Brett Kavanaugh, Supreme Court Justice?

The pick is in. Brett Kavanaugh is President Trump's nominee to replace Justice Kennedy on the Supreme Court.

What type of Justice will Kavanaugh be? No one really knows for sure. All we can do is read his past appellate opinions, and hypothesize.

The opinion I'm offering for your consideration is Ayissi-Etoh v. Fannie Mae, a 2013 racial harassment case that asked the question of whether one isolated yet severe incident of discriminatory conduct — "Get out of my office n***er" — can suffice to establish a hostile work environment.

No, you can't require your employee to work during an FMLA leave

Today, I examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let's take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov't (W.D. Ky. 5/29/18).

WIRTW #513 (the “Murica” edition)

I've been reflecting this week about what it means to be American.

We used to welcome tired, poor, huddled masses, yearning to breathe free. Now we lock their children in cages.

We used to foster global democracy with our allies. Now we shun our allies and cozy up to those who seek to undermine democracy.

The 12th nominee for the “worst employer of 2018” is … the soulless supervisor

I did not intend to run back-to-back "worst employer" nominees. And then I received this reader submission (thanks Suzanne Lucas).

The headline says it all:

Manager fired after her callous texts with a mom whose son is on life support go viral

The 11th nominee for the “worst employer of 2018” is … the supervisor supremacist

Last week, I asked why anyone is still using the N-word.

Which brings us to today’s nominee for the Worst Employer of 2018, which apparently did not receive the “Thou shalt never use the N-word, ever!” memo.

WIRTW #512 (the “war pigs” edition)

I spent last Saturday night at Crocker Park, in Cleveland's western suburbs, watching Fake ID rock that luxury shopping mecca harder than I dare say it's ever been rocked before.

I could have watched Norah and her bandmates play all night long. I had to settle for an hour and 40 minutes of dad-pride.

Including this one—a scorching cover of Black Sabbath's classic, "War Pigs."


Here's what I read this week:

As our workforce ages, age discrimination is only going to worsen

Happy Golden Birthday, Age Discrimination in Employment Act.

On June 13, 2018, the ADEA turned 50.

To commemorate this milestone, the EEOC just released a report entitled The State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act (ADEA).

Court upholds Postal Service's termination of employee over fear of "going postal"

What do you do when you learn that an employee may pose a risk of violence to your workplace?

Does your opinion change if you learn this information on the eve of the employee returning from a leave of absence for depression or other mental illness?

Mitchell v. U.S. Postal Service (6th Cir. 6/21/18) answers these questions.

Netflix demonstrates it has zero-tolerance for the N-word

Netflix has fired one of its top executives for his use of the "n-word" at work.

 

According to The Hollywood Reporter, sources say that Jonathan Friedland, Netflix's (now former) chief communications officer allegedly used the n-word in a meeting with other Netflix staffers, in which they were discussing the use of sensitive words in public relations communications. Friedland then allegedly exacerbated the problem by again using that word during a meeting with two of the company's African-American HR employees counseling him on the original incident.

Keep an eye on this 8th Circuit LGBT-discrimiation case

The 8th Circuit Court of Appeals has been asked to decide if Title VII expressly protects gay, lesbian, and bisexual employees.

The case—Horton v. Midwest Geriatric Management—involves an individual who lost his conditional job offer after, he claims, the owners of the company discovered his sexual orientation.

The 8th Circuit will be the 5th federal circuit to rule on this issue.

WIRTW #511 (the “dads” edition)

Since we just celebrated Father’s Day, I thought I’d use this space to highlight some of the best posts I read this past week about working dads:

• For Working Dads, Workflex Works — via Next Blog
• Why Workplaces Need to Be Fairer to Working Dads — via Harvard Business Review
• Five fun facts about fathers (in the workplace) — via Robin Shea’s Employment & Labor Insider
• Fathers Day offers a chance to ponder the disadvantages faced by many working dads — via Insight
• 2018’s Best & Worst States for Working Dads — via WalletHub
• Stay-At-Home Dads Still Struggle With Diapers, Drool, Stigma And Isolation — via NPR

As for my dad, he received a new fanny pack (I understand they are very much back in style; thanks, Amazon Prime, for delivering the gift four days late).

