Muckenfuss makes a mask fuss

Michael Muckenfuss worked in maintenance at a Tyson Fresh Meats facility. When the Covid-19 pandemic began, the town's mayor instituted an executive order mandating the wearing of masks, which Tyson enforced inside the workplace. Muckenfuss presented Tyson with a note from his health care provider requesting that he wear a cloth mask with a filter instead of a surgical mask as a reasonable accommodation for his asthma. Tyson agreed to the accommodation. Muckenfuss later sued, however, claiming that Tyson kept the mask mandate in place, along with his filtered mask, after the Covid executive order expired.  

He brought his claim not under the ADA, but under a provision of the Indiana Code that prohibits an employer from requiring as a condition of employment that an employee implant, inject, ingest, inhale, or incorporate an acoustic, optical, mechanical, electronic, medical, or molecular device into their body. Muckenfuss claimed that the face mask qualified as a such a device, and that Tyson violated the statute by requiring that he wear it on his face. 

The trial court had little difficulty in dismissing this claim.

This statute was aimed to prohibit the introduction of a device "into" the body. Wearing a mask on one's face isn't that.… Mr. Muckenfuss invites an interpretation that would render this statute absurd.… [H]is interpretation would suddenly prohibit all sorts of sensible mandates by employers. No longer could a company require a bleeding employee from wearing a bandage or band-aid "against" his wound. No longer could a company require an employee to wear a protective glove, or work boots, or goggles, or many types of personal protective equipment because they were likewise designed to be used "against" the body.

As this case illustrates, any employee can sue their employer for some alleged legal violation for just about any employment decision. The issue isn't whether you can be sued, but whether the decisions you made put you in the best position to defend that lawsuit if and when it comes.

How to conduct a layoff

Elon Musk did everything wrong with his employees upon his acquisition of Twitter, including laying off half of them via email. With the economy turning sour, more businesses will be facing the stark reality of having to shed headcount. If you need to layoff some of your employees, do you know what to do? Here are four tips (excluding bonus tip number 5 — call your employment lawyer).

VOTE!

Growing up, I loved Election Day. My elementary school was a polling place, which meant that I got the day off from school. My parents would take me with them into the school auditorium where all of the voting machines were lined up down front. 

As much as I loved Election Day, I also loved the old school voting machines used. Each came with a giant red lever that you'd slide to the right to close the curtain behind you and slide again to the left to record your ballot when finished and open the curtain. I can still hear the sound of that lever clanking into place echoing through the Loesche Elementary School auditorium, a sound that I will forever equate with democracy at work.

Would you fire this employee?

Over the weekend, I asked a simple question on LinkedIn: "Would you fire this employee?"

The employee in question took to LinkedIn to celebrate Elon Musk's dismantling of Blackbirds. Blackbirds was an Employee Resource Group for Black Twitter employees to support them, foster their development, and provide them a safe space within the company.

WIRTW #649: the “Ye” edition

We need to talk about Kanye. 

In the wake of his rampant and unapologetic antisemitism, people are hanging antisemitic banners on highway overpasses and projecting antisemitic slogans on the side of college football stadiums, others are dressing up like Hitler and other Nazis for Halloween, and famed Covid-denier and flat-earther Kyrie Irving is sharing a movie full of antisemitic tropes. 

Employers need to take a firm stand against hatred. Now is not the time to stand idly by. 

Anti-Semitism is wrong. 

White supremacy is wrong. 

Racism is wrong. 

Xenophobia is wrong. 

Homophobia, lesbophobia, biphobia and transphobia are wrong. 

Hard stop. 

Anyone displaying this hate, whether inside or outside of work, should be fired. 

Any idiot is free to say whatever he or she wants. But as an employer, I am free to hold that idiot accountable for his or her ignorant hatred. Actions have consequences, and until we start holding people accountable for theirs, we are signaling that this is okay, that this is normal. It's far from okay or normal. It's disgusting and deplorable. 

Silence in the wake of hate at best condones the hate, and at worst participates in it. If it's my business, I choose not to stay silent.

Here's what I read/listened to this past week that you should also read/listen to:

The 13th nominee for the “Worst Employer of 2022” is … the slaughtering supervisor

There's retaliation … and then there's murder. 

A federal court jury recently returned a unanimous guilty verdict against Juan Rangel-Rubio for murdering a whistleblower who exposed a multi-million-dollar scheme to fraudulently employ undocumented workers. His two co-defendants—Rangel-Rubio's brother, Pablo, and Higinio Perez-Bravo—await sentencing after pleading guilty for their role in the murder conspiracy. 

If your surveilling employees, the NLRB is watching you

Wearable trackers. Security cameras. GPS trackers. Keyloggers. Live webcam monitoring. Technology has made it easier for employers to monitor and manage their employees' productivity and discipline employees who fall short of expectations. Moreover, technology makes it possible for employers to continue tracking employees after the workday ends via employer-issued cellphone or wearable devices, and apps installed in employees' own devices.  

Employers are monitoring employees, and the NLRB is monitoring employers' use of these monitoring technologies.

NLRB General Counsel Jennifer Abruzzo just issued a memo on Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.