Supreme Court puts the breaks on the narrow constructions of FLSA exemptions

Photo by Coolcaesar (Own work),
via Wikimedia Commons

Yesterday, in a narrow 5-4 decision, the Supreme Court held that automobile service advisors are exempt from the FLSA’s overtime requirements.

The exemption applies to “salesmen … primarily engaged in … servicing automobiles.” The majority broadly defined these terms to hold that the plaintiffs were exempt.

And while this aspect of the decision is interesting to automobile repair shops and car dealerships, it's the opinion’s broader implications that are more interesting to me.

The 6th nominee for the “worst employer of 2018” is … the sadistic sergeant

Thomas Schiermeyer was already a recruit for the Seaside Park, New Jersey, Police Department, when he applied to the Police Academy for a promotion to an entry-level Officer. 

The application process he alleges in his lawsuit is one that I’ve certainly never seen before, and one to which no employee ever should be subjected.

Don’t sleep on verifying reasonable accommodations

Photo by Nathan Dumlao on Unsplash

George Hirmiz, a front-desk clerk at a Travelodge Hotel, was caught on video sleeping in the hotel lobby while a fight broke out among its guests. After the hotel fired him, he claimed disability discrimination. His disability? An alleged illness that he had contracted from long-term exposure to high levels of electromagnetic voltage at the hotel.

The 7th Circuit had little difficultly affirming the dismissal of his lawsuit:

What does it mean to have “work/life balance”?

What’s your definition of “work/life balance”?

To me, work/life balance means that I have the flexibility to tend to the needs of family when the need arises, and otherwise work when and where I am able.

• No school bus this morning? I’ll get to the office at 9 am instead of 7:15.
• Doctor’s appointment? No worries. I’ll leave the office at 3 and finish up what needs to be done tonight.
• Bad weather? It’s not productive to waste two hours in traffic. I’ll work from home.
• Early evening gig for the kids? I’ll pick them up from school.

Let’s all try to remember to have gender-neutral employment policies

Photo by NeONBRAND on Unsplash

Former New Orleans Saints cheerleader Bailey Davis has filed a complaint with the EEOC accusing her former employer of having one set of rules for its male players, and another for its female cheerleaders.

The Saints fired Davis after it claimed she violated a rule prohibiting cheerleaders from appearing in photos nude, semi-nude, or in lingerie. She had posted a photo of herself in a one-piece outfit to her private Instagram.

OSHA resources to protect healthcare workers

Photo by Natanael Melchor on Unsplash

You might think that construction workers or manufacturing employees have the highest rate of workplace injuries. To the contrary, however, it’s healthcare workers.

On average, U.S. hospitals recorded 6.8 work-related injuries and illnesses for every 100 full-time employees, nearly twice the rate for private industry as a whole. The numbers are even higher for nursing and residential care facilities.

The most typical injuries include overexertion and repetitive stress; slips, trips, and falls; contact with objects; workplace violence; and exposure to harmful substances (including needle sticks).

Thankfully, if you are healthcare employer, OSHA has myriad publications to help.

WIRTW #499 (the “boarding house” edition)

The first time I ever heard of Jack White was August 10, 2001. I read about this up and coming band playing at the Beachland Ballroom. It was two-piece, the “brother” playing guitar and singing, and the “sister” on the drums. I was intrigued enough to check them out. Memory tells me that the first song Jack and Meg played that night was “Dead Leaves and the Dirty Ground.” Setlist.fm says it was “Let’s Shake Hands.” It doesn’t matter. After one song, I was completely hooked, and by the end of their set I had found a new artist to add to my musical pantheon.

Today, Jack White released his latest album, Boarding House Reach. Like everything he does, it rocks. It’s also brilliantly bonkers. Jack White is the mad scientist of 21st century rock ‘n’ roll. Like Bowie before him, Jack does an amazing job of changing things up from project to project, and this one does not disappoint.

Give it a listen:


Here’s what I read this week:

Ohio Chamber of Commerce takes the lead on fighting addiction at work with launch of its Employer Opioid Toolkit

Nearly 50,000 Americans lost their lives to opioid-related overdoses in 2016. Compare that figure to the HIV/AIDS epidemic, which recorded 43,000 deaths during its peak in 1995, or the entire Vietnam war, which saw 58,000 U.S. soldiers die.

Needless to say, our opioid problem is a national epidemic. And, Ohio sits right on the front lines, with the 3rd highest rate of annual opioid-related deaths, trailing only West Virginia and New Hampshire.

My state, however, is not taking this problem sitting down. Last week, the Ohio Chamber of Commerce launched its Employer Opioid Toolkit.

How can you transition older workers if you can’t force them to retire?

A Michigan oral surgery practice has agreed to pay $47,000 to settle an age discrimination lawsuit filed by the EEOC. The agency alleged that it violated the ADEA by maintaining a policy that required employees to retire at at 65. The lawsuit stemmed from the firing of an employee four days after her 65th birthday.

According to Kenneth Bird, regional attorney for the EEOC’s Indianapolis District Office, “December 2017 marked the 50th anniversary of the ADEA, Five decades later, the EEOC remains committed to vigorously enforcing that all-important law. Private employers need to understand that mandatory retirement policies run afoul of the ADEA and will be met with challenge.”

He’s absolutely correct.

I’m lovin’ it: McDonald’s settles joint employer case with NLRB

It has been nearly four years since the NLRB filed complaints against McDonald’s, seeking to hold it liable as a joint employer for the unfair labor practices of its franchisees. I have suggested that “if franchisors are equal under the National Labor Relations Act with their franchisees, then we will see the end of staffing agencies and franchises as a viable business model.”

In the interim, the NLRB has flip-flipped on its joint employment standard several times, and this very important area of the law has been in flux.

Now comes word that the NLRB and McDonald’s have reached an 11th hour settlement.

The 5th nominee for the “worst employer of 2018” is … the pension preventer

ERISA section 510 provides:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan … or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.

The Supreme Court has long interpreted this section as “protect[ing] plan participants from termination motivated by an employer’s desire to prevent a pension from vesting.” As the 6th Circuit noted, “[T]he prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.”

Late Friday, Attorney General Jeff Sessions fired former FBI Deputy Director Andrew McCabe late Friday. McCabe was (almost) a 21-year veteran of the Bureau, and was to have retired just two days later. The March 16 firing, however, prevented McCabe both from voluntarily leaving the FBI and collecting his federal pension.

WIRTW #498 (the “blarney” edition)

Photo by Khara Woods on Unsplash

Tomorrow is St. Patrick’s Day. Have you ever thought about what the Patron Saint of Ireland can teach us about employment-law compliance? I did, seven years ago.

Click here for 10 compliance challenges to chase out of your workplace.

Here’s what I read this week:

Harassment training is about creating a culture, not checking a box

Bloomberg reports that demand for anti-harassment training videos has surged in the #MeToo era.

Here’s the problem, however. The Bloomberg article talks about training videos, the absolute worst kind of training.

Anti-harassment training is all about creating an anti-harassment culture in your workplace—about employees understanding what harassment is, how to complain about it, and that your company does not ever accept it.

How your problem employee is like an old hot water tank

Last night, my hot water tank died. It was old (14, to be exact).

During his shower, I heard Donovan yell, “Dad, there’s no hot water, and I’m freezing!” On a hunch, I traveled down to the basement, which is where I found puddles on the floor under and around the tank.

To be fair, we ignored a whole bunch of signals over the past few years. 

Fluctuating water temperatures. A 50-gallon tank that would often deplete in a half-hour. Neighbors that had replaced theirs years ago. 

Which got me thinking … an old hot water tank is not all that different from your problem employee.

Tattoos at work: more acceptance, yet still some legal risk

By ABC TV [Public domain],
via Wikimedia Commons

I am not a tattoo person. Yet, a whole lot of people are. And the numbers are increasing.

In fact, according to one recent survey, 3 in 10 Americans have at least one tattoo, up 50% in just four years. And, the younger you are, the more likely you are to sport a tattoo: 47% of millennials have a tattoo, as compared to 36% of gen Xers and only 13% of baby boomers.

Department of Labor trying to get employees PAID for inadvertent FLSA violations

Photo by Sharon McCutcheon on Unsplash

For almost as long as I’ve been writing this blog, I’ve been preaching the proactive benefits of wage and hour audits for employers (e.g., here and here).

It appears that the Department of Labor agrees.

Last week, it announced a nationwide pilot program—the Payroll Audit Independent Determination (PAID) program—which will permit employers to self-report FLSA violations to the Department of Labor without risk of litigation or enforcement proceedings. It enables employers to resolve inadvertent minimum wage and overtime violations without litigation.

WIRTW #497 (the “love” edition)

For the past 496 Fridays (plus a few off here and there) I have shared my list of what I read this week.

Implicit in each share is my recommendation that among those links are a few that you should read, too.

This week, however, there is only one thing you should (must) read.

Kevin Love, all-star power forward for the Cleveland Cavaliers, wrote about his life-long mental health issues.

6th Circuit is the latest court to conclude that Title VII expressly prohibits LGBT discrimination

Photo by Sharon McCutcheon on Unsplash

Yesterday, the 6th Circuit Court of Appeals joined a growing number of federal appellate courts to hold that Title VII’s prohibition against sex discrimination expressly covers LGBT employees.

The claimant in EEOC v. R.G. &. G.R. Harris Funeral Homes [pdf], Aimee Stevens (formerly known as Anthony Stephens) was born biologically male, and presented as such when hired. The funeral home’s owner and operator, Thomas Rost, fired her shortly after she informed him that she intended to transition from male to female and would represent herself and dress as a woman while at work.

“Measure twice, cut once," and, for the love of God, don’t email porn to everyone on your company’s contact list

Photo by Wes Hicks on Unsplash

In what may be the greatest (or, depending on your perspective, worst) employee mistake of all time, the Utah State Bar emailed a photo of a topless woman to more than 11,000 of its members.

For its part, the Bar has apologized, and has said it is investigating how the incident occurred and will publicize its findings.

Speculation on the cause of the unfortunate email ranges from hackers to a disgruntled employee.

It’s neither.

Readers, let me break this case for you.

The legal implications of employee tracking devices

Photo by N. on Unsplash

I once knew of company (not a client) at which its CEO would sit in his office all day and watch a bank of monitors connected to cameras all over the workplace so that he could track the productivity of his employees. He even had one outside the bathrooms to record how frequently, and for how long, his employees were taking potty breaks. Needless to say, morale among his employees was not great.

Monitoring of employees has gone even more high tech. The Chicago Tribune reports that Amazon has developed wristbands to track worker hand movements as they fill and ship orders in its warehouses and distribution centers.