Do you really want to be the employer that bans your employees from wearing Nike products?

Last week, Nike launched its new ad campaign featuring (former) NFL quarterback Colin Kaepernick. He's most famous for being the first NFL player to kneel during the national anthem. As a result, he's become a lightning rod around our national conversation about race relations. He claims the NFL has blackballed him because of his outspokenness on the issue.

WIRTW #522 (the “back to school” edition)

If your kids go back to school and you don't post photographic evidence, does it count?

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First day of school: 7th and 4th grades. Also, I've officially entered the "Dad, you're embarrassing me" years.

A post shared by Jon Hyman (@jonhyman) on Aug 22, 2018 at 5:09am PDT

Here's what I read this week:

Compliance-by-carrot trumps compliance-by-stick

Democratic administrations are about enforcement.
Republican administrations are about education.

The endgame is still enforcement, but each side approaches this goal very differently.

This dichotomy might be an oversimplification, but, in at least in contrasting the Obama Administration to the Trump Administration, it is very true.

The FLSA's exemptions are becoming more "fair" for employers

In Encino Motorcars, LLC v. Navarro, the Supreme Court ruled that overtime exemptions under the Fair Labor Standards Act "are to be given a 'fair reading,' meaning they are not to be construed too narrowly" (as had historically been the case).

The Court applied this "fair reading" standard to conclude that automobile service advisors are exempt under the FLSA's automobile-service exemption.

Training won't fix stupid

A fast-food restaurant fired a recently hired employee after its manager learned she was pregnant.

How do we know this was the manager's reason for the termination? Because he texted it to the employee (which she later posted on Facebook).

WIRTW #521 (the “master of my domain” edition)

What's the top employee issue that makes HR folks queasy? Drugs? Sex? Pornography?

According to Robin Schooling, the worst conversation to have with an employee is about sexual self-pleasuring at work.

What's the most uncomfortable conversation you've ever had with an employee? Please share in the comments below.


Here's what else I read this week:

Does the FMLA protect organ-donation surgery as a "serious health condition?"

Organ donors are living saints. If you are in need of an organ to save your life, and someone is willing to sacrifice a kidney, or a liver segment, or bone marrow, and selflessly accept the pain and inconvenience, you are very, very fortunate.

Sacrificing one's organ to save another's life should not also result in sacrificing one's job.

Earlier this week, the U.S. Department of Labor Wage and Hour Division published Opinion Letter FMLA2018-2-A [pdf], which answers the question, "Does organ-donation surgery can qualify as a "serious health condition" under the FMLA?" (Thanks to Eric Meyer for bringing this to my attention.)

The answer is yes.

The FMLA defines a "serious health condition," in part, as an "illness, injury, impairment, or physical or mental condition that involves … inpatient care in a hospital, hospice, or residential medical care facility." "Inpatient care" means as "an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care."

According to the United Network for Organ Sharing, donors usually remain in the hospital four to seven days after the harvesting surgery. Thus, because organ donation commonly requires overnight hospitalization, it qualifies as a serious health condition covered by the FMLA.

Thus, covered employers (those with 50 or more employees on the payroll during 20 or more calendar workweeks in either the current or the preceding calendar year) must provide FMLA leave to an eligible employee-donor (someone employed for at least 12 non-consecutive months, who worked 1,250 hours during the 12-month period preceding the start of the requested leave, and who works at a location with 50 or more employees within a 75-mile radius).

What if, however, you are not an FMLA-covered employer? Or the employee-donor is not FMLA eligible? Or they already used up their 12 weeks of FMLA leave? Think twice before you deny requested time off for organ donation.

• Many states have their own specific organ-donor leave laws that require leave above and beyond the FMLA.

• The ADA may require that you grant the time off with, or without, the FMLA or state-specific law. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Nevertheless, the ADA mandates that an employer avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

Is it inconvenient for an employer to provide time off to any employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of a leave request for the selfless act donating an organ to save another's life? Absolutely not. While such a decision is likely illegal, it's also undoubtedly inhuman. And it's that inhumanity that will cost your company dearly in front of a judge or a jury.

* Photo by Tim Gouw on Unsplash