Sometimes a banana is just a banana, and sometimes you're liable for harassment

An employee grabs a co-worker’s penis and pokes another employee with a banana protruding from the zipper of his pants.

Should the employer be liable for sexual harassment?

Well, it depends. An employer’s liability for harassment often hinges on whether the harasser is a “supervisor.”

Accommodating employees should be a common sense issue

I spent a high-school summer working on a warehouse loading dock. One of my co-workers was named Harland Jester. (I provide his name because he named his son “Court,” and this context provides the necessary color for the rest of the story.)

Four days in to my summer job, a co-worker pulled me aside and ask, “Did Harland get a hold of you yet?”

“Uh, no. Why?”

“Just wait.”

The 22nd nominee for the “worst employer of 2017” is … the wage absconder

Suppose you decide you are not going to pay your employees minimum wage and overtime required by the Fair Labor Standards Act. And let’s further say that the department of labor investigates your wage and hour practices and fines you to the tune of $1.95 million for the unpaid wages.

Do you—

1. Figure out how to pay the fine?
2. File bankruptcy and wrap yourself in its protections in an attempt to save as much of your assets as possible?
3. Transfer assets to family members to create an appearance of insolvency and inability to pay the fine?

Just try to curb your enthusiasm about this post on the ADA and attendance

On last night’s season-nine premier of HBO’s “Curb Your Enthusiasm,” Larry David was faced with this age old problem.

How does an employer handle an employee who skips work because she’s constipated?

Larry handled it by foisting his problem employee (his personal assistant) onto someone else.

What should you do?

WIRTW #478 (the “Fake ID” edition)

Norah has a small dry-erase calendar hanging inside her middle-school locker. And on that calendar, in the Friday block, she scribbled the words, “Fake ID”.

“Norah,” the Head of Middle School asked her, “why do you have ‘Fake ID’ written in your locker?” She reports that he seemed … concerned.

Bonus post today, because Roger Waters

If my 13-year-old self, sneaking off into the woods at sleep-away camp to listen to my bootlegged cassette of The Wall, could see me now…

When Roger Waters mentions your blog post from the stage, it merits a follow-up.

Trump flip-flops on LGBTQ workplace discrimination

“As your president, I will do everything in my power to protect our LGBTQ citizens.…”

Those were the words of then nominee Donald J. Trump at least year’s Republican Convention.

What’s missing from those words?

“…Unless you’re at work. Then you’re screwed.”

Yesterday, Trump’s White House announced that it will urge the 2nd Circuit Court of Appeals to rule that Title VII does not ban discrimination against gay employees. The court will decide whether, in that Circuit, Title VII’s definition of “sex” includes LGBTQ individuals. (The 7th Circuit has already says that it does.)

Are you tired of hearing me rant about this issue? Tired of hearing me tell you that it is shameful that in 2017 there still exists a group of people that the law does not clearly protect from discrimination? 

Well, I hope not. Because I’m going to keep doing it until this country WAKES UP and comes to its senses.

You can read my long history of support for LGBTQ workplace rights here.

7th Circuit rejects extended medical leaves of absence as ADA accommodation

Photo: speedpropertybuyers.co.uk/

“You’re FIRED!”

No, this post is not about a recent Trump rally; it’s about the end game to Severson v. Heartland Woodcraft, Inc., in which an employer terminated an employee unable to return to work after the expiration of his 12-week FMLA leave.

Updated: The 21st nominee for the “worst employer of 2017” is … the Whata(alleged)racist

It has been 53 years since Congress banned racial discrimination in employment. You’d think by now that all employers would know that you cannot hire an employee expressly based on their race.

Yet, how does one explain this lawsuit, recently filed against Whataburger?

A rebuttal to those who questioned my parenting skills

Over the past four days, I have taken A LOT of heat online for allowing my 11-year-old daughter to perform on stage with Roger Waters.

WIRTW #477 (the “just another brick in the wall” edition)

I had a whole post written about Norah’s punk show last weekend, and how her performance awed me.

Then this happened yesterday.

At 2:54 pm I received the following email from the School of Rock general manager:

Major Minors! Roger Water’s people just contacted us, they need 10-12 kids aged 10-15 tonight to be on stage for a section of the show (the we don’t need no education part). This is going out to you guys.… I need to know NOW.

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?