WIRTW #488 (the “all harassment, all the time” edition)

As you’ll see below, sexual harassment has become such a big story that it’s (sadly) earned it’s own headlining category in my weekly recap of What I Read This Week. I am looking forward to the day (hopefully sooner rather than later) when I can delete it.

For now, sexual harassment continues to dominate the headlines, both general and employment law. This week, I guested on the Talent 10x podcast to discuss sexual harassment at Work in a Post-Weinstein World.

Here’s what I read this week:

New OFCCP director inherits a criticized agency

If you are a federal contractor or subcontractor, the letters O-F-C-C-P hold real meaning for you. They stand for Office of Federal Contract Compliance Programs. It is the federal agency which ensures that employers doing business with the federal government (i.e., those holding federal contracts and subcontracts) comply with federal laws and regulations requiring nondiscrimination in employment, including their affirmative action obligations.

Yesterday, the OFCCP named Ondray T. Harris as its new Director.

Today is your last day to vote for the WORST EMPLOYER OF 2017

If you have not yet voted for the Worst Employer of 2017, your time is running very short. The polls close at 11 pm today.

Who is your favorite?

• The Cancerous Boss — company fires employee who needs a 10-day leave of absence for cancer surgery; tells him she doesn’t “need people with cancer working in her office”

• The Racist Boss — employer that gifts an African American employee a confederate flag purse as a Christmas gift after she had complained about harassment

• The Horny Head of HR — employer ignores employee’s complaints about the HR head’s lascivious conduct and inappropriate text messages; tells him, “I hope you’re not going to sue me,” while nibbling on his ear

Vote now at www.surveymonkey.com/r/worstemployer.

I’ll announce the big winner (or the big loser, depending on your perspective) next week.

Did you miss the Employment Law Year in Review webinar? Today is your lucky day.

Last week, I had the pleasure of presenting, along with four other “top employment law bloggers” (at least according to Corporate Counsel), plus the Evil HR Lady herself, Suzanne Lucas, a webinar entitled the “Employment Law Year in Review.”

Response was much higher than anticipated for this event, so much so that we had to turn people away. I hate turning people away.

So, we decided to make the webinar recording available for everyone to enjoy.

It’s not #MeToo that’s killing your office holiday party; it’s your workplace culture

Last week, Fox News host Laura Ingraham asked if the #MeToo movement is ruining the office holiday party.


“Is the #MeToo movement becoming a spoiler for this season’s Christmas parties? … I can see this year it might a little less festive. No alcohol and no fun and no lampshades and no nothing, and, I don’t know, maybe that’s better. Is this just killing all the fun of Christmas?”

WIRTW #487 (the “(no) regrettes” edition)

One of my absolute favorite things to do is taking Norah to concerts. 

Wednesday, I’m taking her to a punk show.

SWMRS / The Interrupters / The Regrettes.

I have no doubt that I will be one of the oldest people there, maybe by a couple of decades. And, I don’t care a lick.

I love their music. I love being able to experience it with my daughter. And I’ll continue to love doing it for as long as she wants to hang with Dad at a concert.

So, if you find yourself at the Agora Wednesday night, look for us up in front of the stage. That’s where Norah likes to be, and I’ll be bouncing right next to her.

And, if you don't know The Regrettes, check them out. They might be the opener, but they are the band I am most excited to see.


What do you do to keep yourself feeling young? Share in the comments below.

Here’s what I read this week:

I am honored to have been the first ever guest on the Hostile Work Environment podcast

Have you cast your vote yet for the Worst Employer of 2017?

Whether your answer is “Yes,” “Not yet”, or “What are you talking about,” I recommend you listen to the latest installment of the Hostile Work Environment podcast (available today).

I was honored be the first guest ever on what has quickly become one of my favorite podcasts. (Thanks to Marc and Dennis!)

New Year’s Resolutions — NLRB-style

Have you started thinking about your New Year’s resolutions for 2018?

The NLRB’s newly minted general counsel, Peter Robb, has, and employers will be very happy.

Is this the worst harassment training video of all time, or is it the best?

Much of the news lately has focused on how we, as employers, can do a better job training and otherwise educating our employees about workplace harassment.

So, I ask—is this parody the worst harassment training video of all time, or, is it so bad, that it’s actually the best training video?


I think I’m leaning towards the latter—that this video is so brilliant in its awfulness that it might just make a really good training tool, or least part of great compliance and education program.

What do you think?

Share your thoughts in the comments below.

Our harassment laws are not the reason for our sexual harassment problem

Last week, the New York Times ran an Op-Ed titled, Boss Grab Your Breasts? That’s Not (Legally) Harassment.

It argues that our lax sexual harassment laws, and the courts that apply them, are responsible for our current workplace harassment problems.

WIRTW #486 (the “all apologies” edition)

Accused of sexual harassment? Don’t know what to do?

Thankfully, the Celebrity Perv Apology Generator has you covered.

Example?

As the father of daughters, I am deeply ashamed (but not “sorry” because that means I’m guilty of something). At the time I believed that my sociopathic manipulation of the 22-year-old in my office was consensual, and of course now I realize my behavior was wrong. In conclusion, I will get the help I so desperately need because this isn’t actually my fault, I have a problem so I’m not responsible for my actions.

(I’ll take this over Matt Lauer’s “apology” 10 times out of 10; at least this one is honest.)

Thank you, Dana Schwartz, Rob Sheridan, and Scott McCaughey, from bringing some much needed levity to an otherwise awful situation.

Here’s what I read the past two weeks:

How not to harass women, in one easy step

Last night we went to dinner at our favorite local restaurant. Donovan ordered his favorite dish—gluten free penne alfredo. He is not a great eater. Usually, despite this dish’s “favorite” status, he will eat two bites and proclaim, “I’m full.” Last night, the general manager, who was covering chef duties, decided to have a little fun at D-Man’s expense. Instead of a full plate of pasta, he sent a small dish with two lonely noodles. We howled. Donovan was not amused. We explained that sometimes teasing is an expression of affection, which was the category into which this little joke fell.

I’m happy to report that Donovan got over the good-natured joke, and, for the first time I can recall, cleared his full plate (after it was delivered to the table).

That was funny.

What’s not funny?

The Worst Employer of 2017: The Finalists

I started this journey all the way back on January 12, 2017, in a post discussing an employer who fired a man absent while attending his son’s birth.

This poll of the year’s worst employers seemed like a fun way to illustrate how employers shouldn’t act. Your response suggests that I might be on to something.

Almost one year and nearly 600 votes later, we’ve cut the 23 nominees down to these three finalists (in alphabetical order):

In the spirit of #GivingTuesday, here are 7 considerations for your charitable donations policy

Today is Giving Tuesday, a global day of charitable giving, which symbolically kicks off the season for those who choose to focus their holiday and year-end giving.

How does your company support employees’ charitable endeavors?

Timing is everything when defending a retaliation claim

Miriam Valle worked as a ticket agent for Frank Martz Coach Company, until it fired her on January 27, 2016.

Two weeks prior, she had advised her immediate supervisor, Edward Steltz, that she needed to apply for FMLA leave for breast cancer surgery. Martz approved the leave to begin on January 19, and was scheduled to return to work on January 25 following her surgery. Complications pushed that return dated back by four days. Before she could return, however, Martz fired her following an investigation into complaints by co-workers that she had made violent threats (allegations which Valle denied).

In Valle v. Frank Martz Coach Company (M.D. Pa. 11/16/17), the court denied the employer’s motion for summary judgment and held Valle’s FMLA retaliation claim for trial.

Today is your last day to vote in the preliminary round for the “Worst Employer of 2017”

Today is your last day to vote in the preliminary round for the “Worst Employer of 2017.”

Voting in the cut-down round has been robust, with nearly 600 votes cast to date.

That said, there have been three clear leaders since day one.

Yet, several others are within a few votes of squeaking into the finals.

So, what are you waiting for? If you haven’t voted, click here and vote.

Polls close at 11 pm, and will re-open next Wednesday for one final round of voting on the three (or more?) finalists.

Your employees are your brand ambassadors; train them accordingly

“Dad, can you take me to the craft store?”

My 6th grader has a diorama due the day after Thanksgiving break.

So, off Norah and I went to the craft store last night.

Employees that allegedly take an employer’s stuff without authorization don’t win discrimination cases, but might win defamation cases

Jason Shann worked as the Enterprise Desktop Management Team Leader in the IT department of Atlantic Health System. He also suffered from tinnitus, a crackling and buzzing noises in his left ear caused by an Eustachian tube dysfunction. His tinnitus would flare up unpredictably, and, as it worsened, it caused him to suffer anxiety and depression.

As a result, he applied for, and was granted, a 21-day FMLA leave, and intermittent leave thereafter upon his return to work. Despite the intermittent FMLA leave, his tinnitus continued to worsen. Ultimately, he decided to take short-term disability leave, which he intended to role into long-term disability and retirement. 

Prior to leaving Atlantic Health, the company discovered that he had “removed” a plethora of computer assets from his workplace. According to the police report, he took four laptops, one iPad, three hard drives, one portable DVD-R/RW and RAM Drive, one mouse, and an AC adapter for one of the laptops. The company also discovered that he had used unauthorized third-party software to overwrite more than 27,000 files on the one hard drive he left at his desk.

WIRTW #485 (the “what I’m listening to this week” edition)

A few weeks ago I listed my five favorite podcasts, and asked you for some suggestions to add to my listening queue.

Had I waited a month, Hostile Work Environment would have topped the list.

Each week, Marc and Dennis will bring true stories of wacky, grotesque, and just plain bizarre workplace happenings. And while we hope that you find these cases as interesting and amusing as we do — and laugh along with us in the telling — make no mistake, we’ll also be bringing analysis and legal discussion of those cases.

Two episodes in, they have not disappointed. You cannot go wrong discussing an employee’s fear of the mark of the beast, or a company that disciplines poor performers by spanking them with yard signs.

If you’re reading this, I know you’re an employment law and HR nerd (it’s okay to admit it; I came to grips with it a long time ago). Do yourself a favor a jump over to hwepodcast.com, or your podcast app of choice, and queue up the first two episodes. I guarantee that your daily commute will thank you for it.

Here’s what I read this week:

Work stress and the ADA

I’ve been thinking a lot lately about stress, and the anxiety it can, and often does, cause.

Stress induced anxiety can cripple someone. According to the Anxiety and Depressions Association of America:

• 72 percent of people who have daily stress and anxiety say it interferes with their lives at least moderately.
• 40 percent experience persistent stress or excessive anxiety in their daily lives.
• 30 percent with daily stress have taken prescription medication to manage stress, nervousness, emotional problems, or lack of sleep.
• 28 percent have had an anxiety or panic attack.

What happens, however, when the thing inducing the stress and anxiety is the workplace itself? What are an employer’s obligations under the ADA to accommodate this mental health disorder?