Federal appeals court orders NLRB to determine whether workplace harassment laws trump the National Labor Relations Act

You might recall Constellium Rolled Products Ravenswood, a 2018 NLRB case in which the Board held that offensive graffiti scrawled on an employee’s timesheet (“whore board”) constituted a lawful exercise of protected concerted activity.

Recently, the D.C. Circuit Court of Appeals held that the NLRB shirked its responsibility by not considering addressing any alleged conflict between its interpretation of the NLRA and the Company’s obligations under state and federal equal employment opportunity laws to maintain a harassment-free workplace.

The 1st nominee for the “worst employer of 2020” is … the repeat, repeat offender

If there’s a better way of starting 2020 than with the first nominee for the year’s worst employer, I’m not sure what it is.

Meet Dru DiSilvestro, the manager at an electrical contractor in Elmer, NJ, accused of sexually harassing Kimberly North, a 23-year-old employee, while in the midst of litigation brought by another employee accusing DiSilvestro of flashing his penis and leaving a dildo on her desk. And that wasn’t even the first lawsuit accusing DiSilvestro of harassment. His employer settled another even earlier suit accusing him of sexually crude language.

’Twas the Employment Law Night Before Christmas

In what will become an annual tradition for my last post of the year, I bring you the holiday classic, ’Twas the Employment Law Night before Christmas.

To all of my readers, thank you for a great 2019.
I’ll see everyone on January 6, 2020, with fresh content to kick off the new year.

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’Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

WIRTW #581 (the “home invasion” edition)

“A Day in the Life,” by (Not) The Beatles

Woke up, fell out of bed
Dragged a Bic across my head
Found my way downstairs to make a cup
And looking up I noticed…
there were three elderly Asian people in my kitchen!

This actually happened to me Monday morning. And technically, it was two elderly Asian people in my kitchen and one in my bathroom. 

I had accidentally left the garage door open the night before, and they had accidentally wandered into the wrong house. After a lot of dog barking, and yelling, and confusion, they wandered out into the early morning darkness. I have no idea who they were, where they came from, or where they went. It was most definitely the strangest morning of my life, and maybe the strangest home invasion of all time.

Here’s what I read this week.

NLRB rolls back 2 key Obama era anti-management decisions

This week, the National Labor Relations Board decided two cases that rolled back key Obama era anti-management NLRB decisions.

• Apogee Retail LLC d/b/a Unique Thrift Store, which overturned Banner Estrella Medical Center and held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful.

• Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, which overturned Purple Communications and held that an employer can lawfully restrict employee use of its email system as long as it does so on a nondiscriminatory basis.

The Worst Employer of 2019 is…

After a year of gathering 20 very worthy nominees, whittling it down to 10 awful finalists, and compiling hundreds upon hundreds of your votes, today is the day to declare the Worst Employer of 2019.

While all of the year’s nominees were worthy adversaries, the winner truly stood head and shoulders above the competition. But, before naming the winner, let’s count down the non-winners.

Don’t forget to vote: Polls close at 11 pm tonight for the Worst Employer of 2019

If you haven’t yet voted for the Worst Employer of 2019, time is running out. Polls close at 11 pm tonight.

VOTE here

And come back tomorrow when I’ll announce the very worthy winner.

Do you know when you can collect employees’ genetic information?

Apple recently announced it will begin offering its employees free genetic testing through its subsidiary, AC Wellness (an entity Apple created last year to provide primary care services exclusively to its employees and their dependents).

According to CNBC, Apple is trying to move health care at its employee clinics “from reactive to proactive, as genetic tests can offer a window into health risks down the line. In some cases, patients can take preventative steps to reduce their likelihood of getting a disease.”

Medical experts have also speculated that this program could help Apple quietly test new products or ideas without risking leaks. And this is where my employment law Spidey sense starts tingling.

Court finds that the ADA does not protect employee’s dormant genetic condition

Sherryl Darby has the BRCA1 gene, otherwise known as the breast cancer gene, the best known gene associated with breast-cancer risk. Approximately two months after she started working as an administrative assistant at Childvine, an early childcare provider, Darby opted to have a double mastectomy to decrease her risk of developing breast cancer in the future. Two weeks later, Childvine fired her.

