There’s nothing illegal about paying employees a “day rate,” as long as you also pay an overtime premium for overtime hours

Here's how the president of Fusion Japanese Steakhouse describes the manner in which his company (unlawfully) pays its kitchen staff:

I pay a teriyaki chef $120 per day. He worked ten hours—ten hours a day. So here’s how to calculate it. He works ten hours a day at $120 a day. I divide it by hours, and it’s $10.97 per hour. If he works overtime, it will be $16.20 overtime pay. So $120 a day, I have it covered because it was way past—way beyond $7.25 minimum wage rate. So I take consideration of the industry standard, you know. So either it is for teriyaki chef, it is $120 or $120 per day.

In other words, as the court correctly surmised in Walsh v. Fusion Japanese Steakhouse, the employer "works backward to calculate the hourly rate of the employees based on the day rate." That backward calculation, however, to jerry-rig an hourly rate plus and overtime rate to arrive at the agreed-upon day rate, is not legal.

The 10th nominee for the “Worst Employer of 2021” is … the transphobic terminator

Kimberly Grinage was born male but identifies as a transgender woman. That fact presented a huge problem for her during her employment at an Extended Stay America property, as she alleges in her lawsuit. She claims that her Christian manager fired her specifically because he did not want a transgender woman working for him.

Coronavirus Update 7–13–2021: The 3 reasons why it matters that you get vaccinated (even if I’m vaccinated)

"If you're vaccinated, and the vaccines work, why do you care if I get vaccinated? Let me live my life. My body, my choice." This sentiment echoes a popular refrain of those who are anti-vax or otherwise not getting the Covid vaccine.

It's also very, very wrong. Here are the top three reasons that it matters that you get vaccinated (even if I'm vaccinated).  

You don’t need to wait for President Biden to fix what’s wrong with non-compete agreements

On Friday, President Biden signed an Executive Order on Promoting Competition in the American Economy. According to the Order, its goal is to promote a "fair, open, and competitive marketplace" and "the welfare of workers, farmers, small businesses, startups, and consumers" through the elimination or limitation of "excessive market concentration," which "threatens basic economic liberties, democratic accountability." One of the President's targets is "companies [that] require workers to sign non-compete agreements that restrict their ability to change jobs." Indeed, according to the President, half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.

Thus, President Biden ordered "the Chair of the FTC … to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility."

WorldatWork’s Work in Progress podcast—Episode 118: A Conversation with Employment/Labor Attorney Jon Hyman

This week marks my record-setting third appearance on WorkatWork's Work in Progress podcast. Tune in to listen to me talk about employer vaccination policies, transgender bathroom rights, workplace drug testing, and an assortment of other controversial issues in between. We also started our conversation with a bonus chat on the latest RRHOF inductees. Which one am I most excited about? You'll have to listen to find out.

A huge thank you to Charles Epstein and Tom Alexander for inviting me back on. Tom, I'm anxiously awaiting receipt of a Popeye's chicken sandwich as my "three-timer" award. I'm just hoping it's delivered in the form of a value-appropriate gift card and not an actual sandwich. 

You can listen below, or wherever you get your podcasts.

Religious accommodations shouldn’t flummox employers, yet they still do

I've shared this story before, but it's worth re-sharing because (a) it's been a few years and I have many new readers, (b) it's really good, and (c) because it's super relevant to today's lesson.

I spent a high-school summer working on a warehouse loading dock. One of my co-workers was named Harland Jester. (I provide his name because he named his son "Court," and this context provides the necessary color for the rest of the story.)

Four days into my summer job, a co-worker pulled me aside and asked, "Did Harland get a hold of you yet?"

ABA President fixes the victim-blaming problem the ABA Journal created for working moms

Yesterday, I was highly critical of the ABA Journal for publishing a column that victim-blamed working moms for their lack of advancement in the legal profession. Then, ABA President Patricia Lee Refo did what she could to fix the injustice created by the journal of the organization she runs.

In her own column—Women's success in legal careers: Lack of advancement is not a 'woman' problem, it’s a 'profession' problem—Refo took apart the notion that female attorneys are to blame for their lack of upward mobility. They have not failed, Refo correct argues, their employers have failed them.

The American Bar Association must never again victim-blame working-parent attorneys for the discrimination they suffer

The ABA Journal recently published a column by
Susan Smith Blakely, a career counselor and former law-firm partner, that does a gross injustice to every law-firm working parent. 

Her piece, titled, Are women lawyers paying enough attention to upward mobility?, argues that women lawyers are responsible for the limited opportunities their employers have fostered upon them. By focusing on family instead of firm, she argues that they have chosen their priority and should not complain when career advancement passes them by.

Coronavirus Update 6–30–2021: Because of your vaccine hesitancy, COVID-19 is here to stay

Last week I asked you, my readers, for your creative ideas to incentivize more people to get vaccinated. 

Your thoughts—

Transgender bathroom access remains a solution in search of a problem

Yesterday, the Supreme Court declined to hear the appeal of a school district challenging the right of a transgender student to use the bathroom that corresponded to his gender identity, leaving in place the landmark 4th Circuit opinion holding that transgender bathroom restrictions constitute illegal sex discrimination.

This decision falls in line with the EEOC's recent statement on this issue for employers.

Coronavirus Update 6-28-2021: Television meteorologist April Moss correctly fired for on-air rant against employer’s Covid policies

WWJ CBS Detroit fired meteorologist April Moss after objecting on-air against her employer's COVID-19 policies. Moss paused her Father's Day weather forecast to say, "And speaking of a brand new week, I will be sitting down this week with Project Veritas to discuss the discrimination that CBS is enforcing on its employees. Tune in to Project Veritas for my full story." (Project Veritas is a controversial far-right activist group that uses hidden camera footage to attack its targets.)

Coronavirus Update 6-25-2021: Post-Covid pet-friendly workplaces?

"Does returning to the office mean bringing pets to work?" is a question that recently caught my eye as I was scrolling through my feed on LinkedIn (thanks David Miklas).

What the heck do we do with our pets as we return to the office? If Loula and Dante could talk, they'd tell you, "Pleeeeeeeeeeeeeeeeeeeeeease don't take my parents away; we've gotten so used to having them at home with us every single day." 

For this reason, and as an enticement to get people back to the office, some businesses are considering going pet-friendly and opening their space to employees' four-legged companions.

Are you thinking about opening up your business to employees' pets? 

Coronavirus Update 6-24-2021: Crowdsourcing new ideas on how to get more people vaccinated

• State-sponsored vaccine lotteries.
• Relaxed or eliminated mitigation rules for the fully vaccinated.
• Paid time off for vaccines and side effects.
• Gift cards and other monetary incentives.

Governments and employers seemingly have tried everything to get as many people vaccinated as quickly as possible.

Yet, we are failing. 

Coronavirus Update 6-23-2021: We now live a Covid-bifurcated society — the vaccinated and the will-get-sick

I spent last weekend visiting my parents in Philadelphia. Because of the pandemic we had not seen them in 20(!) months. It was a glorious five-day visit.

During our trip to Philly we mixed in a visit to Donovan's cardiologist (whom he had also not seen in 20 months). We learned two things from that appointment. 

First, Donovan's (formerly) narrow pulmonary valve responded amazingly to his October 2019 procedure. 

Secondly, Covid is still spreading like wildfire among the unvaccinated, even kids. We learned that pediatric ICUs are full of unvaccinated children with serious and dangerous COVID-19 infections. According to Donovan's cardiologist, "It is now painfully clear that you will either get vaccinated or you will get COVID."

Further proof of our Covid-bifurcated society? Consider the Manatee County, Florida, IT Department, which was just ravaged by a COVID-19 outbreak. According to CNN, of the six people infected, five were hospitalized and two died. They were all unvaccinated. The only exposed employee who did not get infected happened to be the only vaccinated employee.

Coronavirus Update 6-22-2021: Workplace things Covid has not changed—you can still fire dishonest employees

Suppose an employee leaves work claiming Covid-like symptoms. He then calls off work for the next two weeks, claiming he is quarantining at home at his doctor's recommendation. Can you fire the employee during that quarantine period? Does your opinion change if you learn during the quarantine that the employee's doctor never recommended the quarantine and the employee lied about receiving that recommendation?

Those are the basic facts of O'Bryan v. Joe Taylor Restoration, and upon which a federal court jury in Southern Florida recently entered a verdict in favor of the employer.

Explaining the EEOC’s brand-new LGBTQ+ resources in three words

Yesterday, Bostock v. Clayton County—the Supreme Court decision which held that Title VII expressly covers and protects gay and transgender employees—celebrated its one-year anniversary. 

To commemorate this event, the EEOC released new resources on the issues of sexual orientation and gender identity workplace rights. These materials include a new landing page that consolidates the EEOC's information on these issues and a new technical assistance document to help explain Bostock and the EEOC's positions on it.

As sure as I believe love is love, I'm sure every BigLaw firm will be publishing detailed summaries about this new technical assistance document. 

I can summarize it, however, in three short words.

HR horror stories

If you've never experienced someone spreading 💩 all over the place, then you don’t work in employment law or HR.

For example, consider the following, which I found on the local police blotter—

Ex-employee in deep doo-doo after prank: A cashier reported an employee who had given his two weeks’ notice was seen running from the restaurant restroom to his car and driving away. A check of the restroom revealed the suspect had scattered dog feces on the floor. He was arrested and charged with criminal mischief.

Based on my experience, this story is quite tame. Just the floor? What about the walls? And only dog feces? Or was it really just dog feces?

I posted that story on LinkedIn and asked if anyone could top it. My followers did not disappoint.

I'm omitting names and employers to protect the guilty. Happy Tuesday!

Coronavirus Update 6-14-2021: It took all of 12 days for 117 employees to learn what it feels like to lose a lawsuit in spectacular fashion

Twelve days ago I predicted that the 117 hospital workers suing their employer over its mandatory COVID-19 vaccine would lose their lawsuit in spectacular fashion. 

I love it when I'm very, very correct. 

Over the weekend, Judge Lynn Hughes of the United States District Court for the Southern District of Texas issued a pointed five-page opinion that eviscerated the plaintiffs' arguments and dismissed their lawsuit. The losers vow to appeal and fight on. To quote one of my law school professors, I say, "Too bad, so sad, hard cheese."

Here's what I predicted about this case and the plaintiffs' arguments, and here's what Judge Hughes had to say.

Coronavirus Update 6-11-2021: OSHA’s long-awaited COVID-19 safety rule is a big bowl of … meh

Today is the 15-month anniversary of the COVID-19 pandemic. All that employers have asked of OSHA during the past year and a quarter is some clear guidance on the rules and expectations to keep employees healthy and safe. Yesterday, OSHA finally complied … sort of. 

The agency issued an emergency rule that sets workplace safety parameters for employers for the remainder of the pandemic. Critically, however, it only applies to health-care employers. (Does this apply to you? OSHA published this not-so-handy flowchart to help you out.) With a few exceptions for workplaces in which all employees are fully vaccinated and which bar anyone who may have COVID-19, health-care employers must maintain social distancing protocols, provide and ensure that workers wear appropriate face masks while at work, and give workers paid time off to get vaccinated and recover from vaccine side effects, among other provisions. OHSA even published this handy screening questionnaire, which I drafted for my clients 15 month ago.

For all other employers, OSHA updated its voluntary guidelines to focus primarily on protections for unvaccinated and otherwise at-risk workers. These updates largely track the CDC's updated guidelines for the fully vaccinated. 

Coronavirus Update 6-10-2021: The patients have taken over the asylum

Meet Dr. Sherri Tenpenny. She calls herself the "most knowledgeable and outspoken physician on the adverse impact that vaccines can have on health." The Center for Countering Digital Hate, on the other hand, identifies her as number four among its "Disinformation Dozen" … "twelve anti-vaxxers who play leading roles in spreading digital misinformation about Covid vaccines."

She is also one of 517 people who offered testimony earlier this week in the Health Committee of the Ohio House of Representatives in favor of Ohio House Bill 248, the Vaccine Choice and Anti-Discrimination Act. That bill would:

• Prohibit anyone from mandating, incentivizing, or otherwise requesting their employees, customers, or students get vaccinated;
• Make it illegal for anyone to require a vaccination for someone who refuses based on medical contraindication, natural immunity, religious convictions, or other reasons of conscience; and 
• Prohibit anti-vax discrimination.

This is a clip of Dr. Tenpenny's testimony, the scariest, and craziest, offered that day.

Testimony going off the rails now.

Tenpenny is claiming there is metal in the vaccine that causes forks to stick to your forehead. She saw videos of it on the internet, you see

Also promoting the 5G cell phone network vaccine theory. This is the anti-vaccine "expert witness" pic.twitter.com/sPpuAqmHba

— Tyler Buchanan (@Tylerjoelb) June 8, 2021