WIRTW #463 (the “so special” edition)

This weekend is a big one for Norah. Today, she graduates from 5th grade and walks across the quad to become a middle schooler. And tomorrow, she turns 11. I think she’s more excited than usual about this birthday, because 10 was not her favorite year. Let’s just say that she and preteen girl-drama have not mixed well, and some have gone out of their way to make her feel less than special. (and, yes, I realize that the drama is only going to get worse).

Which is why I legit teared up this past weekend when she sang, “Brass in Pocket” by The Pretenders.

When equal pay is not “equal” pay

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal, and substantial equality is measured by job content, not job titles. This Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including when the pay differential was “based on any other factor other than sex.” So, what happens if two comparable employees, one male and one female, come to you with different salary histories. Does the Equal Pay Act require that you gross up a lower earning female to match the salary of a higher paid male, or do the mere disparate prior salaries justify the pay disparity under the Equal Pay Act?

Federal court breaks new ground with transgender disability discrimination claim

The ADA expressly excludes from its coverage “transvestism, transsexualism, … [and] gender identity disorders not resulting from physical impairments….”

Thus, it should be an easy call for a court to dismiss a lawsuit in which an employee, born a male but who identifies and presents as a female, alleges disability discrimination because of her gender identity disorder.

Right?

I still despise the misnamed and overused phrase “wage theft”

Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year. According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.

The National Labor Relations Act protects the rights of non-employees under other statutes‽

In MEI-GSR Holdings, LLC (5/16/17) [pdf], a two-member majority of the National Labor Relations Board held that an employer violated section 8(a)(1) of the National Labor Relations Act when it banned from its property an ex-employee who had filed against it a wage/hour collective action under the Fair Labor Standards Act.

Let me pause for a second to let this sink in.

WIRTW #462 (the “those were the days” edition)

I write a lot about music (particularly for a legal blog), which means that if you are any sort of regular reader, you read a lot about music. What can I say? You write what you know. I we do a lot of music in my house. Between my two kids we have three bands, three weekly lessons, three rehearsals, and gigs, gigs, and more gigs (including three this weekend).

Much of my writing about music is about my favorite band, Old 97’s. And, I don’t apologize for it. Yes, I love their music, and their songs, and how damn good they are live. But I also love who they are, as noted by this clip from their Cleveland show last week.


Who else gets a shout-out from the stage in the middle of a concert? Norah, that’s who. I can only assume she’s learning and will pay it all back when she’s famous some day.

(Bonus, check out Nicole Atkins, who we knew very little about before last week, and she converted us all to huge fans with one 40-minute opening set).

Here’s what I read this week:

The 10th nominee for the “worst employer of 2017” is … guess who?

Let’s play a game. Close you eyes and imagine. Imagine you’re the CEO of a company. And let’s also imagine your VP of HR is investigating a former executive of the company (who happens to be close friend and confidant of yours) for illegal or unethical conduct. And imagine that you privately ask said VP of HR, on the down-low, if maybe he can give your good-guy buddy a pass and end his investigation.

Is your non-compete agreement killing a fly with a sledgehammer?

At least half of my legal practice is serving as outside labor-and-employment counsel for small to midsize businesses. And, increasingly, much of that practice is consumed with drafting post-employment covenants, sending cease-and-desist letters to employees who are in violation of said covenants, or filing lawsuits to enforce said covenants; or, conversely, advising a business whether it can hire an employee with a non-compete agreement, responding to cease-and-desist letters, or defending a lawsuit seeking to enforce said covenants.

A better take on what creates a hostile work environment

Last week, I nominated Target Corporation and MarketSource for the worst employer of 2017, because they ignored the approximately 10 incidents of vile ethnic harassment a Palestinian employee suffered during the brief two month tenure of his employment. Almost as bad was the logic of the 8th Circuit Court of Appeals, which concluded that, as matter of law, the employee failed to state a claim for ethnic harassment because the “morally repulsive” comments “were not physically threatening.”

Some courts, however, do get this issue correct. Case in point? The 2nd Circuit Court of Appeals, in Ahmed v. Astoria Bank (5/9/17) [pdf].

WannaCry? Then ignore cybersecurity

Friday, the largest cyber-attack in history hit 150 different countries. The ransomware, known as WannaCry, infects via a link in a malicious email, encrypts the local files, and spreads to other computers. It then demands a ransom of $300 in bitcoin for the unlock key. 

What can, should, and must you do, immediately, to protect your business? For starters, ensure that all computers are patched to the latest Windows update (Mac computers are unaffected). 

WIRTW #461 (the “Nörha’s School of Music” edition)

I love my kids’ school. Each year, the 5th grade math class ends with what is known as the “Million Dollar Project.” Each student is given a hypothetical million dollars to open the business of their choice. The students must research what is needed to open the chosen business and the associated costs, and then draft a budget to spend the million. Naturally, Norah chose a rock music school.

In addition to the research and the budget, each student must present their business to the class. Norah chose to present hers via a commercial, which I am proud to say she filmed, directed, and edited all on her own (with only minimal help from Dad on the ins and outs of how to actually use iMovie).

Enjoy.

Here’s what I read this week:

Critical employer law reforms move forward in Ohio House

Yesterday, Ohio House Bill 2, favorably reported out of the House Economic Development, Commerce, and Labor Committee. This is the important first legislative step to getting this bill passed and enacting necessary changes to Ohio’s employment discrimination law. HB 2 now moves onto consideration by the full House.

You can read all of the details at the Ohio Chamber’s All for Ohio Blog, including the key provisions of the legislation, and, most importantly, why the bill’s opponents shifted their stance to “neutral.” With opposition moving out of the way, I am cautiously optimistic that HB 2 will become law this legislative session. Stay tuned.

The 9th nominee for the “worst employer of 2017” is … the harassment ignorer

I was going to blog this morning about President Trump’s firing of FBI Director James Comey, and how, if you’re a CEO, and your company is investigating you for some misconduct (or even worse, potential illegal activity) related to your job, it’s bigly not good to fire the person leading the investigation, no matter the excuse you trump up.

Instead, however, today’s nominees are Target Corporation and MarketSource, (which operates mobile-phone kiosks in Target stores). Why do they make my list? Take a look at Abdel-Ghani v. Target Corp. (8th Cir. 5/5/17) [pdf].

Celebrating a decade of the Ohio Employer’s Law Blog

This is why it matters who runs the NLRB

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement may request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. In the 42 years hence, the Board has vacillated on the issue of whether Weingarten rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio [pdf], the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative.

Which brings us to 2017.

WIRTW #460 (the “my favorite week of the year” edition)

This week is my favorite week of the year, because five nights from now I’ll be standing front and center at the Beachland Ballroom watching the Old 97’s. Yes, I know I’m a fanboy. And you know what? I don’t care. I’ve come to grips with it. I can’t wait to hear live for the first time most of their latest release, Graveyard Whistling, including this destined to be classic, “Jesus Loves You”.


Come see what all the fuss is about. Tickets are only $20, and, for now are still available, but will sell out before the lights dim Wednesday night. And, if you’re not in Cleveland, please support these guys by checking them out when they come through your town, this spring, summer, or beyond.

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Update: Earlier this week, the House passed the Working Families Flexibility Act. Much of the press surrounding this bill frames it as a law that will take away overtime pay from employees. Click here to read why this spin is flat out wrong (hint: an employer cannot force comp time on any employee, and an employee must agree, in writing, to accept comp time in lieu of overtime pay).

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Here’s what I read this week:

6th Circuit says you can’t spell “cat’s paw” without F-M-L-A

It’s been six year since the Supreme Court decided, in Staub v. Proctor Hosp., which validated the “cat’s paw” as a valid theory of liability in discrimination cases. The “cat’s paw” seeks to hold an employer liable for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker.

An open issue in Staub‘s wake is whether other employment laws also apply the cat’s paw. For example, what about the FMLA? In Marshall v. The Rawlings Co. (4/20/17), the 6th Circuit concluded that the cat’s paw does apply in FMLA retaliation cases.

10 key elements of any data security policy to safeguard your company

Yesterday, I told you that small businesses (less than 250 employees) suffered 31 percent of last year’s cyberattacks. What can you do to best protect your business (of any size) to repel an attack? Let me introduce you to the Data Security Policy, an essential component of any employee handbook now, and likely forever.

What should an effective Data Security Policy contain? Consider 1) consulting with a knowledgeable cybersecurity attorney; and 2) including these 10 components (c/o me, Travelers, and the U.S. Small Business Association):

If you think your small business isn’t at risk for cybercrime, think again

If you’ve ever spoken or though the words, “We’re too small to worry about a cyberattack,” you’d better think again.

According to a recent study, 31 percent of all cyberattacks in 2016 were directed at companies with less than 250 employees.

Do I now have your attention? 

Wait, an employer can’t fire an employee on FMLA leave caught on Facebook on vacation?

Actual firing Facebook photo

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?