WIRTW #688: the “(not) Progressives” edition

Misgendering a transgender employee + forcing him to out himself to his coworkers + passing him over for a promotion + subjecting him to an unwanted office transfer + scrutinizing his medical appointments and other time off + ignoring his three HR complaints = a jury trial for Progressive Insurance on claims of sexual harassment, discrimination, and retaliation.

According to the plaintiff, the first four years of his employment at Progressive were without incident, until he informed his supervisor of his intent to transition from female to male. That's when he alleges the mistreatment began, and continued for the final four years of his employment until he quit.

Transgender people are under attack. This lawsuit is a symptom of a much larger problem in workplaces across our country. Trans employees often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender nonconforming. Otherwise, you just might find yourself at a receiving end of a well-deserved and difficult-to-defend lawsuit. Just ask Progressive Insurance.

The case is John Doe v. Progressive Ins., and you can find the court's summary judgment opinion here.

Facebook Messenger and other alternative communication channels for attendance call-outs

An employee uses Facebook Messenger to notify his supervisor of a medical absence, ignoring the company's policy that requires employees to use a specific call-in line to notify their supervisor of a tardy or absence at least 30 minutes before their shift begins.

Are these absences FMLA-protected excused absences, or unexcused absences subject to termination?

In 2019, Kasey Roberts took six weeks of leave to undergo and recover from an emergency appendectomy, after notifying his supervisor via Facebook Messenger. A few days after returning, Roberts was hospitalized for a post-surgical infection. He again sent his supervisor several Facebook messages notifying of his absences.

After Roberts missed three more weeks of work, his employer fired him for job abandonment, claiming that all of his absences were unexcused since the call-in line, and not Facebook Messenger, was its "usual and customary" system for medical leave notice.

Let’s play FLSA error-spotting

Empire Diner pays its servers a tipped minimum wage of $2.83, the permissible tipped minimum wage in the state in which it's located, Pennsylvania. According to the company's payroll records, each employee earns more than the statutory minimum wage, $7.25 per hour.

So far, so good under the Fair Labor Standards Act. So where did Empire Diner make its FLSA mistakes, according to the 3rd Circuit?

The 10th nominee for the “Worst Employer of 2023” is … the jack(a$$) in the box

The EEOC recently filed a lawsuit against a Jack in the Box restaurant owned and operated by Eastbox LLC, alleging sexual harassment against teen and young adult female employees. 

The allegations are horrific. 

WIRTW #687: the “red rain” edition

What was your worst day at work? 

If you work at Destilaria Levira, in Levira, Portugal, it was almost certainly this past weekend, when two wine storage vats exploded, flooding the town with 2.2m liters of "good quality" red wine. 

But a company is not defined by its disasters, it's defined by how it handles them after the fact. And this business handled his disaster very, very well.

"Dear Neighbors," its Facebook post began. 

We deeply regret the incident that occurred this morning involving the bursting of 2 suitable-to-consumption DOC wine storage units stemming from the extraordinary government support measure to producers and wineries of the Distillation Crisis 2023 motivated by the excess of wine in the country. 

Although the incident did not cause any injuries, we want to express our sincere concern for the damage caused in general in Levira and in particular to his home.  

 

The causes of the incident are being investigated by the competent authorities. 

We take full responsibility for the costs associated with damage cleanup and repair, with crews available to do it immediately. We're committed to resolving this situation as soon as possible.

Please keep photographic records of damages and damages and contact us to discuss the details and coordinate the necessary procedures. We are available at any time to help you resolve this issue.

Once again we apologize for the inconvenience caused and we're committed to doing whatever is necessary to remedy the situation.

Thank you very much and once again, we are very sorry.

Repeat after me: Never, ever, ever ignore court orders

Have you ever heard of a "writ of body attachment?" Me neither, until yesterday. That's when the 7th Circuit Court of Appeals issued one against Timothy and Carley Dillett, two corporate officials of Haven Salon + Spa, and ordered federal marshals to take them into custody.

What did the Dilletts do to earn the ire of a federal appeals court and wind up in custody?

They repeatedly and willfully ignored the NLRB's and the Court's orders.

