Compensable working time : FLSA :: Disability : Pre-2009 ADA

Think back to when you took your SATs, many years ago—number-2 pencils, plastic school chairs and laminate-topped desks, florescent lights, nervous sweat, and, the bane of many a high-schooler, the analogies that comprise so much of the SAT’s verbal section. Remember “dog : bark :: cat : meow”?

Today, I am going to propose an employment-law, wage-and-hour analogy. It goes like this:

Compensable working time : FLSA :: Disability : Pre-2009 ADA

What does this mean (and how dare I make you think about your SATs for the first time in forever)?

John Oliver on OSHA (and a not-so-subtle shout-out to my firm’s new OSHA blog)

On this week’s Last Week Tonight, John Oliver gives OSHA a pass on its slack investigations of North Dakota oil field accidents. He blames OSHA’s inactivity on its lack of resources coupled with the oil companies’ use of subcontracted employees.

Just because harassment is offensive doesn’t make it illegal

Clifford Harris is a practicing member of the Voodoo religion. His co-workers at Electro-Motive Diesel often expressed their opinion about his religion, calling him “crazy” and describing it as “evil”. (For what it’s worth, they might not have been that off base—Harris once got called into a meeting with his supervisor after he was accused of blowing Voodoo dust on a co-worker.)

Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
• “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
• “[Arroyo] is really becoming a pain with all this.”

WIRTW #385 (the “there’s no such thing as a free lunch…” edition)

Retailer Urban Outfitters is trying to new strategy to staff its fulfillment centers for the holiday season. It’s asking its salaried employees to work weekends. And, since they are already paid a salary, the work comes with the added bonus of no extra pay, but with a free lunch, and transportation (if needed).

A lesson on USERRA and military-status discrimination

The Uniformed Services Employment and Reemployment Rights Act guarantees servicemembers the right to be free from discrimination in hiring, re-hiring or reinstatement, retention, promotion, or any benefit of employment on the basis of that membership, application for membership, performance of service, application for service, or obligation in the armed forces.

Intermittent leave for exempt employees: the survey results

Last week, I asked a simple question: should employer require salaried, exempt employees to take intermittent FMLA leave as unpaid leave, and deduct hours spent on leave from their pay.

Here are the results: