WIRTW #363 (the “iron throne” edition)

I was a Sesame Street kid. Muppets taught me to read, count, and have manners.

I’m a tad late, however, to Game of Thrones. I’ve been frantically binge watching, trying to catch up before Season 5 begins (or, more likely, ends – I’m nearly through Season 3 as I type).

What do you get when you marry these two shows? Game of Chairs, of course.

How many Game of Thrones references can you catch?

Here’s the rest of what I read this week:

Discrimination

• EEOC on Transgender Harassment, Discrimination, and Restrooms — via Phil Miles’s Lawffice Space
• A white employee tossed banana peels at work, and HE claims discrimination. He might WIN too. — via Eric Meyer’s The Employer Handbook Blog
• Are fraternities subject to title III of the ADA? — via Understanding the Americans with Disabilities Act 
• Five Lessons For Employers From the Ellen Pao Verdict — via California Employment Law
• SEC Clamps Down On Employee Agreements Thought to “Chill” Whistleblower Activity — via Employment Law Worldview
• After Ellen Pao’s Loss, More Women In Tech Bring Gender Discrimination Lawsuits — via Workplace Fairness

Social Media & Workplace Technology

• Cyber Security Competition Kicks Off — via The ChamberPost
• Cyber Insurance: What do Cyber Insurance Policies Cover and Cost? — via Privacy and Data Security Insight
• We Continue to Miss the Texting Opportunity In HR — via The HR Capitalist, Kris Dunn
• Do Employers Own LinkedIn Groups Created By Employees?–CDM v. Sims — via Technology & Marketing Law Blog
• Social Media and Time Management: Boogeyman or Symptom? — via Next Blog
• Why Do We Publicly Shame People Out of Their Jobs? — via Harvard Business Review

HR & Employee Relations

• Recognizing the Red Flags of Fraud — via FRAUDfiles
• The Unique World of “Leave of Absence” Policies — via ERC Insights Blog
• “Just Give Me a Reason” Not Enough to Satisfy Just Cause Provision — via Dan Schwartz’s Connecticut Employment Law Blog
• Employment Lessons from Germanwings: Why Mental Health Is So Important — via Employment Intelligence
• L. Ron Hubbard's Best Career Lessons — via Lifehacker
• Life in an Inflexible Office — via 1 Million for Work Flexibility
• Training Video on Millennials in the Workplace. — via What About Clients?
• Check Out The FTC’s Newly Revised Background Checks Brochure — via FYI Screening

Wage & Hour

• Hey Employer don’t look to the USDOL for help — via Mike Haberman’s Omega HR Solutions
• An Argument for Unfair Pay — via Compensation Cafe
• When Paying Accrued “Vacation” at Termination, Labels Don't Matter [Wage & Hour FAQs] — via Wage & Hour Insights
• Wal-Mart Part Deux? Company Appeals Class-Case to Supreme Court — via Workplace Prof Blog
• Does FMLA Cover In Vitro Fertilization? Does It Matter if Dad's Sperm is to Blame? — via Jeff Nowak’s FMLA Insights
• Intermittent FMLA Leave: A Chronic HR Headache (Part I) — via Southwest Florida HR Law & Solutions

LGBT rules for federal contractors now in effect

If you are a federal contractor or subcontractor, this is big week for you. On April 8, the OFCCP’s Final Rule Implementing Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors took effect.

What does this mean for federal contractor’s and subcontractors?

• You must take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
• You must include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
• You must update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
• You must post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Here’s what President Obama said when he signed the Executive Order last year:

It doesn’t make much sense, but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are—lesbian, gay, bisexual, transgender. And that’s wrong. We’re here to do what we can to make it right—to bend that arc of justice just a little bit in a better direction….

Equality in the workplace is not only the right thing to do, it turns out to be good business. That’s why a majority of Fortune 500 companies already have nondiscrimination policies in place. It is not just about doing the right thing—it’s also about attracting and retaining the best talent….

And yet, despite all that, in too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense….

