OSHA's new Whistleblower Investigations Manual creates a huge burden for employers

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We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

A wage/hour primer for employers with tipped employees

Employment Law 360 is reporting that a waitress is suing Walt Disney World for improperly taking a “tip credit” and paying her less than the minimum wage even though she spent significant time performing non-tipped work.

That story got me thinking that in the nine-plus years of this blog, I’ve never discussed how the FLSA impacts tipped employees. If you employ tipped workers, today is your lucky day.

Did the 7th Circuit finally kill McDonnell Douglas?

If you are an employment lawyer, the words “McDonnell Douglas” will bring a sentimental tear to your eye.

For the unfamiliar, the McDonnell Douglas is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this minimal showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination.

It has existed for the past 43 years, until (maybe) last week.

Federal court's rejection of LGBT discrimination claim on religious grounds has scary implications

Last week, a Michigan federal judge rejected the EEOC’s claim that Title VII covers transgender status or gender identity as protected classes.

In EEOC v. R.G. & G.R. Harris Funeral Homes (E.D. Mich. 8/18/16) [pdf], the agency pursued a sex-discrimination claim on behalf of the Funeral Home’s former funeral director, Stephens, who is transgender and transitioning from male to female. The EEOC claimed that the Funeral Home “fired Stephens because Stephens is transgender, because of Stephens’s transition from male to female, and/or because Stephens did not conform to [the Funeral Home’s] sex- or gender-based preferences, expectations, or stereotypes.”

The court rejected that claim on several grounds, including the Funeral Homes’s religious beliefs as protected by the Religious Freedom Restoration Act. This basis for the holding greatly troubles me.

WIRTW #426 (the “back to school” edition)

They are responsible for the matching outfits, not me. Norah and Donovan could not be happier to be back @lakeridgeacademy. #backtoschool #firstdayofschool #lakeridgeacademy

A photo posted by Jon Hyman (@jonhyman) on Aug 17, 2016 at 7:00am PDT

Here’s what I read this week:

Hard to believe that overt pregnancy discrimination still exists … yet it does

Pregnancy discrimination has been unlawful under federal law since 1978. You’d think by now employers would have learned their lesson—that women should not have to choose between being pregnant and being employed. Yet, this recent story from the Washington Business Journal suggests otherwise.

DOL wage/hour agreement with Subway raises legitimate joint-employer concerns

The Department of Labor recently unveiled an agreement with Subway through which the fast-food giant has agreed to assist its franchisees in their wage-and-hour compliance.

According to the DOL

the agreement builds upon the division’s ongoing work to provide technical assistance and training to Subway’s franchisees. It also provides an avenue for information-sharing where we will provide data about our concluded investigations with Subway, and they will share their own data with us, generating creative problem solving and sparking new ideas to promote compliance. When circumstances warrant, the franchisor will remind franchisees of the Wage and Hour Division’s authority to investigate their establishments and to examine records. It also specifies that Subway may exercise its business judgment in dealing with a franchisee’s status within the brand, based upon any history of Fair Labor Standards Act violations.