What a lawful "civility" policy looks like under the NLRB's Boeing test

Consider and compare the following workplace civility policies:

Commitment to My Co-Workers

• I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team.
• I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately.
• I will not complain about another team member and ask you not to as well. If I hear you doing so, I will ask you to talk to that person.
• I will be committed to finding solutions to problems rather than complaining about them or blaming someone for them, and ask you to do the same. 

-vs-

Blogging 

Blogging outside of the hospital must not include … disparaging comments about the hospital.

WIRTW #545 (the “International Women's Day” edition) #IWD2019

Happy International Women's Day!

I didn't always consider myself a feminist. But I'm proud to call myself one ever since May 27, 2006—the day my daughter was born.

It wasn't that I was hostile to the issue; I just never engaged in any active thought about it. Now that I have a female life for which I am responsible, I fully embrace the term.

As seen on Reddit: Salary discussion bans are a BIG legal no-no

AriesAviator posted the following question in the LegalAdvice subreddit:

Boss just threatened to fire me and another co-worker because we were discussing a raise we both got- what should I do?

We both got pulled into a group chat over the app our work uses, and the first message reads as follows;

Hey I don't want to here about your raises with the other crew members we talked about this before, other places have strict rules either termination or reversal of the raise this is not okay, Don't turn something we tried to do nice for you too into a pain for us.

Which, uh, what the fuck?

I'm pretty fucking sure everything in there is MASSIVELY illegal.

Emotional outbursts as ADA-protected disabilities

The term hysteria comes from the Greek word hysterika, meaning Uterus. In ancient Greece it was believed that a wandering and discontented Uterus was blamed for that dreaded female ailment of excessive emotion, hysteria. The disease's symptoms were believed to be dictated by where in the body the offending organ roamed. It was not religious belief but a social belief.

Hysteria
https://academic.mu.edu/meissnerd/hysteria.html

Less than two months after Jessica Mullen's hysterectomy, she applied for a position as a stitcher with athletic footwear manufacturer New Balance. Within the first few weeks of her employment, her was having difficulty mastering one of the stitching machines, which led to an abrupt and (maybe) heated exchange with her trainer, Julie Prentiss. During that exchange, Mullen became upset and began to cry. Prentiss placed Mullen in a time-out in the break room, and contacted two human resources managers, Frances Fisher and Rachel Merry.

The 7th nominee for the “worst employer of 2019” is … the disability debaser

The 7th nominee for the Worst Employer of 2019 is an employer that (allegedly) permitted a nearly year-long campaign to malign and harass an employee living with ADHD and Tourette's syndrome.

Harassment need not be "hellish" to be actionable

Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19) asks a question that we see time and again in harassment cases—how bad does does the conduct have to be to support a harassment claim. The answer is bad enough, but not so bad so as to be classified as "hellish."

WIRTW #544 (the “it's a shame” edition)

I love how my kid's school embraces their individuality and creativity. Back in the fall, my wife and I had a quick conversation with one of Norah's teachers about her music, which led to him suggesting that she bring her guitar to school to share a song at one of their Wednesday morning all-division meetings. After a few weather related false starts, Norah finally had her chance this week. She chose to play It's a Shame, by First Aid Kit.

I fully understand that I am a biased dad. But, I also think that my 12-year-old's cover of the song (recorded by one of her friends) was a home run. Here's the link if you want to listen.

Here's what I read this week:

The legalities of employee mass walkouts vs. the practicalities of avoiding them in the first place

Three central Ohio Sonic restaurants are without employees after their entire staffs walked off the job in protest against new management and its policies.

According to The Scioto Post, employees left a handwritten note on the door, reading in part, "Due to terrible management the whole store has quit. The company has been sold to people that don't give a f*uck about anyone but themselves."

A 💩 disability discrimination case

A call center employee, suffering from Crohn's Disease, asks his manager for some flexibility in the company's break schedules or other accommodations for his bathroom needs. Instead, his supervisor accuses him of stealing time and fires him.

Or at least that's what Nicolas Stover claims happened to him at a Kentucky Amazon call center.

What a morning at the BMV teaches about cybersecurity

I spent way too much of my Saturday morning at the local Bureau of Motor Vehicles (aka the Walmart of government agencies). "Why," you ask? Because my plates were on the verge of expiring, and I had forgotten to take advantage of the much preferable online registration process.

So there I found myself at 10 a.m. Saturday morning, waiting in line. To be fair, it was the "express" line, designated for license renewals only. My experience, however, was less than express, thanks to the patron two spots ahead of me in line.

You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

WIRTW #543 (the “terrible, horrible, no good, very bad day at the office” edition)

What was your worst day at work? Does it top the day that Cleveland criminal defense attorney Aaron Brockler had this past Tuesday?

I'll let Cleveland.com explain what happened:

A Warrensville Heights man shocked a courtroom full of spectators Tuesday when he sucker-punched his own defense attorney after a judge sentenced him to 45 years in prison…. Cuyahoga County sheriff's deputies took down David Chislton after the 42-year-old struck lawyer Aaron Brockler in the face with both of his handcuffed fists.

A courtroom deputy's body camera recorded the attack.


Brockler, who suffered injuries to his face and a possible concussion, at least kept his sense of humor, joking to reporters,"It was pretty fun."

File this one under why I don't practice criminal law.

Here's what I read this week:

If you want to stop workplace harassment, start by educating our children

How soon is too soon to start talking about harassment?

If we're talking about your workplace, the correct answer is that it's never too soon. You should start talking to your employees about your anti-harassment / anti-bullying / respectful workplace policies, expectations, and culture on Day One. A discussion should be part of each new hire's on-boarding and orientation.

What about outside of your workplace?

The 6th nominee for the “worst employer of 2019” is … the diverse discriminator

How many different ways can one employer discriminate? How about eight.

The EEOC recently settled a national origin and disability discrimination lawsuit against a staffing agency, brought on behalf of a group of Latino employees working at an Alabama poultry plant.

The FMLA does not require that an employee use magic words to request leave

According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that an FMLA event described has occurred, the employee has met his or her obligation to provide notice of a request for an FMLA-qualifying leave.

What does this look like in practice? Consider the following two examples.

Do you know how to spot an employee at risk for violence?

Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.

After the news of this tragedy broke, reports surfaced of Martin's history of violence—six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.

All of which begs the question, should this employer have known that Martin was prone to violence, and, if so, should it have taken added measures in connection with his termination.

WIRTW #542 (the “Scared. Ashamed. Crippled.” edition)

A few days ago, Mark Goldstein, an attorney at Reed Smith, tweeted me (and others) this:

 

If you read on thing this week, read Mark's article, 'Scared. Ashamed. Crippled.': How One Lawyer Overcame Living With Depression in Big Law. We are in the middle of a mental health crisis in America. The more we talk openly about it, the more it becomes de-stigmatized, and the more comfortable those suffering will be to come forward and seek the help they need. It took a lot of courage for Mark to write this article. If you are suffering with mental health issues, or know someone who is, use Mark's example to ask for help. As Mark says, "You are not alone." We are here to help you, and will gladly do so, without judgment or scorn. 

Here's what else I read this week:

When the rumor mill creates a sexually hostile work environment

Just in time for Valentine's Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn't, but the workplace rumor mill sure thought she was.

The way we work might be changing, but independent contractors risks are staying exactly the same

The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship. 

So starts the 6th Circuit's opinion in Acosta v. Off Duty Police Servs., which applies the traditional "economic realities" test to determine whether private security and traffic control officers are employees or independent contractors.

One would think that with such a pronouncement at the head of the 6th Circuit's opinion, the court would be making a startling pronouncement broadening the landscape of who qualifies as an independent contractor. Those making that assumption, however, are sorely mistaken.

A textbook lesson the ADA's interactive process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, "Of course." The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA's interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.