Apparently the labor rights of strikers trump the non-harassment rights of employees

There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees.

• “Hey, did you bring enough KFC for everyone?” 
• “Go back to Africa, you bunch of f***ing losers.”
• “Hey anybody smell that? I smell fried chicken and watermelon.”

A gold star for you if you answered a picket line, when the comments are made by striking workers and are directed at a group of replacements crossing said picket line. Or at least this is the majority finding of the 8th Circuit Court of Appeals in Cooper Tire & Rubber Co. v. NLRB [pdf].

Diversity is not an ideology

By now, you’ve likely heard about the male Google employee (James Damore) who circulated within the company a 10-page memo entitled, “Google’s Ideological Echo Chamber.” In this memo, he critiqued Google’s efforts at maintaining gender diversity within the ranks of its employees, arguing that women are underrepresented in tech not because of workplaces biases and discrimination, but because of inherent psychological differences between the sexes.

Avoid “FLSA roshambo” to win off-the-clock overtime claims

Defending claims for off-the-clock work is one of the most difficult tasks employers face under the Fair Labor Standards Act. An employee (or worse, group of employees) says, “I (we) worked, without compensation, before our shift, after our shift, or during our lunch; pay me (us).” Often, these employees have their own personal, detailed logs supporting their claims. And the employer has bupkis. It then must prove a negative (“You weren’t really working when you say you were”), which places the employer in a difficult and often unwinnable position. It’s a wage-and-hour game of rock-paper-scissors, where paper always beats air.

When we last examined Allen v. City of Chicago—a case in which a class of Chicago police officers claimed their employer owed them unpaid overtime for their time spent reading emails off-duty on their smartphones—an Illinois federal court had dismissed the claims, holding that most of the emails were incidental and non-essential to the officers’ work, and, regardless, the employer lacked specific knowledge of non-compensated off-duty work.

Last week—in what is believed to be the first, and only, federal appellate court decision on whether an employer owes non-exempt employees overtime for time spent off-duty reading emails on a smartphone—the 7th Circuit affirmed [pdf].

Listen to me on the Talent10x podcast discuss the current state of LGBTQ discrimination

I have enjoyed a long and fruitful relationship with Workforce Magazine. I’ve been blogging at workforce.com for the past five-plus years. I write a monthly column for the magzine. And, I serve on its editorial advisory board. Now, you can also add “podcaster” to my Workforce CV.

WIRTW #470 (the “lot was rocked" edition)

’Nuff said.

Here’s what I read this week:

Would you let your employer microchip you?

Our family dog, Loula, is microchipped. Our vet offered it to us as a service when Loula first joined our family. It provides some peace of mind in the sad event that Loula goes missing and ends up in a shelter or vet office. They would be able to read the rice-grain RFID chip embedded in her leg, discover that she belonged to us, and return her.

Loula, however, is a dog, she’s not an employee. Which is why I’m troubled that a Wisconsin employer has decided to offer microchip implants as a “service” to its employees.

Is joint employment the issue that unites our divided government?

I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls of Washington D.C.

This issue—joint employment, via the Save Local Business Act [pdf], which clarifies that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers.