Is LGBT discrimination finally coming to a head?

Two stories this week caught my attention:

• EEOC Sues Malcolm S. Gerald & Associates for Sexual Orientation Discrimination; and
• Is the EEOC going “wishy-washy” on LGBT rights at work?

The 20th nominee for the “worst employer of 2017” is … the nepotism harasser

Just when I think I’ve hit rock bottom with my survey of the year’s worst employers…

The EEOC reports that it has sued an Illinois IHOP franchisee for sexual harassment. While the allegations are bad, what makes this case worse is the allegation that the store owner ignored his employees’ complaints because the accused harasser was a close relative.

What it’s like to be sued by your employee

When you litigate, you’re losing.

This is an odd statement for a litigator to make. But it’s true.

The 19th nominee for the “worst employer of 2017” is … the pizza punisher

Your 19th nominee for the worst employer of 2017 is a Jacksonville, Florida, Pizza Hut franchisee that threatened its employees if they skipped work because of Hurricane Irma.

WIRTW #476 (the “… punk rocker” edition)

Genetics is a funny thing. We have no idea where Norah got her musical chops, as neither my wife nor I are anywhere close to what one would call musical.

Consider this, however. Joey Ramone’s real name was Jeffrey Hyman. Could this be the source of Norah’s musical chops (and her height)?

My dad says not to count on it. I’m holding out hope.

Norah will be doing her punk thing this Sunday and next Saturday at Slim and Chubby’s, 5 pm and 3 pm, respectfully. D-man precedes her at 3 pm (Sunday) and 1 pm (next Saturday) playing some Beatles tunes. 

Here’s what I read this week:

Discrimination

• Not Giving Employees Something (Namely a Discrimination Complaint) To Talk About — via Dan Schwartz’s Connecticut Employment Law Blog
• Can a man claim pregnancy discrimination? A man, baby! — via Eric Meyer’s The Employer Handbook Blog
• Liability for abetting workplace bias — via Walter Olson’s Overlawyered
• I keep finding my coworker in a compromising position … with himself — via Ask a Manager
• Unbelievable – Health Care Providers Sued For Disability Discrimination — via Above the Law

HR & Employee Relations

• Second-guessing the advice columns: Bad HR practices aren’t necessarily illegal. — via Robin Shea’s Employment & Labor Insider
• How HR Can Help Employees Handle Natural Disasters Again — via Mike Haberman’s Omega HR Solutions
• Yes, you can be fired for missing work while fleeing Hurricane Irma — via Wonkblog
• Employee theft robs US businesses of $50B annually — via HR Dive 
• Swimming Pool Company’s Non-Compete Claim Takes a Dive — via Suits by Suits
• Don’t Steal My Employees When You Quit – the Anti-Raid Provision — via Smooth Transitions
• Employment Authorization Issues Related to DACA Rescission — via Currents

Wage & Hour

• Chipotle Asks Court to Hold Employees in Contempt — via CUE, Inc.
• Does an Exempt Employee Need Permission to Leave the Office? — via Evil HR Lady, Suzanne Lucas
• Does Paying Time and a Half For Certain Work Count Toward Overtime? [Wage & Hour FAQ] — via Wage & Hour Insights
• If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated? — via Jeff Nowak’s FMLA Insights

Labor

• HR In a Union Shop: Here’s What Your Supervisors Need to Know — via TLNT
• Are you taping me? Audio and video recording in the workplace — via Technology for HR

OSHA & Safety

• Drug testing and OSHA retaliation – can employers test or not? — via Employee Benefits News
• Workers’ Compensation Coverage Of Off-Duty Injuries — via Employment Essentials

The more things change … the NLRB and Weingarten rights for non-union employees

Today, a joke.

“How is the National Labor Relations Board like the weather?”

“I don’t know, Jon, how?”

“If you don’t like either, just wait and they’ll change.”

[groan]

Not my best material, I know. But, it does illustrate an important point, driven home by an Advice Memo [pdf] just released by the NLRB Office of General Counsel on the issue of Weingarten rights for non-union employees.

The 18th nominee for the “worst employer of 2017” is … the pumping preventer

The 11th Circuit Court of Appeals has upheld a six-figure verdict in favor of a Stephanie Hicks, a former narcotics task force investigator for the Tuscaloosa, Alabama, police department. She sued, and won, after her former employer refused to permit her to pump her breast milk after returning from maternity leave.

A refresher on pre-employment medical examinations

Do you require medical exams of applicants before they start working for you? If so, do you know the rules that the ADA requires you follow?

Last month, the EEOC settled a lawsuit it brought against a Florida staffing firm for alleged unlawful pre-employment medical exams under the ADA, which serves as a good reminder for employers of these rules.

Where is the line between lawful (but awful) bullying and unlawful harassment?

Consider the following allegations of sexual harassment levied by Pamela Daniels, a secretary in the Pike County Prosecutor’s Office, against her boss, County Prosecutor Charles Robert Junk.

And then let’s answer the age-old question—lawful (but awful) bullying or unlawful harassment?

WIRTW #475 (the “girls rock” edition)

I’m not sure why, but when I pictured having a daughter I always imagined that she’d be into and frilly things, Barbies, and ballet. I guess it’s because it’s “what girls do”? This is so not Norah. She is a rock ‘n’ roll chick. She loves punk music, flannel shirts, the color black, and her telecaster. And I could not be more proud of her.

And she’s also a girl, playing in what has predominantly been a male dominated space. She’s even newly fronting a band of four guys (stay tuned, more on this exciting news in the coming weeks).

Thankfully, she’s always had really strong female role models at School of Rock (thank you Quinn, Erin, Kayleigh, Maddie, and Taylor). I’m also always on the lookout for new female-led bands for her to check out. That’s how we discovered Diet Cig, for example, and I recently discovered The Regrettes (fronted by a 16-year-old, another band worthy of your attention).

For these reasons, a story the New York Times ran last week caught my eye. Rock’s Not Dead, It’s Ruled by Women is a roundtable discussion with 8 women rockers, including Alex Luciano from the aforementioned Diet Cig, Shawna Potter of War on Women (one of Norah’s recent discoveries, thanks to her SoR Punk show), and Sadie Dupuis of Speedy Ortiz. They discuss their role as women working in a male dominated industry, their responsibility as role models, and how gender-based stereotypes still dominate and resonate.

It’s a great read.

As for my 11-year-old rocker (and her 9-year-old brother), they have shows coming up in the next two weeks:

• Sept. 17, Donovan does The Beatles at 3 pm, and Norah does punk at 5 pm.
• Sept. 23, Donovan re-does The Beatles at 1 pm, and Norah the punk thing at 3 pm.

All shows are at Slim & Chubby’s, 12492 Prospect Rd., Strongsville.

Here’s what else I read this week:

Baring it all on social media and hiring

I’ve never written about the time I stripped naked in front of my entire law school … until now.

Well, here we go.

Dads are parents, too — baby bonding and sex discrimination

Should new dad’s receive the same amount of time off from work to bond with their newly born child as do women? That is the question at the center of a lawsuit the EEOC recently filed against cosmetics giant Estée Lauder.

Is the DOL’s white-collar salary test DOA?

Late last week, a federal judge in Texas struck down the Department of Labor’s attempt to raise the salary test for the Fair Labor Standards Act’s white-collar exemptions from $455 per week to $913 per week.

The court held that because the statute defines the administrative, executive, and professional exemptions based on their duties, any salary test that renders the duties irrelevant to the analysis is invalid. Thus, because the Obama-era $913 salary test could overshadow the exemption’s duties in the execution of the exemptions, the new salary level is invalid.

I founds footnotes 5 and 6 to be very interesting, but I’m not sure the position they advance are intellectually consistent with the bulk of the opinion.

Compare:

This opinion is not making any assessments regarding the general lawfulness of the salary-level test or the Department’s authority to implement such a test. Instead, the Court is evaluating only the salary-level test as amended by the Department’s Final Rule. ... During questioning at the preliminary injunction hearing, the Court suggested it would be permissible if the Department adjusted the 2004 salary level for inflation. [fns. 5 and 6]

-vs-

The Final Rule more than doubles the previous minimum salary level. By raising the salary level in this manner, the Department effectively eliminates a consideration of whether an employee performs “bona fide executive, administrative, or professional capacity” duties. ... Nothing in Section 213(a)(1) allows the Department to make salary rather than an employee’s duties determinative of whether a “bona fide executive, administrative, or professional capacity” employee should be exempt from overtime pay. [opinion]

To me, the only way to read the opinion is that any salary test exceeds the DOL’s authority to implement the EAP exemptions (fns. 5 and 6 notwithstanding). Alternatively, if the only salary test that will pass muster is one that is so low that anyone who meets the duties test also must, de facto, meet the minimum salary threshold (the status quo of $455, adjusted for inflation to $592), why have a salary test at all?

Thus, in the opinion of this blogger, the DOL’s salary test is DOA. Now, let’s wait for the appeal and see what the court of appeals has to say on this issue.

WIRTW #474 (the “I’m from” edition)

My 11 year old daughter is a unique soul. She’s always been older and wiser than her years suggest, but I don’t think I’ve ever appreciated exactly how much older or wiser until I read her “I’m from” poem.

She just entered 6th grade, and this poem was her first ever middle-school assignment. This year's language arts curriculum is focused around the idea of identity. Her assignment was to craft a poem defining her own personal identity—where she’s from.

The result floored me. I cried real tears. Not just out of joy that my 11-year-old could produce something of such beauty, but that this beauty reflects a deep understanding of who she is.

So perfectly Norah.

Here’s what else I read this week.

BREAKING: federal judge strikes down FLSA white-collar exemption salary test

Ding, dong, the DOL’s salary test for white collar exemptions is dead (sort of).

A Texas federal judge has held that the Department of Labor improperly used a salary-level test to determine which white-collar workers are exempt from overtime compensation.

That time Justin Bieber’s “L’il Biebers” caused a sex discrimination lawsuit

File this one under the category of I can’t make this stuff up. Apparently, Justin Bieber’s testicles are at the center of a recently filed sex discrimination lawsuit.

The 17th nominee for the “worst employer of 2017” is … the square non-sparer

A female public relations exec is suing her former employer for sex discrimination. Her claim—that her male bosses limited her access to toilet paper the bathroom because, as a female, she used more than her male counterparts, and was fired after she complained about the discrimination.

An attendance love story

14 years ago today, my wife and I married.

The ceremony started at 11 am, and by 10:55 I was nervous. Not your normal, “I’m about to get married,” nervous, but the, “What the hell, we start in 5 minutes and my bride-to-be isn’t here yet” nervous. It was 2003, before the prevalence of iPhones. Without a cell phone on me, I just had to take it on faith that Colleen was on her way. Nevertheless, I was most definitely jittery.

Letter to employees during EEOC investigation may violate discrimination laws

Suppose an employee files an EEOC charge of discrimination against you. And, further suppose that during the investigation, you receive a request from the agency for the name and contact information for all similarly situated employees. You correctly assume at the EEOC may use the information to contact your employees for investigatory interviews.

Do you—

1. Allow the EEOC process to proceed; or
2. Inform your employees of the nature of the charge, the EEOC investigation, that the EEOC may contact them, and that their participation would be 100 percent voluntary?

If you choose option “2”, you may have violated federal discrimination laws, at least according to a Connecticut federal judge.

WIRTW #473 (the “sweet children” edition)

Last week I offered by eight-word meaning of life: Be kind to others and do good things.

Today, I further offer “Corollary One” to said meaning of life: And do all you do with joy.

Earlier this week, I took my family to see Green Day (easily the best arena concert I’ve ever attended). Yet, as good as Green Day was (and they really were that good), my personal highlight was looking right to bear witness to how much pure fun Norah was having. This is what pure joy looks like.

I had a great time seeing @greenday, but not as great as this girl.

A post shared by Jon Hyman (@jonhyman) on Aug 21, 2017 at 8:55pm PDT

Here’s what I read this week: