriff of Yolo County, California, likes to hug his co-workers … a lot. According to Victoria Zetwick, a county correctional office and the plaintiff in Zetwick v. County of Yolo (9th Cir. 2/23/17) [pdf], during the 12 years they worked together, Prieto hugged her hundreds of times. Zetwick also claimed that during that same time frame, Prieto hugged several dozen other female employees, but never male employees. Others, however, testified that Prieto also hugged me, just not as frequently as women. Zetwick alleged that a result she found it difficult to concentrate, and that she was constantly stressed and anxious about Prieto’s touching, which she believed had sexual overtones.

I birthed a rock star

On Friday, Rhett Miller, lead singer of my favorite band, the Old 97’s, and undoubtedly one of the good guys, held a Reddit AMA. I asked him what he knows now that he wishes he knew when he started in the music business over 25 years ago. His answer included this gem:

The important thing is that THE WORLD NEEDS MUSIC. And there will always be folks (like your sweet daughter) who will make that music!

Saturday night, my sweet daughter made that music, and then some.

Norah (age 10)

WIRTW #450 (the “Kurt” edition)

Earlier this week, Kurt Cobain would have turned 50 years old. Uncoincidentally, also earlier this week Norah stepped in for an absent bandmate to sing lead on the song that made Kurt Cobain and Nirvana a household name, “Smells Like Teen Spirit”. I think Kurt would have approved.

And some video - Smells Like Teen Spirit. Love the energy and how much fun the kids are having on stage.

A post shared by Jon Hyman (@jonhyman) on Feb 20, 2017 at 4:01am PST

This Saturday night, I’ll be at the Rock & Roll Hall of Fame, watching this band kill it in front of thousands as part of the High School Rock Off Final Exam. They are scheduled to hit at 9:25. Tickets are only $12, and include admission to the Rock Hall. It a great night watching the best the area’s school-aged musicians.

Here’s what I read this week.

What’s good for the goose … NLRB protects employee’s Facebook post critical of his union

It won’t take much searching through the archives to find posts discussing the NLRB’s protections for employees’ Facebook posts critical of their employers (here, for example). Protected speech under the NLRA, however, cuts both ways. Section 7 not only protects anti-employer comments, but also anti-union comments. Thus, it would make sense that the NLRB would conclude, as it recently did in International Union of North America, Local Union No. 91 [pdf], that section 7 protects an employee who posts on Facebook comments critical of his labor union.