If you bet on which of your employees will get Covid, you probably shouldn’t qualify for a bonus

In late 2020, Tyson Foods fired seven of its pork processing plant managers after they were caught betting on which of their employees would next get sick with Covid. At that time, more than 1,000 Tyson employees had fallen ill, and six had died. In announcing the firings, the company's President and CEO said, "The behaviors exhibited by these individuals do not represent the Tyson core values, which is why we took immediate and appropriate action to get to the truth. Now that the investigation has concluded, we are taking action based on the findings."

Not content with leaving well enough alone, five of the seven fired managers sued Tyson Foods claiming that the company owed them a bonus payment pursuant to the company's Annual Incentive Plan. 

The 9th nominee for the “Worst Employer of 2023” is … the cake boss

Telling an employee to "Eat a Dick" won't earn you a nomination for the Worst Employer of 2023. 

Writing "Eat a Dick" on the inside lid of a box holding a penis-shaped cake you have delivered to an employee won't even earn you a nomination for the Worst Employer of 2023. 

But doing so when you're the company's HR manager? That will earn you a well-deserved nomination to this year's list.

WIRTW #686: the “non-union label” edition

(With a huge tip of the hat to my friend Mike VanDervort for the idea), and inspired by the impending union election at Creature Comforts, I asked Bard, Google's AI assistant, the following question: "What are some good names for a union-free craft beer?"

Bard's suggestions:

• Free Range Ale
• Independent IPA
• Maverick Pale Ale
• Unshackled Wheat 
• Renegade Stout
• Free Spirit Saison
• Unbowed Brown Ale
• Unbound Amber Ale
• Defiant Pilsner
• Untamed IPA
• Wild Card Porter

But it is its rationale for choosing those names that is the most enlightening. 

These names all convey the idea of being free from union control, while also being creative and catchy. They would be a good fit for a craft beer that is brewed by a small, independent brewery that values its employees and gives them a fair wage.

There's a whole lot of wisdom in the statement that valuing your employees and paying them a fair wage is what a business needs to do to stay union free. So, crack open an Unshackled Wheat or an Independent IPA and toast those businesses that treat their employees like people, and not like replaceable widgets whose only goal is to make the company profits; they will be the employers that will remain union free, even as the NLRB is doing everything within (and without) its power to unionize as many businesses as possible.

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Can you hear me now?! Jury awards deaf truck driver $36M in disability discrimination lawsuit

$36 million is a number large enough to get anyone's attention. It certainly got the attention of Drivers Management, LLC and Werner Enterprises, Inc., after a federal jury awarded the EEOC that amount in a disability discrimination lawsuit it filed on behalf of Victor Robinson, a deaf truck driver, denied employment because of his disability.

OSHA wants to let union reps into your non-union facility

If OSHA gets its way, you might have to start opening the doors of your business to union reps during the agency's safety inspections.

Pursuant to a new rule proposed by OSHA, in the event of an OSHA inspection an employee can designate another employee or a non-employee third-party to accompany the OSHA agent during the physical workplace inspection.

WIRTW #685: the “good bosses” edition

I write about a lot of horrible, terrible bosses … the worst employers. 

Today, however, I want to use this space to shine a light on five really, really great bosses … specifically late-night hosts Stephen Colbert, Jimmy Fallon, Jimmy Kimmel, Seth Meyers, and John Oliver. This week, they launched a new podcast — Strike Force Five — to raise money for their employees that have been out of work since the WGA went on strike 122 days ago. 

The hosts are donating all proceeds they receive from the podcast to the out-of-work staff from their respective shows.

Do them a favor and show your support and appreciation by finding Strike Force Five in your podcast app of choice and subscribing. 

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DOL announced proposed rule to increase salary threshold for white-collar exempt employees

$1,059 per week. If the Department of Labor gets its wish, that amount will become the new salary threshold for its various white-collar overtime exemptions. Yesterday, the DOL published a notice of proposed rulemaking seeking to increase the FLSA's salary test from the current threshold of $684 per week ($35,568 annually) to $1,059 per week ($55,068 annually).

You will read a lot over the next couple of months that the DOL increasing its white-collar salary threshold by nearly 55% is a huge deal. I'm here to tell you that it really isn't.

NLRB opens the tap for a union election at Creature Comforts Brewing Company … but will it matter?

It took more than seven months, but the NLRB has finally directed a union representation election at Creature Comforts Brewing Company. The NLRB will soon hold a secret ballot election over whether employees wish to be represented for purposes of collective bargaining by the Brewing Union of Georgia. 

The bigger issue for Creature Comforts, however, is that even if it wins the election, the union will almost certainly use its four pending unfair labor practice charges against the employer to seek a bargaining order under the Board's recent Cemex decision (which the Board will apply retroactively).

EEOC busts a quartet of hospitality employers for pervasive sexual harassment

In a press release, the EEOC announced the filing of a series of sexual harassment lawsuits against Las Vegas hospitality employers. 

[The l]awsuits … allege sexual harassment towards employees by owners, supervisors and management, co-workers, and/or customers. The four lawsuits included allegations raised by workers throughout the hospitality industry, from housekeepers in hotels to waitstaff in both high-end and casual restaurants and bars. Allegations included the attempted rape of a young housekeeper, sexual assault, sexual solicitations, sexual comments, inappropriate touching, stalking, and other inappropriate behaviors. 

These lawsuits are consistent with agency's enforcement priorities as outlined in its just-released Strategic Plan, which includes targeting education and enforcement effots to protect vulnerable communities.

BREAKING NEWS: NLRB issues in the era of card-check union recognition and bargaining order remedies

In Cemex Construction Materials Pacific, the NLRB significantly altered the process for how a labor union becomes certified as the exclusive bargaining representative of a group of employees.
Cemex eliminates (1) secret-ballot representation elections upon the presentation of signed authorization cards; and (2) re-run elections in the face of election-campaign unfair labor practices.

In their place, Cemex: (1) requires an employer to recognize and bargain with a union upon its presentation of a majority of signed authorization cards unless the employer promptly (within two weeks absent unforeseen circumstances) files an RM petition seeking an election; and (2) authorizes the Board to issue a bargaining order instead of directing a second, re-run election if an employer seeking an RM election commits any unfair labor practice prior to election that would require the Board to set the election aside.

WIRTW #684: the “chocolate city” edition

This is Dante, our four-year-old vizsla. Last week, he thought it was a good idea to eat some cocoa powder. As a result, he spent an overnight in the emergency vet hospital; he seems no worse for wear.

Chocolate is toxic to dogs because it contains both theobromine and caffeine, which dogs cannot metabolize and which causes significant and dangerous digestive, neurologic, and cardiac effects. In fact, cocoa powder contains the highest concentration of these chemicals and is the most toxic to dogs. According to vet, the Dante likely ate 2.5 times the lethal limit.

In other words, it's a really good thing we took him in.

He did suffer a cardiac episode while admitted. The vet told us Dante had tachycardia (an abnormally increased heart rate), which they controlled via medicine. He's had no other issues since we brought him home.

We all learned a lesson. Dante (hopefully) learned not to eat cocoa powder. We learned that when you're cleaning out your cabinets as water pours out of your kitchen ceiling from a burst pipe, take the time to make sure the dangerous stuff remains out of reach.

This is me, exhaling a huge sigh of relief. 😮‍💨 😌

Here's what I read and heard this past week that you should read and hear, too.

Determining the exempt status of a dual-purpose employee

Tony works at a local brewery as its assistant general manager. In that capacity, he interviews, hires, trains, coaches, disciplines, and fires lower-level employees; recommends employees for promotions; meets with lower-level managers to ensure they are meeting expectations; and reviews sales, hours, labor, and overtime reports. To meet the operational needs, however, Tony also picks up regular shifts in the taproom performing hourly, nonexempt work such as waiting tables and bartending. Despite his $75,000 annual salary, Tony estimates that he only spends approximately 20% of his working time performing his managerial duties, while he spends the balance of his time on non-exempt tasks.

Is Tony FLSA exempt or FLSA non-exempt?

This is why I hate timeclock rounding policies

The rounding of an employee's clock-ins and clock-out to the nearest of a specific increment of time is perfectly legal. It's also a perfectly terrible idea.

Let me explain.

5th Circuit rejects the “ultimate employment decision” test for workplace discrimination claims

"Female employees are not given full weekends off and can only receive weekdays or partial weekends off."

Is this policy legal or illegal?