2nd Circuit holds that it’s perfectly okay for an employee to curse out his boss on Facebook (NSFW)

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

National origin discrimination laws don’t matter in Trump’s America

Last week, President Trump signed his “Buy American, Hire American“ Executive Order. The EO encourages American businesses to buy American-made products and hire American workers.

Come again? Does that say hire American workers? Doesn’t Title VII prohibit national origin discrimination?

Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this EO is … curiously disturbing.

WIRTW #458 (the “update” edition)

Two stories I’ve recently covered—Fox News’s Bill O’Reilly sex harassment problem and Ernest Angley’s wage-and-hour problem—had pretty significant updates this week.

• Fox News (finally) fired Bill O’Reilly.
• Earnest Angley closed his buffet, which had for years illegally used the services of unpaid volunteers and child labor. Looks like he finally found something he could not save.

Who says there’s no justice in this world?

Here’s what else I read this week:

Working Families Flexibility Act seeks to legalize comp time in lieu of overtime

If you are a private employer, it is 100 percent illegal for you to provide employees comp time in lieu of overtime for hours worked by non-exempt employees over 40 in a work week. If a non-exempt employee works overtime, you must pay them overtime, and you violate the FLSA if you provide comp time in its place.

The Working Families Flexibility Act, introduced earlier this year in Congress, seeks to change this rule.

6th Circuit tees up decision on LGBT discrimination coverage under Title VII

The 6th Circuit is currently considering whether Title VII’s definition of “sex discrimination”.

EEOC v. R.G. & G.R. Harris Funeral Homes alleges that the funeral home fired its funeral director because she is transgender and transitioning from male to female. The Eastern District of Michigan concluded that Title VII does not expressly cover LGTB discrimination, and limited the sex discrimination claim to a sexual stereotyping claim.

The bar for what qualifies as unlawful harassment in the 4th Circuit is pretty damn high

How high is the bar for what qualifies as unlawful sexual harassment in the 4th Circuit? Pretty damn high, if you ask me. Consider that in Wilson v. Gaston County [pdf], the Court concluded that the following misconduct did not entitle the plaintiff to a jury trial on her sexual harassment claim:

2nd Circuit provides plan for employers to win misclassification cases

In Saleem v. Corporate Transportation Group (2nd Cir. 4/12/17) [pdf], the 2nd Circuit Court of Appeals considered whether a company properly classified a group of black-car taxi drivers as independent contractors, or whether it should have classified them as employees. In ruling for the company, the court gifted employers a game plan to use when classifying workers to minimize risk in making the key determination of whether a worker is an employee or an independent contractor.