WIRTW #580 (the “I voted” edition)

Have you cast your ballot for the Worst Employer of 2019? Time is running short. The polls close Tuesday, December 17, at 11 pm.

VOTE here

Once you’ve voted, please download your official Ohio Employer Law Blog “I voted for the Worst Employer of 2019” badge and share on Facebook, Instagram, Twitter, LinkedIn, etc. Please tag your post with #worstemployer2019 so that I can more easily find it and feel the love.

And don’t forget to return on December 18 when I’ll announce this year’s big winner (or loser, depending on how you look at it).

Here’s what I read this week.

Just because you’re out on FMLA does not grant you a license to threaten your co-workers

“Hey pussy … I’m going to get you for what you did.”

Ordinarily, if one employee confronts another employee with a threat like the one above, you’d consider it grounds for termination. Maurice Darby, however, claimed that the fact that he made the threat while out on FMLA leave constituted grounds for retaliation after his employer terminated him.

The 4 things you cannot do to pro-union employees (hint: number 1 is fire them)

Four former Google employees claim that their ex-employer fired them Thanksgiving week in retaliation for their efforts to organize a labor union. According to CNBC, the NLRB is now investigating the firings. For its part, Google denies that anti-union animus played any roll in the firings.

We dismissed four individuals who were engaged in intentional and often repeated violations of our longstanding data security policies, including systematically accessing and disseminating other employees’ materials and work. No one has been dismissed for raising concerns or debating the company’s activities.

VOTE NOW for the “Worst Employer of 2019” — polls are open

All year long, I’ve been sharing examples of the worst employers in America. My goal? Compile them at the end of the year and then turn it over to you, my readers, to pick the worst of the worst.

Today is your opportunity to help pick the Worst Employer of 2019.

I’ve narrowed this year’s preliminary list down to my choice for the top 10 naughty employers.

Voting will take from today until December 17, at 11 pm. You will be able to vote for up to 3 choices.

I will then tally the votes, and, announce the highest recipient as the very worthy winner of the Worst Employer of 2019.

Vote, share this post with your friends, colleagues, and social networks, and, most importantly, learn something from the mistakes of these 10 very worthy, and cringy, nominees.

The ADA never requires an employer to create a position as a reasonable accommodation

Randona Johnson took a medical leave from his position as a process coach at a Ford assembly plant to deal with back pain, hypertension, and depression. After five months of leave, Ford moved Johnson to inactive status, with no active position at the plant. Two months later, Johnson reapplied for his old job and requested certain accommodations for his various disabilities. According to Ford, however, the assembly plant had no openings at that time, as was the case each time over the next several months Johnson reapplied. Ultimately, 15 months after Johnson first took medical leave, and eight months after he first re-applied, a position opened and Ford rehired him with his requested accommodations.

Johnson sued anyway, claiming in failing to rehire him earlier Ford unlawfully denied him a reasonable accommodation.

WIRTW #579 (the “blank slate” edition)

Next Saturday, December 14, Norah and her Fake ID bandmates will be traveling west to Elyria, Ohio, to play Blank Slate, a very cool all ages, all inclusive, and substance free club. Tickets are only $5 if you buy them in advance (here) or $7 at the door.

Here’s what I read this week.

Discrimination

• Sex and the CEO — via Jonathan HR Law
• Stuffing Discrimination Complaints Into Thanksgiving? Feast on these Cases — via Dan Schwartz’s Connecticut Employment Law Blog
• There’s retaliation, and then there’s locking the complainant in a walk-in freezer. (Allegedly) — via Eric Meyer’s Employer Handbook Blog
• Ohio Fairness Act Takes Important First Step in Ohio House Committee — via Ohio Chamber Blog
• LGBTQ Rights in Employment: Does it Boil Down to the “Bathroom Use” Question Again? — via BeLabor The Point

HR & Employee Relations

• Can Music Increase Your Workplace Productivity? — via HR Gazette
• It’s Perfectly Legal to be an Asshole. — via HR Examiner with John Sumser
• How harmful thought patterns about workplace bullying and mobbing may accelerate the aging process — via Minding the Workplace
• Going Back to Work After a Pregnancy Loss — via Harvard Business Review
• How do I talk to my coworker about her body odor? — via Ask a Manager

Technology

• Facebook built a facial recognition app that identified employees — via Engadget HD
• Shaping Better Workplaces Through Social Media Screening — via Workology
• Cybersecurity in the Age of AI and Why Cybersecurity Isn’t Only a Tech Problem — via Harvard Business Review 
• An Alarming Number of Software Teams Are Missing Cybersecurity Expertise — via Dark Reading
• Seeking Insurance for Cybersecurity-Related Losses — via The D & O Diary

Wage & Hour

• Big Media Finds out that Salary Secrecy is Dead. Spreadsheets Share Everything — via Evil HR Lady, Suzanne Lucas
• Compliance with FLSA Overtime Rule Changes 2020 — via Staffing Industry Analysts
• 11th Cir.: Arbitration Clause Requiring Fee/Cost Splitting Violates the FLSA — via Overtime Law Blog

Labor

• Fired Google Employees Vow Federal Labor Complaint — via Forbes
• The NLRB Rules that Unpaid Interns Are Not Employees Under the Act — via Hunton Employment & Labor Law Perspectives™
• NLRB’s LA Specialty Produce Decision Provides More Clarity on Employee Handbook Rule Standards — via Employment Law Worldview
• Buttigieg campaign staffers join union — via CUE, Inc.

OSHA & Safety

• Workers sue McDonald’s over workplace violence — via HR Dive
• McDonalds to Train Store Employees on Mitigating & Identifying Violence — via Blogging4Jobs
• Attorney Mental Health: ‘Thanksgiving’ Isn’t Just a Holiday — via Law.com - In-House Counsel
• Erasing the Workplace Stigma of Behavioral Health Conditions — via EntertainHR
• Fifth Circuit Provides New Grounds for Employers to Pursue Late Notices of Contest to OSHA Citations — via Workplace Safety and Environmental Law Alert Blog
• How to Take Advantage of OSHA’s ‘Employee Misconduct’ Defense — via HR Hero Line
• OSHA Signals Its Regulatory Priorities in Fall Agenda — via OSHA Law Blog
• No Medical Marijuana in Ohio BWC’s Drug-Free Workplace — via Labor & Employment Law Navigator

Does it violate the ADA to work an employee in excess of a work restriction?

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center. In 2012, she injured her back outside of work, and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.