For more than two centuries, we have strived, often at great cost, to form “a more perfect union”—to make sure that “we, the people” applies to all the people. Many of us are only here because others fought to secure rights and opportunities for us. And we’ve got a responsibility to do the same for future generations. We’ve got an obligation to make sure that the country we love remains a place where no matter who you are, or what you look like, or where you come from, or how you started out, or what your last name is, or who you love—no matter what, you can make it in this country.

Here’s to a day, hopefully in the very-near future, when this arc of justice no longer needs to be bent.

Direct evidence must … wait for it … exist to matter in a discrimination case

You have admire the creativity of attorneys. In Butler v. The Lubrizol Corp. (Ohio Ct. App. 3/31/15) [pdf], the plaintiff argued that direct evidence of race discrimination existed because, when confronted with a complaint of discrimination, the plaintiff’s supervisor did not deny it. The appellate court, in affirming the dismissal of the plaintiff’s claims, disagreed:

Specifically, appellant states the trial court erred by declining “to hold that a direct evidence method of proof can be made in a discrimination case based on an ‘admission by omission’….” His argument is that although Decker never admitted to making decisions based on race, he also never denied it, and that the lack of a denial can be used as direct evidence that the accusations are in fact true….

The trial court stated that appellant’s evidence of Decker’s silence “would require the finder of fact to infer solely from Decker’s failure to directly address the accusation of race discrimination that the accusation is true.” … We agree….

Discrimination cases are laced with emotion. The plaintiff, in essence, is accusing the employer and its management of bigotry of one kind or another. When confronted with this accusation, it’s okay for a manager or supervisor to show some humanity by denying it, vehemently. Rest assured, however, that silence in the face of these allegations should not hang the employer with the noose of direct evidence of discrimination.

NLRB issues official guidance on “ambush election” rules

One week from today, the NLRB’s “ambush election” rules take effect. Yesterday, the Board published its official guidance discussing how it will process representation cases going forward.

According to the Board, these new rules do not “establish new timeframes for conducting elections or issuing decisions.” Yet even the quickest reading of the guidance memo reveals the opposite. Timeframes for the filing of briefs, the holding of hearings, and other election-related events are accelerated. For example, employers will have only two business days after the approval of an election agreement to provide a voter list to the union (accelerated from seven days). Five days may not seem like much, but, when you add five days here, and five days there, and a few more days elsewhere, you end up with an election process that is extraordinarily shortened, limiting an employer’s ability to effectively mount a campaign to explain its position to its employees.

Curiously absent from the guidance, however, is a target deadline for the holding of the election. Instead, the Board says the following:

The Board has said that the election should be held at the earliest date practicable consistent with the Board’s rules. At this point, because there is no experience processing cases under the final rule, it is not possible to express a standard in terms of a specific number of days from the filing of the petition to the election. Rather, I expect that regional directors will exercise their discretion and approve agreements where the date agreed upon by the parties is reasonably close to the date when an election would likely be held if it were directed.

Employers, however, should not take too much solace from this omission. The Board is on record as saying that elections under the new rules should be held within 10 days. I have no reason to believe that “the earliest date practicable” is anything different than a target of 10 days.

The guidance memo is a necessary read for all employers. You can download it here [pdf].

NLRB eviscerates the line between insubordination and protected concerted activity

Employers struggle with how to handle employees to take to social media to vent about work. And, they do so for good reason. For one, employers risk creating a viral nightmare out of a fleeting vent. Also, the NLRB continues to take a long, hard look at Facebook firings.

Case in point: Pier Sixty, LLC [pdf].

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration. 

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! 

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Not so surprisingly, when the employer learned of the Facebook post, it fired the employee. Also not so surprisingly, the foul-mouthed Facebooker filed an unfair labor practice charge with the NLRB.

The NLRB sided with the employee:

[W]hile distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “fuck” and “motherfucker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.

