The 3rd nominee for the “worst employer of 2017” is … the direct discriminator

Our next nominee for the Worst Employer of 2017 is the defendant in Mayes v. WinCo Holdings (9th Cir. 2/3/17) [pdf]—WinCo, a Bosie, Idaho, supermarket chain.

The plaintiff, Katie Mayes, a night-shift supervisor, was fired for taking a stale cake from the store bakery to share with fellow employees after management allegedly gave her permission to do so. That, however, is not what earned WinCo the nomination. Instead, it’s what the court found Mayes’s direct supervisor expressed about her (yes, her) belief about a woman running the night-shift:

WIRTW #447 (the “Gorsuch” edition)

Did you hear that Donald Trump appointed 10th Circuit Court of Appeal Judge Neil Gorsuch to fill to SCOTUS seat vacated by the death of Antonin Scalia? What have some of my blogging friends had to say about this appointment? Glad you asked.

• Gorsuch’s extra-judicial writing and speeches — via SCOTUSblog
• What President Trump’s Supreme Court Nominee Means for Employment Law Cases — via Jason Shinn’s Michigan Employment Law Advisor
• I wonder how Trump’s nominee, Neil Gorsuch, might decide a SCOTUS leave-accommodation ADA case. — via Eric Meyer’s The Employer Handbook Blog
• SCOTUS Nominee ‘Excellent’ Choice for Employers — via HR Daily Advisor
• Daily Trumpdate: Gorsuch seems to care about real people — via Robin Shea’s Employment & Labor Insider
• Judge Gorsuch is not Friendly to U.S. Workers — via San Antonio Employment Law Blog
• Where Does Gorsuch Stand on Tech and the Law? — via Technologist

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

Ohio again tries to restore sanity to its bonkers employment discrimination law

It was almost one year ago to the day that I penned, Now is the time to restore balance to Ohio’s employment discrimination law: Endorsing the Employment Law Uniformity Act. I wrote:

For lack of more artful description, Ohio’s employment discrimination law is a mess. It exposes employers to claims for up to six years, renders managers and supervisors personally liable for discrimination, contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines), and omits any filing prerequisites with the state civil rights agency.

Last year’s attempt at this sanity restoration, Senate Bill 268, died at the end of 2016 with the expiration of the last legislative session.

Thankfully, however, House Bill 2 has resurrected this attempt. (And, yes, the irony that today is Groundhog Day is not lost on me.)

Does the FLSA cover unpaid “gap time”?

As we all should know, the Fair Labor Standards Act requires that employers pay non-exempt employees overtime at a rate of one and one-half times the regular rate of pay for any hours worked in excess of 40 in any given work week. And, it provides a remedy for an employee to sue for unpaid overtime (among other remedies).

What about gap time? “What is gap time,” you ask? It’s employment-law speak for unpaid straight time. Does the FLSA authorize a court to provide a remedy for unpaid straight time (for example, off-the-clock work that does not break the 40-hour weekly threshold)? Or, does the FLSA only authorize back pay for unpaid overtime?

Unions membership is up in Ohio; is your business prepared?

Union membership numbers for 2016 are out, and while most employers should be encouraged, Ohio employers might think otherwise.

In Ohio, the percentage of workers belonging to unions is at 12.4 percent, up 0.1 percent from 2015. Nationally, union membership sits at 10.7 percent, down 0.4 percent from 2015. In other words, Ohio’s union representation is both greater than, and growing faster than, the national average.

Trump’s un-American travel ban and the workplace

I’ve had an internal debate all weekend long over whether I should blog about Trump’s executive order that that bans immigration from seven Muslim countries, suspends refugees for 120 days, and bars all Syrian refugees indefinitely. Ultimately, I decided that if you are not part of the solution you are part of the problem, and this issue is too important to remain silent. I choose to be on the correct side of history.

If you are a staunch defender of the President who does not care to read an opposing view, I suggest you stop reading now, and come back tomorrow for a more benign post. Or, better yet, post a comment and let’s have an intelligent debate about this issue. And, if you choose to unfollow or unfriend me because of my opinion, you are more than welcome to do that too. This is still America, and I respect your right to have an opinion even if I disagree with it. I hope, however, that you show me and my opinion the same respect and patriotism that I would show you and yours.

WIRTW #446 (the “I wish I wrote that” edition)

Every now and again, someone writes a blog post that I wish I had written. This week brought us one such post.

• Could “The Last Jedi” Actually Be Practicing Religion in Your Workplace? | Connecticut Employment Law Blog — via Dan Schwartz’s Connecticut Employment Law Blog

For what it’s worth, I titled Dan’s post better than he did:

The headline to my blog post that I WISH I had written. https://t.co/AsgqvhEmFF

— Dan Schwartz (@danielschwartz) January 24, 2017

These aren’t the Title VII claims you’re looking for #EpisodeVIII #TheLastJedi @starwars https://t.co/fxQImbF6u1

— Jon Hyman (@jonhyman) January 24, 2017

---

In other news, this week President Trump named Philip Miscimarra acting head of the National Labor Relations Board. Here are three reasons employers should rejoice at this appointment.

• Philip Miscimarra is mad as hell, and you should be too!
• Is it time for a new NLRB rule on handbook policies?
• Did the NLRB do more harm than good by permitting teaching and research assistants to organize?

---

Here’s what else I read this week: