Congrats to Philip Miscimarra on his appointment as NLRB Chair

I’m on record as calling Philip Miscimarra “mad as hell,” referring to his scathing dissents in recent NLRB protected concerted activity cases. I also have it on good authority that while he and I agree that the NLRB has gone off the proverbial reservation in these cases, he is not, in fact, mad as hell.

Be that as it may, he has every reason today to be as happy as he can be.

2nd Circuit holds that it’s perfectly okay for an employee to curse out his boss on Facebook (NSFW)

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

National origin discrimination laws don’t matter in Trump’s America

Last week, President Trump signed his “Buy American, Hire American“ Executive Order. The EO encourages American businesses to buy American-made products and hire American workers.

Come again? Does that say hire American workers? Doesn’t Title VII prohibit national origin discrimination?

Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this EO is … curiously disturbing.

WIRTW #458 (the “update” edition)

Two stories I’ve recently covered—Fox News’s Bill O’Reilly sex harassment problem and Ernest Angley’s wage-and-hour problem—had pretty significant updates this week.

• Fox News (finally) fired Bill O’Reilly.
• Earnest Angley closed his buffet, which had for years illegally used the services of unpaid volunteers and child labor. Looks like he finally found something he could not save.

Who says there’s no justice in this world?

Here’s what else I read this week:

Working Families Flexibility Act seeks to legalize comp time in lieu of overtime

If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.

The Working Families Flexibility Act, introduced earlier this year in Congress, seeks to change this rule.

6th Circuit tees up decision on LGBT discrimination coverage under Title VII

The 6th Circuit is currently considering whether Title VII’s definition of “sex discrimination”.

EEOC v. R.G. & G.R. Harris Funeral Homes alleges that the funeral home fired its funeral director because she is transgender and transitioning from male to female. The Eastern District of Michigan concluded that Title VII does not expressly cover LGTB discrimination, and limited the sex discrimination claim to a sexual stereotyping claim.

The bar for what qualifies as unlawful harassment in the 4th Circuit is pretty damn high

How high is the bar for what qualifies as unlawful sexual harassment in the 4th Circuit? Pretty damn high, if you ask me. Consider that in Wilson v. Gaston County [pdf], the Court concluded that the following misconduct did not entitle the plaintiff to a jury trial on her sexual harassment claim:

2nd Circuit provides plan for employers to win misclassification cases

In Saleem v. Corporate Transportation Group (2nd Cir. 4/12/17) [pdf], the 2nd Circuit Court of Appeals considered whether a company properly classified a group of black-car taxi drivers as independent contractors, or whether it should have classified them as employees. In ruling for the company, the court gifted employers a game plan to use when classifying workers to minimize risk in making the key determination of whether a worker is an employee or an independent contractor.

WIRTW #457 (the “sad clown” edition)

You say you want to see a sad clown sing a mashup of The Who’s “Pinball Wizard” to the tune of Johnny Cash’s “Folsom Prison Blues”? I’ve got you covered. Ladies and gentlemen, Puddles Pity Party.


Here’s what I read this week:

6th Circuit avoids key legal issue, but still absolves union of harassment liability

Samuel Gompers, founder of the AFL, wrote that “[w]herever trade unions are most firmly organized, there are the rights of the people most respected.” But Gompers wasn’t quite right if Tanganeka Phillips’s claims are true; she alleges that one of the largest unions in North America discriminated against her on the basis of race.

When a judicial opinion starts out with a quote such as this, it’s usually not a good sign for the defendant, unless you happen to be the United Auto Workers, the defendant in Phillips v. UAW Int’l (6th Cir. 4/12/17) [pdf], which walked away from some pretty bad allegations of racial harassment.

Communicating with employees is key when a PR crisis strikes

Lots has been said about how United Airlines mishandled violently dragging a passenger from an overbooked flight. And none of it is good. Yet, make no mistake, how United CEO Oscar Munoz communicated with his company’s employees immediately following the incident did not do anything to make it any better.

United CEO email to employees obtained by ABC's @Shahriar44R: "there are lessons we can learn from this experience" pic.twitter.com/N1TbohuRc3

— Michael Del Moro (@MikeDelMoro) April 10, 2017

Bill O’Reilly and Fox News teach us how not to ignore workplace harassment

Bill O’Reilly’s (alleged) lewd comments and inappropriate come-ons may have finally caught up to him and his employer, Fox News. I don’t, however, want to focus my attention on the salacious allegations, which are just that, allegation. Instead, I’d like to focus on Fox News’s response to the allegations, as to why it has so dragged its feet to do anything in response.