Despite the close-in-time link between Darby’s surgery and her termination, the district court dismissed her ADA lawsuit.

WIRTW #580 (the “I voted” edition)

Have you cast your ballot for the Worst Employer of 2019? Time is running short. The polls close Tuesday, December 17, at 11 pm.

VOTE here

Once you’ve voted, please download your official Ohio Employer Law Blog “I voted for the Worst Employer of 2019” badge and share on Facebook, Instagram, Twitter, LinkedIn, etc. Please tag your post with #worstemployer2019 so that I can more easily find it and feel the love.

And don’t forget to return on December 18 when I’ll announce this year’s big winner (or loser, depending on how you look at it).

Here’s what I read this week.

Just because you’re out on FMLA does not grant you a license to threaten your co-workers

“Hey pussy … I’m going to get you for what you did.”

Ordinarily, if one employee confronts another employee with a threat like the one above, you’d consider it grounds for termination. Maurice Darby, however, claimed that the fact that he made the threat while out on FMLA leave constituted grounds for retaliation after his employer terminated him.

The 4 things you cannot do to pro-union employees (hint: number 1 is fire them)

Four former Google employees claim that their ex-employer fired them Thanksgiving week in retaliation for their efforts to organize a labor union. According to CNBC, the NLRB is now investigating the firings. For its part, Google denies that anti-union animus played any roll in the firings.

We dismissed four individuals who were engaged in intentional and often repeated violations of our longstanding data security policies, including systematically accessing and disseminating other employees’ materials and work. No one has been dismissed for raising concerns or debating the company’s activities.

VOTE NOW for the “Worst Employer of 2019” — polls are open

All year long, I’ve been sharing examples of the worst employers in America. My goal? Compile them at the end of the year and then turn it over to you, my readers, to pick the worst of the worst.

Today is your opportunity to help pick the Worst Employer of 2019.

I’ve narrowed this year’s preliminary list down to my choice for the top 10 naughty employers.

Voting will take from today until December 17, at 11 pm. You will be able to vote for up to 3 choices.

I will then tally the votes, and, announce the highest recipient as the very worthy winner of the Worst Employer of 2019.

Vote, share this post with your friends, colleagues, and social networks, and, most importantly, learn something from the mistakes of these 10 very worthy, and cringy, nominees.

The ADA never requires an employer to create a position as a reasonable accommodation

Randona Johnson took a medical leave from his position as a process coach at a Ford assembly plant to deal with back pain, hypertension, and depression. After five months of leave, Ford moved Johnson to inactive status, with no active position at the plant. Two months later, Johnson reapplied for his old job and requested certain accommodations for his various disabilities. According to Ford, however, the assembly plant had no openings at that time, as was the case each time over the next several months Johnson reapplied. Ultimately, 15 months after Johnson first took medical leave, and eight months after he first re-applied, a position opened and Ford rehired him with his requested accommodations.

Johnson sued anyway, claiming in failing to rehire him earlier Ford unlawfully denied him a reasonable accommodation.

WIRTW #579 (the “blank slate” edition)

Next Saturday, December 14, Norah and her Fake ID bandmates will be traveling west to Elyria, Ohio, to play Blank Slate, a very cool all ages, all inclusive, and substance free club. Tickets are only $5 if you buy them in advance (here) or $7 at the door.

Here’s what I read this week.

Discrimination

• Sex and the CEO — via Jonathan HR Law
• Stuffing Discrimination Complaints Into Thanksgiving? Feast on these Cases — via Dan Schwartz’s Connecticut Employment Law Blog
• There’s retaliation, and then there’s locking the complainant in a walk-in freezer. (Allegedly) — via Eric Meyer’s Employer Handbook Blog
• Ohio Fairness Act Takes Important First Step in Ohio House Committee — via Ohio Chamber Blog
• LGBTQ Rights in Employment: Does it Boil Down to the “Bathroom Use” Question Again? — via BeLabor The Point

HR & Employee Relations

• Can Music Increase Your Workplace Productivity? — via HR Gazette
• It’s Perfectly Legal to be an Asshole. — via HR Examiner with John Sumser
• How harmful thought patterns about workplace bullying and mobbing may accelerate the aging process — via Minding the Workplace
• Going Back to Work After a Pregnancy Loss — via Harvard Business Review
• How do I talk to my coworker about her body odor? — via Ask a Manager

Technology

• Facebook built a facial recognition app that identified employees — via Engadget HD
• Shaping Better Workplaces Through Social Media Screening — via Workology
• Cybersecurity in the Age of AI and Why Cybersecurity Isn’t Only a Tech Problem — via Harvard Business Review 
• An Alarming Number of Software Teams Are Missing Cybersecurity Expertise — via Dark Reading
• Seeking Insurance for Cybersecurity-Related Losses — via The D & O Diary

Wage & Hour

• Big Media Finds out that Salary Secrecy is Dead. Spreadsheets Share Everything — via Evil HR Lady, Suzanne Lucas
• Compliance with FLSA Overtime Rule Changes 2020 — via Staffing Industry Analysts
• 11th Cir.: Arbitration Clause Requiring Fee/Cost Splitting Violates the FLSA — via Overtime Law Blog

Labor

• Fired Google Employees Vow Federal Labor Complaint — via Forbes
• The NLRB Rules that Unpaid Interns Are Not Employees Under the Act — via Hunton Employment & Labor Law Perspectives™
• NLRB’s LA Specialty Produce Decision Provides More Clarity on Employee Handbook Rule Standards — via Employment Law Worldview
• Buttigieg campaign staffers join union — via CUE, Inc.

OSHA & Safety

• Workers sue McDonald’s over workplace violence — via HR Dive
• McDonalds to Train Store Employees on Mitigating & Identifying Violence — via Blogging4Jobs
• Attorney Mental Health: ‘Thanksgiving’ Isn’t Just a Holiday — via Law.com - In-House Counsel
• Erasing the Workplace Stigma of Behavioral Health Conditions — via EntertainHR
• Fifth Circuit Provides New Grounds for Employers to Pursue Late Notices of Contest to OSHA Citations — via Workplace Safety and Environmental Law Alert Blog
• How to Take Advantage of OSHA’s ‘Employee Misconduct’ Defense — via HR Hero Line
• OSHA Signals Its Regulatory Priorities in Fall Agenda — via OSHA Law Blog
• No Medical Marijuana in Ohio BWC’s Drug-Free Workplace — via Labor & Employment Law Navigator

Does it violate the ADA to work an employee in excess of a work restriction?

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center. In 2012, she injured her back outside of work, and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Do you know how to calculate the “regular rate of pay” for your employees? (hint: probably not)

The Fair Labor Standards Act requires that employers pay their non-exempt employees one and one-half times the “regular rate of pay” for any hours worked in excess of 40 in any work week. For an employee paid a straight hourly rate, this calculation is simple and straight forward. A $10 per hour employee earns an overtime rate of $15 per overtime hour. Easy peasy.

Often times, however, employees aren’t just paid a straight hourly rate. Uh oh.

The 20th nominee for the “worst employer of 2019” is … the malignant mogul

The 20th (and final) nominee for the Worst Employer of 2019 is Alki David, heir to the Coca-Cola bottling fortune and owner of several media firms.

The evidence?

This week, a jury awarded over $58 million to a female employee who accused him of thrusting his pelvis into her face, simulating oral sex, moaning, and zipping up his pants and walking away saying, “Thanks, M.K.”

As sure as today is Cyber Monday, your employees are shopping from work

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $9.4 billion in sales.

And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

WIRTW #578 (the “credibility” edition)

Yesterday, the NFL upheld the indefinite suspension of Cleveland Browns’ defensive lineman Myles Garrett, who last week assaulted Pittsburgh Steelers’ quarterback Mason Rudolph on the field with his helmet.

At his suspension hearing, Garrett attempted to mitigate his misconduct by claiming that Rudolph had used a racial slur on the field.

Garrett’s problem? It was the first time he had raised that claim in the week following the incident. He didn’t raise it on the field. Or after the game. Or to the media. Or at any time prior to his hearing. Even his teammates were caught off guard by the claim. And that’s a huge problem for the credibility of his defense.

In harassment cases, credibility is everything. And if employee waits until a trial or hearing to raise a claim of harassment, his (or her) credibility, as well as their claim, is shot.

Here’s what I read this week.