H.B. 352 finally fixes Ohio’s broken employment discrimination statute for employers

For lack of more artful description, Ohio's employment discrimination law was a mess. It exposed employers to claims for up to six years (the longest such statute of limitations in the country), contained no less than three different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), rendered managers and supervisors personally liable for discrimination, and omitted any filing prerequisites with the state civil rights agency.

The start of 2021, however, provides Ohio businesses much-needed reform of this previously broken law. Earlier this week, Governor DeWine signed House Bill 352 [pdf]. 

Github fires employee for using the n-word … Nazi

Software company GitHub is taking a lot of heat for firing a Jewish employee for referring to the people who stormed the Capitol on January 6 as "Nazis." The Verge has the details:

GitHub reportedly fired a Jewish employee after he posted a message in Slack that said "stay safe homies, Nazis are about" the day of the attack on the US Capitol….

The message sparked controversy inside the company, with one colleague criticizing him for using divisive language. GitHub's HR team chastised the employee for using the word "Nazi" in a company Slack channel. Two days later, GitHub allegedly fired him, citing vague patterns of behavior. 

Coronavirus Update 1-12-2021: 8 of the 10 deadliest days in US history are because of Covid

While we've all been mentally overcome by the rebellion that unfolded at the Capitol and the civil war that I fear it started, Covid-19 continues to rage around the country. Hundreds of thousands are falling ill each day, hospitals are stretched to capacity, and thousands are dying daily. The circle of people with Covid is closing in personally, and the number of calls I am receiving from clients with the question, "We've had an employee test positive; what do we do," has increased exponentially. All the while, the rollout of the vaccine, which was supposed to save us from this pandemic, has been too slow and uneven. 

The bottom line is that Covid-19 continues to win. 

“Beware systemic discrimination,” says EEOC to employers

Systemic discrimination has multiple meanings, according to the EEOC:

• A "pattern or practice, policy, and/or class cases where the discrimination has a broad impact on an industry, profession, company, or geographic location."
• "Bias that is built into systems, originating in the way work is organized," referring to "structures that shape the work environment or employment prospects differently for different types of workers."
• "Patterns of behavior that develop within organizations that disadvantage certain employees and become harmful to productivity."

Regardless of you define it, in a report published last Friday, the EEOC says that it pursuing systemic discrimination as an enforcement priority to dismantle the pattern, practice, or policy that results in or facilitates discriminatory decisions.

When you discover that you employ a seditious rebel #TraitorsGettingFired

Imagine you discover that Elizabeth from Knoxville is one of your employees.

Elizabeth wasn’t ready for the revolution to be televised😂 pic.twitter.com/LibeNAuE6h

— xy467chr (@xy467chr) January 6, 2021

Or what about Jake Angeli (the self-proclaimed QAnon shamen)?

Why is Jake Angeli walking free? If he can be named in this article, and he was part of the insurrectionist movement yesterday, he committed a crime by invading the Capitol and he should be arrested. https://t.co/5hUbek57nc

— Dr. HawaiiDelilah™ (@HawaiiDelilah) January 7, 2021

Or Paul Davis?

This is Paul Davis. Paul is a lawyer. He’s also associate general counsel & director of human resources at Goosehead Insurance. Today he stormed the capitol building in an attempt to stage a coup against the US government and documented it (!) on Instagram. @followgoosehead pic.twitter.com/eTkoK92ujL

— Roger Sollenberger (@SollenbergerRC) January 7, 2021

Or this guy, who actually wore his work badge to the protest?

NEW: A Maryland company has terminated one of its employees after he was apparently captured in a picture during the mob riot in the Capitol yesterday. @wbaltv11 pic.twitter.com/flxRhdmP3P

— Tre Ward (@TreWardWBAL) January 7, 2021

Or any of the others amid the hoard of seditious rebels who stormed the Capitol on Wednesday in an act of open rebellion against the United States and its government?

Question: Should these people be fired from their jobs?

I’m pretty far from okay

I’m not okay with what happened yesterday. I’m angry, I’m sad, and I’m scared for the future of our country and our democracy. 

A seditious insurrection stormed the Capitol in an attempted coup designed the stop the peaceful transfer of power and overthrow our democracy. Nothing about this is acceptable. It’s abjectly deplorable and antithetical to everything for which our country stands.

Nobody should be okay with what happened yesterday.

If you don’t reject what happened without reservation or qualification, please unfollow me. 

I’m not in Kansas anymore … or ever (an unemployment fraud story)

What's wrong with this photo?

The 1st nominee for the “Worst Employer of 2021" is … the bogus bonus payor

We all felt for Clark Griswold when, instead of his expected year-end bonus, he received a one-year membership to the Jelly of the Month Club (the gift that keeps on giving the whole year). 

Think about Clark's outrage when you read this story, which recently made the rounds (c/o The Verge):

What's the cruelest prank you can make on employees who are struggling during a pandemic when millions of people have lost their jobs or lives? GoDaddy … tried to find out when it sent employees a fake email informing them they'd receive a $650 holiday bonus. …

Coronavirus Update 1-4-2021: DOL approves telemedicine visits to establish a serious health condition under the FMLA

With the COVID-19 pandemic closing health-care-provider offices or severely limiting patient access, many have turned to telehealth to remotely obtain healthcare from the safety of their homes. The question arose, however, whether these remote visits would qualify as "treatment" under the FMLA's qualifying definition of a "serious health condition," which under the FMLA's regulations requires an "in-person visit to a health care provider," and does not include "a phone call, letter, email, or text message."

While you were celebrating your December holidays, the Department of Labor issued a Field Assistance Bulletin [pdf] addressing this issue. 

’Twas the Employment Law Night Before Christmas

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

To all of my readers, after a 2020 no one will ever forget, thank you all for reading, commenting, and sharing, and please have a happy and safe holiday season. I’ll see everyone on January 4, 2021, with fresh content to kick off the new year.

---

’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.

Coronavirus Update 12-22-2020: Congress approves an FFCRA extension (sort of)

Late yesterday, Congress approved the Consolidated Appropriations Act, 2021, better known as its $900 billion COVID-19 rescue stimulus. President Trump is expected to sign it into law.

Buried within the bill's 5593 pages (on pages 2033 - 2037) is an extension of tax credits for paid sick and family leave under the Families First Coronavirus Response Act, which otherwise would have expired on December 31.

Worst Employer(s) of 2020: The Winners

It brings me tremendous joy to announce the Worst Employer(s) of 2020.

Coronavirus Update 12-21-2020: Ensuring compliance with your Covid safety protocols shouldn’t be a mission impossible

British newspaper The Sun published leaked audio capturing Tom Cruise angrily addressing two crew members who he believed had breached Covid-19 protocols while filming "Mission Impossible 7."

The best way to spread Christmas cheer is singing loud for all to hear

In his semi-eponymous movie, Buddy the Elf famously explained, "The best way to spread Christmas cheer is singing loud for all to hear." 

Today, I'm choosing to use my valuable internet space to spread some Christmas cheer of my own. Please don't worry, it's not me singing, which would spread whatever the opposite of cheer is. Instead, it's my resident songstress, Norah Marie, who used her iPhone to self-record and mix this lovely (IMHO) cover of "Jingle Bell Rock."

norah marie · jingle bell rock

Coronavirus Update 12-17-2020, part 2: The COVID-19 vaccine and race discrimination

One issue the EEOC omitted from its technical guidance on the COVID-19 vaccine is the issue of race discrimination. 

According to one recent study, 57% of African Americans say that they definitely or probably will not get the COVID-19 vaccine. Many point to their distrust of the federal government fueled by decades of medical studies on Black people, including the Tuskegee Experiment, which left hundreds of Black men untreated for syphilis between 1932 and 1972.

If you are going to adopt a mandatory vaccination policy for your workplace (which the EEOC says you can do, subject to reasonable accommodation exceptions under the ADA for medical issues and Title VII for sincerely held religious beliefs or observances), then you must account for the possibility of that policy having a disparate impact based on race. Otherwise, you might be setting yourself up for a potential race discrimination lawsuit.

* Photo by Markus Winkler on Unsplash

Coronavirus Update 12-17-2020: EEOC releases guidance on the COVID-19 vaccine

Yesterday, the EEOC published its guidance on the COVID-19 vaccine under the ADA and GINA, in the form of nine Q & As. You can read them in their totality here. 

The TL;DR: yes, you can force employees to receive the COVID-19 vaccine as a condition of employment (although the should is an entirely different issue), subject to limits on reasonable accommodations for employees' disabilities and sincerely held religious practices or beliefs and subject to limits on pre-vaccination medical questions.

My one work rule to rule them all

George Carlin was a genius. He just had a way of breaking down language into its most simple parts. Whether it was The 7 Dirty Words or The 10 Commandments, Carlin was just brilliant with language. For example, he dismantled each of the 10 Commandments into just two:

First:

• Thou shalt always be honest and faithful, especially to the provider of thy nookie.

And second:

• Thou shalt try real hard not to kill anyone, unless, of course, they pray to a different invisible man than the one you pray to.

I thought of this yesterday after stumbling upon a tweetstorm authored by Kate Bischoff reacting to this New York Times article suggesting that Jeffrey Toobin's long and esteemed career justifies that he should get his job back despite his Zoom full monty faux pas. 

Coronavirus Update 12-15-2020: Don’t be this a-hole

According to Cleveland.com, a pair of Ohio parents are facing possible criminal charges after piling 60 maskless teenagers into a party bus to celebrate their son's 14th birthday.

Police learned a parent had arranged for the party bus, which originated in Cincinnati…. The parent had posted an open invitation on social media, police say.

If you’re tired of reading about the Worst Employer voting, you can now listen to me talk about it

Marc Alifanz and Kate Bischoff are two of my favorite people. They also happen to host one of my favorite podcasts, Hostile Work Environment. I promise that I'm not just dishing out these high praises because Marc and Kate invited me to guest on this week's episode to discuss the 10 nominees for this year's Worst Employer poll. 

You can listen to the episode on Apple Podcasts, Spotify, or wherever you choose to get your podcasts. (And while you're there do us all a favor and click that subscribe button if you already haven't.)

Coronavirus Update 12-11-2020: Food insecurity

One of the great tragedies of the COVID-19 pandemic is the number of Americans who are without enough food to eat. It is estimated that nearly 1 out of every 4 households have experienced food insecurity at some point in 2020 (up from 1 out of 10 in 2019). That's an additional 20 million households, or 52.5 Americans, who at some point this year were or continue to be unable to acquire enough food to meet their basic needs or were uncertain of where their next meal will come from. Tens of millions of our fellow Americans are going hungry because of COVID-19.

On Sunday, December 20, at 6 pm, my daughter will be playing an online gig in support of the Hunger Network. The gig is part of this month's 48 Hour Virtual Music Fest, a local monthly online concert series that supports a different cause each month. This month's Fest is in conjunction with WJCU's Blizzard Bash, an annual event put on by John Carroll University's radio station, which this year is being held virtually.