Ohio’s attempt at an off-duty conduct law creates many more problems than it solves

It has become increasingly difficult to separate our private lives from our professional lives. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer.

Ohio is not one of these 29 states. Senate Bill 180, however, is looking to change that.

The other side of the coin on the appropriate response to harassment

Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace.

WIRTW #386 (the “onion” edition)

I’ve the reading the Onion for years. It’s consistently funny, often offensive, and seldom disappoints. Here’s some quick hits (all, surprisingly, SFW) published by the Onion over the past year.

• Impressive New Hire Figures Out Bare Minimum Of Work Job Requires On First Day
• Boss Able To Seamlessly Blend Constructive Criticism With Personal Attacks
• Company Flat-Out Asks Female Candidate How Much Mileage They Can Get Out Of Her Before She Has Baby
• Jeff Bezos Assures Amazon Employees That HR Working 100 Hours A Week To Address Their Complaints
• HR Director Reminds Employees That Any Crying Done At Office Must Be Work-Related
• HR Sends Out Reminder Email About Not Scrawling ‘Revenge’ In Blood In Conference Room

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

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.”