WIRTW #482 (the “a bet is a bet” edition)

It’s been a couple of weeks since baseball’s evil empire, otherwise known as the New York Yankees, knocked my beloved Cleveland Indians out of the playoffs.

I can’t say the pain has gone away, but seeing the Astros as the American League’s representative in the World Series helps an ever-so-small small bit.

With no risk of Yankees winning it all this year, it’s time I paid off a little bet I made with Dan Schwartz over the outcome of the Division Series.

God, this hurts. But, a bet is a bet.

Here’s what I read this week.

When should HR call its lawyer?

Yesterday, I read When is an Employee Issue a Legal Issue (and When Is it HR)?, written by Dan Schwartz on his always excellent Connecticut Employment Law Blog. Dan posits that there are some instances when a business almost always should get legal involved with an employee issue, such as when it receives a “lawyer letter”, receives service of an agency charge or lawsuit, needs to conduct a privileged investigation, or confronts a complex or novel legal issue.

I’d like to address this same question from a more macro level.

Not all swearing at work is created equal

According to a recent survey, 57% of American employees admit to swearing at work. (To me, that seems low. Also, count me in the “yes” column.)

Where is the line between swearing as harmless workplace banter and swearing as harmful unlawful harassment?

Consider these two examples.

Bill O’Reilly claiming victim status is WHY we have a harassment problem

Over the weekend, the New York Times reported that Bill O’Reilly paid $32 million to settle a claim of sexual harassment brought against him by a former co-worker.

Yesterday, in an interview with the New York Times, O’Reilly let his accusers have it:

It’s horrible what I went through, horrible what my family went through. This is crap. It’s politically and financially motivated. We can prove it with shocking information. We have physical proof that this is bullshit.

The 23rd nominee for the “worst employer of 2017” is … the cake boss

As we wind down the year toward voting to name the first annual “Worst Employer of the Year,” I thought I had all bases covered. Then I read this story on Buzzfeed:

This Teen Says Her Chili’s Manager Sexually Harassed Her, And Her Coworkers Threw A Party To Shame Her

WIRTW #481 (the “proof of concept” edition)

When a commenter starts his thoughts with “Hey faggot,” you know you have one for the internet-troll hall of fame.

A couple of months ago I wrote a post entitled, When You Discover That You Employ a Nazi. This post generated the above-referenced comment on Workforce.com (which cross-posts my blog daily).

The rest of this winning comment?

Thank you, Mr. Bryson, for proving my point. Let me also suggest (if you can stomach it) that you check out his account on Disqus.com, which exposes his views on a range of topics, including LGBTQ people, the Jews, and school shootings as false flags. For the record, he is con, con, and WTF?!

Here’s what else I read this week:

When is a break not a break under the FLSA?

The FLSA draws a pretty clear line as to when breaks must be paid, and when they can be unpaid.

If a break 20 minutes or less in duration, it must be paid. Any longer, and an employer can make it an unpaid break.

What if, however, instead of providing employees paid breaks, an employer installs a system of flex time—the employer only pays employees for the time they are logged onto its system, which maximizes employees’ ability to take breaks from work at any time, for any reason, and for any duration.

Does this “flex time” system of unlimited unpaid breaks pass muster under the FLSA?

No, you do not need a workplace emoji policy

I read a blog yesterday that asked the following question? “Do you need a workplace emoji policy?”

They say yes, I say an unequivocal no.

Weinstein case highlights problem of “ostriching” harassment

It’s been a busy few days in employment-law land, with the Harvey Weinstein sexual harassment case dominating the headlines.

What have we learned?

• Weinstein is an (alleged) (do I really need to add this qualifier?) serial harasser, maybe one of the worst in history.
• His misconduct was the worst kept secret in Hollywood, with even Courtney Love discussing it all the way back in 2005.
• The Weinstein Company, and the members of its board of director, are in deep, deep trouble for ignoring Harvey’s (alleged) wandering eyes, hands, etc.

There is no *good* reason to be anti-LGBTQ rights

Last week I presented a webinar entitled, “The Top 10 Employee Handbook Mistakes.”

I discussed, among other policies, missing at-will disclaimers, salary discussion bans, failing to define the FMLA leave-year, inflexible leave of absence policies, and omitted or ineffective harassment policies.

I also discussed anti-discrimination policies that ignore LGBTQ employment rights.

During the LGBTQ section of the webinar, I provided the legal background on the issue (Title VII is silent, some states and municipalities have acted, and the EEOC and federal courts have stepped up to otherwise fill in Title VII’s gap).

I then issued this challenge to the attendees—

“Be on the right side of history.”

WIRTW #480 (the “another Fake ID” edition)

Indulge me, as this morning I once again take off my employment-law blogger hat, and replace it with my proud dad / music blogger hat.

Fake ID had quite the successful opening weekend of music. They started last Saturday night rocking The Pond Ice Rink’s annual clambake (encore included), and finished Sunday afternoon as the talk of the Hiram House Camp Pumpkin Festival.

It was an absolute joy to watch this band perform (and not just because one of them happens to be mine). These kids rock hard, work harder, and love what they are doing.

As one fan described his “favorite cover band in town” — “Book them now for your holiday party before they get their driver’s licenses!”


Follow these kids on YouTube for more videos from this past weekend, like them on Facebook for information on future gigs, and follow them on Instagram for more videos and other photos.

Here’s what I read this week.

Do you know what to do when an employee dies on the job?

It’s news an employer never wants to deliver.

“I’m sorry, but your spouse (or partner, child, or other family member) had an accident at work and unfortunately passed away.”

But it happens. In fact, according to OSHA it’s happened 357 times already this year.

Indeed, it happened just yesterday, at Cleveland State University. A piece of sheet metal fell and killed a construction worker.

Jemele Hill story underscores employees lack of understanding about personal social media and work

Social media has irreparably torn down the wall that has historically separated one’s work life from one’s personal life.

Earlier this week, ESPN personality Jemele Hill learned this lesson the hard way.

It’s coming from INSIDE THE HOUSE: 12 steps for your employees to become cyber-aware

Do you remember the movie When a Stranger Calls?

The movie opens with a babysitter receiving a telephone call from a man who asks, “Have you checked the children?” She dismisses the call as a practical joke, but as they continue, and become more frequent and threatening, she becomes frightened and calls the police. Ultimately, she receives a return call from the police, telling her that the calls are coming from inside the house.

(Cue ominous music)

October is National Cyber Security Awareness Month. And, according to one recent study, employee negligence or other error is the cause of 41 percent of all data breaches. Your data breaches are coming from inside your house. The question is what are you going to do about it.

What to do when your Harvey Weinstein harasses your employees

By now you’ve likely heard about the decades of harassment allegations levied against storied Hollywood producer Harvey Weinstein. Over the weekend, his company, the Weinstein Company, fired him.

Will your board have the courage to do the same if your CEO / President / founder engages in the type of misconduct alleged against Harvey Weinstein?

WIRTW #479 (the “pod” edition)

I am recently back on the podcast wagon. For reasons that I never understood, I abandoned the platform as a media source a few years ago. But I’m back with a vengeance.

Here are the five podcasts to which I’ve been most listening lately (along with their official descriptions and my favorite recent episode of each):

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?