I’ll let John Oliver explain only as he can.

Promotion after protected activity dooms employees retaliation claim

What does unlawful retaliation not look like? Burton v. Board of Regents of Univ. of Wisc. Sys. (7th Cir. 3/17/17) offers a good example.

WIRTW #456 (the “new music Friday” edition)

I’m always on the lookout for new bands. This week brings us a good one—Diet Cig, whose debut album drops today. Enjoy.


Here’s what I read this week:

A lesson on workplace posters from, of all places, Homeland

If you’re on Homeland, and operating a covert, CIA backed, sock-puppet misinformation operation, where do you hang your workplace posters? In your interrogation room, of course.

State and federal laws require that all employers have posters conspicuously placed in the workplace. 

7th Circuit historically holds that Title VII expressly bans LGBT discrimination

If you spend any time reading or watching the news today, you will inevitably encounter much about the 7th Circuit’s historic (and correct, in my opinion) decision in Hivley v. Ivy Tech Community College [pdf]. You can read the background of this case here.

The court expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Hivley now stands in direct contradiction to the opinion of the 11th Circuit in Evans v. Georgia Regional Hosp., which sets up this issue for a showdown in the Supreme Court.

The adverse action standard for retaliation is low (but not this low)

The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.

But, is does it reach this low? In Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17), a federal court concluded that two managers’ general rudeness towards the plaintiff, which started only after the plaintiff filed a civil rights complaint, stood as a sufficient adverse action to support his retaliation claim.

Job descriptions count (but not as much as you think) in ADA cases

Donald Bush worked as a chef manager for Compass Group. According his written job description, his duties included routinely lifting more than 10 pounds. Bush informed his employer that he suffered from rapidly progressing cervical/thoracic spondylosis (a degenerative back condition), and requested a transfer to a less physically demanding job. Ultimately, Compass Group fired him because his illness prevented him from heavy lifting of over 50 pounds.

So, who wins Bush’s disability discrimination claim? Bush (based on the 10 pound limit in his job description), or Compass Group (based on its estimation of the practical realities of his job’s lifting requirements)?

WIRTW #455 (the “God’s not in the restaurant biz” edition)

Two years ago I reported on a lawsuit the DOL filed against Akron, Ohio, televangelist Ernest Angley, alleging he employed unpaid volunteers in his church’s for-profit buffet restaurant. The judgment is in, and it’s not good news for Mr. Angley. U.S. District Judge Benita Pearson, in a scathing opinion [pdf], has ordered him and his church to pay employees more than $388,000 in damages (half for unpaid wages and half for liquidated damages).

Reverend Angley would suggest that Church members had an obligation to provide their labor to the Buffet, in service to God, and that a failure to offer their labor to the Buffet … would be the same as failing God. … Reverend Angley would thus coerce Church members into agreeing to volunteer at the Buffet. …  Reverend Angley thus used “scare tactics/bullying” and made “people feel bad” for not working at the Buffet. … Reverend Angley preached that he was God’s prophet, and saying “no” to Angley would be tantamount to saying “no” directly to God. … Reverend Angley also preached that repeatedly saying “no” to God or failing God ultimately leads to a person “blaspheming against the Holy Ghost,” which meant that the individual’s connection to God has been lost and was irredeemable. … 

The Buffet is a commercial, for-profit institution in competition with a number of other commercial eateries in its immediate vicinity. … Defendants stress the alleged religious purpose served by the Buffet and its ability to provide low-cost meals. … But they undoubtedly achieve those low prices, at least in part, by circumventing wage laws and maintaining a workforce that is largely unpaid. … Indeed, Reverend Angley admitted that the Buffet reverted to using volunteers as a cost-saving measure. … 

Seems like the correct result to me.

Here’s what else I read this week:

Social media may distract employees, but should we care?

I posted this from work yesterday

Earlier this week, I asked when employees will learn that online comments can, and will, be used against them. There is another half to the workplace-social-media equation—employers, who have the task of regulating their employees’ use of social media, which happens more and more in the workplace.

Yesterday, Cleveland reporter Olivia Perkins discussed a recent survey, which found that nearly 90 percent of employees access personal social media accounts at work, to varying degrees of distraction.