Appellate court reinstates sex-discrimination claim of transgendered worker

A federal appellate court reinstated the sex-discrimination claim of a transgender auto mechanic. Credit Nation Auto Sales fired Jennifer Chavez less than three months after she notified it of her gender transition.

The employer argued that it fired her because it caught her sleeping in a customer’s vehicle while on the clock. Even though the court concluded that the employer’s reason was “true and legitimate”, it nevertheless reversed the trial court’s dismissal of the sex-discrimination claim.

NLRB continues to slam employers on mandatory arbitration clauses

Last week, the Huffington Post reported that Guitar Center was requiring all of its employees to choose between signing arbitration agreements or losing their jobs.

I have been critical of employers’ use of arbitration agreements because I do not believe that they provide employers with a quicker, cheaper, and less risky alternative to a judicial resolution of employment disputes.

The NLRB is also highly critical of arbitration agreements, but for a wholly different reason. The NLRB believes that such clauses unlawfully infringe on the rights of employees to engage in protected concerted activity.

WIRTW #396 (the “walking dead”) edition

I love the creativity of children, mine or otherwise. Donovan can’t recall which of his bandmates came up with the name for his Rock 101 band (performing two free shows at the Music Box Super Club — Jan. 16 @ 2:30 and Jan. 23 @ 1:00), and it’s too good not to share: Zombie Fried Chicken.

There are bands everywhere that wish they had thought of the name first. Too bad, it’s taken.

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

Ohio court muddles the issue of counterclaims-as-retaliation

Friedrich Nietzsche once said, “It is impossible to suffer without making someone pay for it; every complaint already contains revenge.” Litigation, however, is no place for revenge. The question I am most asked by clients after they are sued, besides, “How much is this going to cost me,” and “After I win I can collect my attorneys’ fees from that bastard,” is, “How do I countersue that bastard for _________?”

A recent Ohio appellate decision will, unfortunately, muddle the answer to this question.

OSHA now thinks that it can cite facilities it hasn’t even visited

Central Transport operates trucking terminals around the country. As a result of OSHA’s investigation of one facility in Massachusetts, the agency fined the company $330,800 for violations relating to powered industrial trucks. That, in and of itself, is not that remarkable. What OSHA did next, however, should cause your head to spin.

EEOC stakes its turf on the issue of sexual orientation discrimination

As I thought of which David Bowie song to support today’s effort, the one that leapt to mind is “Space Oddity” (I was going to use “Changes”, but Dan Schwartz already claimed it for his post yesterday).

To me, it is a complete oddity that, in the 2016, it is still statutorily legal for an employer to fire an employee because of that employee’s sexual orientation. On this point, the EEOC and I see eye-to-eye. The difference, however, is that the EEOC is in a position do so something about it. What it is not doing is sitting around and waiting for Congress to do something about it.

Employers feeling good about win in EEOC wellness case

Nine months ago, the EEOC published proposed regulations detailing how and when employers can maintain wellness incentives for employees under group health plans without running afoul of the ADA’s voluntariness requirements for medical exams.

In the closing minutes of 2015, a Wisconsin federal court issued an opinion in one of the first lawsuits filed by the EEOC that had challenged an employer wellness program as an ADA violation. The resulting victory for the employer may cause the EEOC to rethink its wellness-incentive strategy.