Even if the air of this workplace is full with tolerated obscenities, should an employer ever have to tolerate this type of language specifically directed at a member of management and his family? More to the point, as the lone dissenter argued:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases NASTY MOTHER F—er and F—ck his mother and his entire f—ing family are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez’ statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

What are the takeaways for employers?

1. Insubordination is insubordination, period. An employer should not have to put up with this type of harsh language specifically directed at a member of management. Nevertheless, this case illustrates the regulatory environment under which employers currently operate, and the scrutiny that even the safest of terminations might receive.
2. If you want to make sure that you have the freedom to discipline any employee for the use of obscenities, it is safest to apply the same standard to all employees. Nevertheless, I firmly believe that the Board missed the mark in this case. There exists a real and meaningful distinction between the occasional conversational f-bomb and “Fuck his mother and his entire fucking family!!!!“

WIRTW #362 (the #rockweek2015 edition)

Cleveland is popping. We landed the 2016 Republican Convention. We keep showing up on national “best of” lists—best city to visit, best food, best beer…. Our urban renaissance continues at warp speed. We’re even revitalizing the Flats. And, one week from tomorrow, April 11, Rock Week starts, in honor of my city’s triennial hosting of the Rock & Roll Hall of Fame induction ceremony.

Rock Week kicks off with an awesome event. All day April 11, the Rock Hall will open its door for anyone and everyone to enter … free. The event, which the Rock Hall has dubbed Celebration Day, will feature two stages of music, food trucks, family programming and caps with fireworks in Voinovich Park.

At 2:30 pm, School of Rock will perform a set of music by 2015 inductee Joan Jett, featuring (among others) Norah Hyman on guitar and vocals. If you’re looking for something fun to do as we wait for spring to, well, spring, stop by the Rock Hall on April 11 and see my girl strum, sing, and rock. Here’s a small taste.

A video posted by Jon Hyman (@jonhyman) on Jan 24, 2015 at 9:33am PST

Here’s the rest of what I read this week:

Young v. UPS

• The ADAAA, Young v. UPS, and the new state of pregnancy accommodation law — via Phil Miles’s Lawffice Space
• Pregnancy accommodation FAQs for employers — via Robin Shea’s Employment & Labor Insider
• What Connecticut Employers Need To Know About Young v. UPS — via Dan Schwartz’s Connecticut Employment Law Blog

Discrimination

• Tim Cook: “Religious Freedom” laws are pro-discrimination — via TiPb
• Transgender Discrimination? He Said, She Said… — via The Employment Brief
• Hiring for Culture Fit: Discrimination by Another Name? — via In House
• 4th Circuit Holds Social Anxiety May Be Disability Under the ADA — via Wisconsin Employment & Labor Law Blog
• Disabilities that pose a “direct threat” in the workplace — via EmployerLINC
• Caregivers are protected from associational discrimination — via Mike Haberman’s Omega HR Solutions
• (Un)Equal Protection: Why Gender Equality Depends on Discrimination — via Ross Runkel Report

Social Media & Workplace Technology

• Your ex-employee won’t tell you the password to your company’s LinkedIn page. Now what? — via Eric Meyer’s The Employer Handbook Blog
• Wearables in the office: Security risk? — via Business Management Daily
• The Enemy Within: Five Strategies For Protecting Your Data From Rogue Employees — via Privacy and Data Security Insight
• Eight Keys for Developing a Data Breach Response Plan — via netWORKed Lawyers
• What the Difference Between Information Security and Cybersecurity? — via Ride The Lightning
• Cybersecurity: FINRA’s Take — via Above the Law
• Social Media Searches: Go Beyond the Google — via Litigation PostScript. Persuasion Strategies for Litigators

HR & Employee Relations

• I Didn’t Come to Work Because I Dreamed I Got Fired — via Workplace Insights
• My Employee Suddenly Became Gluten Intolerant — via Evil Skippy at Work
• When You Have to Let People Go, Do It With “Professional Kindness” — via TLNT
• Is Work Flexibility Already Trickling Into Your Office? — via 1 Million for Work Flexibility
• The Love Contract – Taking the Romance Out of Office Trysts — via The Labor Dish
• Litigation Update: FCRA Claim Against Paramount is Thrown Out — via employeescreenIQ Blog
• A new employer obligation to provide predictable scheduling? — via Overlawyered
• In surprise show of support, filibuster-proof Senate majority backs paid sick leave — via Wonkblog

Wage & Hour

• PTO – I Use It or I Lose It (Mentally, That Is) — via Rob Schwartz’s Dad Working
• Ninth Circuit Creates Circuit Split Regarding FLSA Classification of Sales Advisor Position — via Wage and Hour Law Update
• The Department of Labor Investigates Retailers’ Relationships with Janitors — via The Wage and Hour Litigation Blog
• Secret Service Hit with Overtime Suit on Off-The-Clock Work — via Wage & Hour - Development & Highlights
• The Religious Freedom Restoration Act (RFRA) and Wage and Hour Law — via Wage & Hour Insights
• When — and How– to Require Certification of FMLA Leave Requests — via The Emplawyerologist

Labor Relations

• President Obama Vetoes Senate Joint Resolution Disapproving NLRB’s New Union Election Rules — via Employment Law Worldview
• NLRB to weigh in on high-stakes McDonald’s labor dispute — via The Hill
• Legislation Allowing Unionized Companies to Give Merit Raises Introduced in Congress — via Matt Austin Labor Law
• #Nextchat RECAP: Are College Athletes Students or Employees? — via Next Blog

“Daddy, why do Jewish people not like Catholics?”

On Wednesday nights, my wife and I drop our daughter off at band practice, and then take our son to dinner before his keyboard lesson starts. While sitting at dinner last night, my son hit us with this bomb: “Daddy, why do Jewish people not like Catholics? … Why did the Jews kill Jesus?”

If you’ve been a long-time reader, you know that my family is interfaith. Even though my kids are being raised Catholic, they understand that their Catholicism is only half of their religious background. I could go into a long dissertation as to why they are being raised Catholic, but the reality is that I am much more a secular Jew than a religious Jew, and since kids need to be raised something, Catholicism makes more sense, even to me.

Be that as it may, I certainly don’t want my kids thinking that their Jewish side doesn’t like their Catholic side. This morning on the way to the school bus I probed Donovan on where he got the idea that Jews don’t like Catholics. As it turns out (and as I suspected), it was his takeaway from hearing the crucifixion story at PSR on Monday night. I have no doubt that the message wasn’t one of hate, but rather one of miscommunication. Nevertheless, in Donovan’s developing six-year-old brain, when he was heard, “The Jews didn’t like/support/belive-in Jesus,” he understood it as, “Jews don’t like Catholics.” It an honest interpretation from an intelligent six-year-old boy, since he’s been taught his whole life that Catholicism and Jesus are intertwined.

I will explain to Donovan tonight that Jews and Catholics love each other. After all, he’s Catholic, as is his sister, mom, grandma, grandpa, aunts, uncles, and cousins—and I love all of them. I will try to explain, as best as I can, the historical context of what happened 2,000 years ago, and, hopefully, he’ll understand that what some people did those millennia long ago does not translate to today. Then, I will explain to the PSR teacher that she needs to be sensitive to the fact that she is teaching at least one interfaith child, and must tailor her message so as not to alienate or upset. We should be teaching inclusion, not estrangement.

The same lesson translates to your workplace. We live in a multi-cultural, multi-religious society, yet we are becoming more and more fragmented. Our great melting pot is not longer an olio, but an mishmash of separate ingredients holding for dear life to the edge of the pot. We are fragmented by religion, national origin, and political belief. Your challenge as an employer is to ensure that your workplace is integrated. You need to ask yourself what kind of workplace you desire. Do you want a workplace of inclusion or exclusion? Do you want employees to feel as though they are part of a team, or part of a tribe that happens to work among other tribes in the same building? To me, the former not only makes for a more cohesive workplace, but also one that limits the risk of liability for harassment, discrimination, and retaliation.