Here’s what else I read this week:

Should we require drug testing as a condition for unemployment benefits?

This is the question posed by Ohio House Bill 704.

Let's be clear. This law, if enacted, would not require drug testing as a condition for all applicants for unemployment benefits. Only those—

1. for whom there exists reasonable cause to suspect the unlawful use of a controlled substance; and 
2. whose most recent employer fired because of the unlawful use of a controlled substance.

EEOC sees no #MeToo uptick in harassment filings, but…

Earlier this month, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace. One fact that came out of the agency’s meeting is that, according to Acting EEOC Chair Victoria Lipnic, the EEOC has yet to see an increase in sexual harassment charges in response to the #MeToo movement.

I do want to mention one other point that we have been frequently asked here at the EEOC - and that is - “have you seen an uptick in charges filed alleging harassment?” - sometimes, people ask, specifically about sexual harassment charges being filed with the agency?

Sometimes a cigar is just a cigar, and sometimes your employees make porn at work

Employees lose their jobs for lots of reason.

Including (allegedly) filming porn at work.

“Incredibles 2” is an incredible movie about working parenthood

Being a working parent is all about sacrifice. Not always being there for the small stuff. It might mean missing your daughter’s first date. Or not helping your son figure out his math homework. Or not experiencing your baby’s first word (or exhibition of superpowers).

For Elastagirl (aka Mrs. Incredible, aka Helen Parr) it means all of these things.

WIRTW #510 (the “communication breakdown” edition)

“Best Band I’ve ever heard!”
“You kids Rocked best band I’ve seen in long time. I would pay to see Fake ID again WOW”
“Could of listened to u all day. VERY IMPRESSED!”
“I was blown away by your talent! Very impressive!”

These are just a few of the comments made by folks who saw Fake ID play a killer hour-long set over the Memorial Day weekend at Ohio Bike Week. (I agree with all of the above comments, but I’m also a bit biased.)

If you are looking for something to do next Saturday evening, head to Crocker Park, in Cleveland’s western burbs, and check out Fake ID, which will be playing a free show from 5:30 – 7. They’ll be rocking the square in front of the Regal Cinema.

Here’s a taste of what you’ll see, from Ohio Bike Week.


Here’s what I read this week:

The 10th nominee for the “worst employer of 2018” is … the whitewasher

White only

If I told you that an employee hung this sign inside his workplace, you might think I was talking about 1950’s Mississippi.

I’m not. It’s 2018 Sacramento, California.

That alone would be enough to earn this employer (Vivint Solar) a nomination as the worst employer of 2018, but it’s just the tip of the racist iceberg.

Is technology the answer to your employees’ mental health problems?

The world was rocked last week, first by the suicide of Kate Spade and then by that of Anthony Bourdain. American suicide rates have skyrocketed, up 30 percent since 1999, emblematic of the larger mental-health epidemic we are facing.

Many point to the isolationism and perfection seeking created by our personal technology devices (and the social media they feed to us) as one the main causes of this epidemic.

But what if the analytical power of these devices could actually alert us to mood changes and create an earlier awareness of an impending personal mental-health crisis?

The legality of pre-certification communications with potential class members

Your nightmare as an employer has just become your reality.

A disgruntled former employee has launched a wage and hour class action lawsuit against you.

You’d like to get out ahead of the game by having your lawyers start marshaling your evidence. For example, they’d like to interview employees and gather affidavits in opposition to the eventual motion for class certification.

But can they?

NLRB clarifies its new employee handbook rules

Late last year, in Boeing Co., the NLRB rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

The Board scrapped Lutheran Heritage‘s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).”