WIRTW #451 (the “Graveyard Whistling” edition)

Thank god we got these guitars.

In this devil of world.

Turn it up make a little noise. 

– Old 97’s, “Irish Whiskey Pretty Girls”

So declare the Old 97’s on one of the more raucous tracks on their latest album, Graveyard Whistling, the band’s 11th studio effort. I’ve been turning it up and making noise since its release one week ago.

President Trump utters the phrase “paid family leave,” but what does it mean?

My administration wants to work with members in both parties to make childcare accessible and affordable, to help ensure new parents have paid family leave.

These were the words of President Trump during his joint address to Congress this past Tuesday night. While the administration has said little else about this “paid family leave” plan, Ivanka Trump, who has made this a priority to address in her dad’s administration, has given us some insight.

U.S. Chamber calls for common sense restoration of the NLRB … and I couldn’t agree more

To say that I have not felt overly optimistic about our nation’s course over next four years would be a bit of an understatement. One area, however, about which I am very optimistic is the expected retooling of the National Labor Relations Board.

This week, the U.S. Chamber of Commerce’s Workforce Freedom Initiative published a comprehensive report outlining the areas of federal labor law that the NLRB must address to restore balance to the workplace.

Can a hug create a hostile work environment? According to this court, yes.

Edward Prieto, the sheriff of Yolo County, California, likes to hug his co-workers … a lot. According to Victoria Zetwick, a county correctional office and the plaintiff in Zetwick v. County of Yolo (9th Cir. 2/23/17) [pdf], during the 12 years they worked together, Prieto hugged her hundreds of times. Zetwick also claimed that during that same time frame, Prieto hugged several dozen other female employees, but never male employees. Others, however, testified that Prieto also hugged me, just not as frequently as women. Zetwick alleged that a result she found it difficult to concentrate, and that she was constantly stressed and anxious about Prieto’s touching, which she believed had sexual overtones.

I birthed a rock star

On Friday, Rhett Miller, lead singer of my favorite band, the Old 97’s, and undoubtedly one of the good guys, held a Reddit AMA. I asked him what he knows now that he wishes he knew when he started in the music business over 25 years ago. His answer included this gem:

The important thing is that THE WORLD NEEDS MUSIC. And there will always be folks (like your sweet daughter) who will make that music!

Saturday night, my sweet daughter made that music, and then some.

Norah (age 10)

WIRTW #450 (the “Kurt” edition)

Earlier this week, Kurt Cobain would have turned 50 years old. Uncoincidentally, also earlier this week Norah stepped in for an absent bandmate to sing lead on the song that made Kurt Cobain and Nirvana a household name, “Smells Like Teen Spirit”. I think Kurt would have approved.

And some video - Smells Like Teen Spirit. Love the energy and how much fun the kids are having on stage.

A post shared by Jon Hyman (@jonhyman) on Feb 20, 2017 at 4:01am PST

This Saturday night, I’ll be at the Rock & Roll Hall of Fame, watching this band kill it in front of thousands as part of the High School Rock Off Final Exam. They are scheduled to hit at 9:25. Tickets are only $12, and include admission to the Rock Hall. It a great night watching the best the area’s school-aged musicians.

Here’s what I read this week.

What’s good for the goose … NLRB protects employee’s Facebook post critical of his union

It won’t take much searching through the archives to find posts discussing the NLRB’s protections for employees’ Facebook posts critical of their employers (here, for example). Protected speech under the NLRA, however, cuts both ways. Section 7 not only protects anti-employer comments, but also anti-union comments. Thus, it would make sense that the NLRB would conclude, as it recently did in International Union of North America, Local Union No. 91 [pdf], that section 7 protects an employee who posts on Facebook comments critical of his labor union.

“If I could press a button and instantly vaporize one sector of employment law?” (redux)

Nearly six years ago, Walter Olson, writing as his Overlawyered blog, asked the following question:

“If I could press a button and instantly vaporize one sector of employment law…”?

This was my answer:

"A Day Without Immigrants" protests followed by days without work for fired employees

Last Thursday, in protest against President Trump’s immigration policy, people nationwide participated in “A Day Without Immigrants.” As part of the protest, many businesses closed their doors to show what our nation would look like without immigrants. In addition, many immigrants simply did not go to work.
As a result, many now find themselves unemployed.

Paw-ternity leave is a great idea, but please don’t forget about us humans

This is Loula, our vizsla.

We love our dog. And, when we brought her home four summers ago, it was a great benefit to our family that my wife had yet to return to work. She was home for Loula’s first two months, to acclimate her to our house and family. What if, however, you lack the luxury of not working during your puppy’s first few weeks at home?

BrewDog, a Scottish brewery set to open up in Columbus this Spring, has your answer—paw-ternity leave.

WIRTW #449 (the “do-over” edition)

Whether you are left or right, blue or red, liberal or conservative, Democrat or Republican, it’s hard to argue that the first 28 days of POTUS 45 have been anything other than a dumpster fire. It culminated over the past 48 hours with Trump’s bizarre press conference, and withdrawal of his nominee for Labor Secretary, Andy Puzder.

And then Trump did something amazing. He nominated someone eminently qualified to run the Department of Labor. Alexander Acosta will become the next Secretary of Labor. What do you need to know about Secretary-to-be Acosta?

• He served a well regarded term on the National Labor Relations Board from from 2002 to 2003.
• He is a former Assistant Attorney General for the Civil Rights Division of the Department of Justice, where, among other acts, he defended the civil rights of American Muslims.
• He is a former Supreme Court clerk and former U.S. Attorney
• He is currently a law school dean.
• Once confirmed, he will become the first Hispanic-American member of Trump’s cabinet, bringing some much needed diversity to the table.

Mr. Acosta should sail through the confirmation process. 

Bravo, President Trump. You and I have had a rough four weeks. This decision, however, is exemplary. Can you please make more decisions like this one?

Here’s what I read this week:

Andy Puzder, Trump’s pick for Secretary of Labor, withdraws

Late yesterday, news broke that Andy Puzder, Donald Trump’s pick for Secretary of Labor, had withdrawn his name from consideration, just one day before his oft-postponed confirmation hearing was to take place.

The 4th nominee for the “worst employer of 2017” is … the callous non-accommodator

This is Michael Trimble.

Originally from Ukraine, Michael was born without arms as a result of birth defects resulting from the Chernobyl nuclear disaster. He rides a modified bike designed specifically for him and his disability. He is extraordinarily inspirational.

He is also now unemployed.

Valentine’s Day at work

I am a Valentine’s Day scrooge. Yet, for someone who goes out of his way to avoid this forced and commercialized celebration of love, I’ve sure written about it a lot over the years. So, for today’s post, let’s take a jaunt back through the February 14(ish) archives, to examine the intersection of V-Day and the workplace.

Will new EEOC Chair usher in sweeping changes?

With a change in administrations comes a change at the head of various federal agencies, including the Equal Employment Opportunity Commission. The agency’s new chairperson, Victoria Lipnic, an EEOC Commissioner since 2010, is a Trump appointed Chairperson. So, with an eventual Republican-majority EEOC, will she undo the pro-employee policies of the Obama Democratic majority EEOC of the past eight years?

WIRTW #448 (the “promo” edition)

On February 22, I will be co-presenting a free CLE-eligible webinar for LexisNexis, entitled, “Employment Law: Five Areas to Watch in 2017.” The webinar runs from 2 - 3:35 pm EST.

My topics are LGBT discrimination claims and NLRB for non-union companies. I will also chime in on the other three topics (wage-and-hour, FMLA, and cyber security). It promises be be an excellent event.

Did I mention it’s free? Registration is open and available here.

Here’s what I read this week:

“It’s not fair”

Watch this, and then let’s talk about the word fair.

Is your company protected from insider cyber threats?

I’ve previously suggested that your employees are your company’s weakest link, and therefore, your greatest threat to suffering a cyber-attack and resulting data breach. While employee negligence (that is, employees not knowing or understanding how their actions risk your company’s data security) remains the biggest cyber risk, another is growing and also demands your attention—the malicious insider.

Dark Reading reports on a recent survey, entitled, “Monetizing the Insider: The Growing Symbiosis of Insiders and the Dark Web.”

How to defend *not* granting leave as a reasonable accommodation

Medical leaves of absence continue to confound employers. Under the ADA, an employer must consider an unpaid leave as a reasonable accommodation. An unpaid leave of some limited duration, however, will be reasonable in most cases.

When is an employer free to deny an employee’s request for a leave as an ADA accommodation? Let’s examine Williams v. AT&T Mobility Services (6th Cir. 1/27/17) for an answer.

The 3rd nominee for the “worst employer of 2017” is … the direct discriminator

Our next nominee for the Worst Employer of 2017 is the defendant in Mayes v. WinCo Holdings (9th Cir. 2/3/17) [pdf]—WinCo, a Bosie, Idaho, supermarket chain.

The plaintiff, Katie Mayes, a night-shift supervisor, was fired for taking a stale cake from the store bakery to share with fellow employees after management allegedly gave her permission to do so. That, however, is not what earned WinCo the nomination. Instead, it’s what the court found Mayes’s direct supervisor expressed about her (yes, her) belief about a woman running the night-shift: