From the archives: The Employer Bill of Rights

I recently came across an interesting blog, entitled, 10 Workplace Rights You Think You Have — But Still Don't. Written by plaintiff-side employment lawyer Donna Ballman, it suggests that employees have far fewer workplace protections than they might think, and rights like wrongful termination, free speech, and workplace privacy simply do not exist.

That post got me thinking about a post I wrote 7 years ago — The Employer Bill of Rights.

How many n-bombs does it take to create a hostile work environment?

Smelter v. Southern Home Care Services (11th Cir. 9/24/18) answers the question, "How many n-bombs does it take to create an unlawful hostile work environment?"

So as not to bury the lede, the answer is one.

Why the federal government's culture war against LGBTQ rights might not matter

You would do well to remember just how fluid is gender

"Second Wave Goodbye," War on Women

According to the New York Times, the Trump administration is poised to wage war on transgender rights.

The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth….

What you need to know about your office lottery pool

Late Friday afternoon (when the Mega Millions was only a mere billion dollars), I received a phone call from Brian Duffy, a reporter from our local CBS affiliate. "We are doing a story on office lottery pools. Are you the right person for me to interview about some of the legal risks?"

Two hours later, he was sitting in my living room with a cameraperson, interviewing me.

WIRTW #528 (the “paranoid” edition)

It's been a few months, but Fake ID was finally back on stage last weekend.


There's not much in life that makes me happier than seeing Norah perform.

Here's what I read this week:

Essential functions are judged by operational realities, not job descriptions

Tony Gunter worked as a press operator for Bemis, Inc., printing graphics for the outside of Huggies diapers. In January 2013, he injured his right shoulder on the job, continued to work for the next seven months, and ultimately opted for surgery when his ongoing physical therapy did not cure the injury.

He returned to his press operator job in December 2013 with temporary restrictions: no reaching with his right arm and no performing overhead work.

Timing of retaliation is key factor in reinstatement of employee's lawsuit

"See something, say something" is one of the most important elements of any workplace intent on stopping harassment. Employers are supposed to empower employees to report any harassment they witness, whether or not they are the target. Key to this idea is ensuring that employees who report harassment do not suffer retaliation as result. Retaliation of any kind will chill efforts of employees to say what they see.

With this background in mind, consider Donley v. Stryker Sales Corp. (7th Cir. 10/15/18) [pdf].

OSHA softens its hard line against workplace safety incentive programs and post-incident drug testing

It's been two years since OSHA announced its hard-line interpretation of its then newly announced anti-retaliation rules—that using incentive programs to penalize workers for reporting work-related injuries or illnesses, and that conducting post-incident drug testing without a reasonable possibility that employee drug use could have contributed to the reported injury or illness, constitutes unlawful retaliation under OSHA.

Last week, OSHA published a memo, which specifically clarifies that it "does not prohibit workplace safety incentive programs or post-incident drug testing." [emphasis in original]

What does this mean?

The 17th nominee for the “worst employer of 2018” is … the hedonistic harasser

Some call it horseplay. I call it sexual assault. And the 17th nominee for the Worst Employer of 2018.

Robert Smith worked behind the meat counter at Rosebud Farm, a small Chicago grocery store. It only took a few weeks after he started work for his male coworkers (including his direct supervisor) to start harassing him. They groped and grabbed his genital and buttocks. They reached down his pants. They repeatedly mimed oral and anal sex on him. And they did this for four years.

WIRTW #527 (the “Yeezy” edition)

There's a lot to say about Kanye's bizarre Oval Office meeting with President Trump.

But the most shocking? His iPhone password is "000000."

lmao Kanye's iPhone password is 000000 pic.twitter.com/mEM5Tjq0po

— Del Slappo (@misterjamo) October 11, 2018

Please, please, please, DO NOT DO WHAT KANYE DOES.

According to howsecureismypassword.net, Kanye's password can be cracked instantly. In other words, it's not a password at all.

You can read more about the importance of password security for you and your employees here.

Here's what else I read this week:

Make your business cyber-aware for National Cybersecurity Awareness Month

October is National Cybersecurity Awareness Month.

Let's see how good your cyber-awareness is.

Do you know the top method of cyber-attack?

#HimToo is a BAD bandwagon on which to jump in your workplace

since she deleted it here’s a screenshot. one of the greatest posts of all time pic.twitter.com/Z6TUKOjH9T

— KT NELSON (@KrangTNelson) October 8, 2018

#HimToo

A hashtag started as a reaction to #MeToo, put forth by those who believe that false accusations of rape and sexual assault against men are common and happen way too often.

Employers, #HimToo is dangerous to your workplace.

How does one measure the impact of #MeToo at its first anniversary?

It's been one year since the the New York Times reported allegations of sexual misconduct against Harvey Weinstein that started the #MeToo movement. Since, at least 425 prominent people across industries have been publicly accused of sexual misconduct.

The story, however, goes beyond the rich, and the famous, and the powerful. #MeToo has permeated every corner of our culture.

The EEOC just released its preliminary data on its handling of sexual harassment charges for its 2018 fiscal year—October 1, 2017, through September 30, 2018—a year that syncs almost too perfectly with the first year of #MeToo.

Court reminds that economic realities, not corporate formalities, govern independent contractor status

The distinction between independent contractors and employees continues to confound employers.

At issue in Acosta v. Jani-King of Oklahoma (10th Cir. 10/3/18) [pdf] is whether the Department of Labor could continue its FLSA claims on behalf of individuals who provide cleaning services as franchisees of a janitorial company. If the franchisees are independent contractors, then the FLSA does not coverthem. If, however, the company misclassified them as independent contractors, then the DOL has something to litigate.

WIRTW #526 (the “pumpkin” edition)

Pumpkin pie. Pumpkin spice. Pumpkin carving. Pumpkin festivals. Fall is officially the season of the pumpkin.

What are you doing Sunday, October 14? I'll be enjoying the return of Fake ID, as Norah and her bandmates take the stage from 11 – 1 at the Hiram House Camp Pumpkin Festival. They won't be hard to find on the property; just follow the music. Tickets are only $5 and are available here (kids under 12 are free).

Here's what I read this week:

Are you planning to take advantage of the IRS's employer tax credit for paid family and medical leave?

When Congress reformed the tax law earlier this year, one key change that might have flown under your radar is an employer tax credit for paid family and medical leave.

The IRS has a helpful Q&A available here.

EEOC sues Walmart for not hiring a congential amputee

The EEOC has sued Walmart on behalf of a woman who claims the retailer failed to hire her for a stocker job after it learned that she born without a right hand.

The Houston Chronicle has the details:

"I'm going to need every Saturday off; is that gonna be a problem?"

Darrell Patterson had worked in Walgreens' 24/7 call center for six years without incident. He claims Walgreens fired him for skipping an emergency training session held on a Saturday. He's a Seventh-day Adventist, and it's against his religion to work on the Sabbath (from sundown Friday through downs Saturday). Until his firing, they had worked cooperatively to schedule around this religious prohibitions, without incident.

Patterson's religion and Walgreens' scheduling came to a head in 2011, however, when Walgreens asked Patterson to cover an emergency Saturday training session. When he missed the training class, Walgreens fired him.

5 steps to take when an employee sues your company

I've written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company's HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It's the simple the cost of doing business.

WIRTW #525 (the “pogo” edition)

I have no idea if he managed to hit the right keys, but he's sure mastered the entertainment part of this rock 'n' roll thing.

View this post on Instagram

Donovan mastering the art of pogo keyboarding #sorcle

A post shared by Jon Hyman (@jonhyman) on Sep 23, 2018 at 4:47pm PDT

Here's what I read this week: