When losing is really winning: SCOTUS rules in favor of bakery in gay wedding cake dispute, but…

A lot of digital ink has been spilled in the last day decrying the Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission as a win for the religious right and a step backward for LGBT rights. I was guilty of a little Twitter hyperbole myself after a quick first scan of the opinion.

Also, this does not give me a ton of hope that #SCOTUS will get LGBT employment issues right when that issue reaches them.

Then I sat down and read the opinion.

The greatest book ever written about labor relations is…

Last week I came across an article entitled, “Business Wisdom From 10 Classic Children’s Books.” Its premise is that books with the simplest language often contain the most complex ideas, and that children’s books offer us a whole lot of real-world business wisdom.

I was surprised, then, when I discovered that this list omitted the number one book ever written about labor relations—Click Clack Moo, Cows That Type.

WIRTW #508 (the “last day of school” edition)

Today is the last day of school. My almost 7th grader is so ready for summer break. Call it middle school burnout. My almost 4th grader? Not so much. He’s already prepped me for a waterfall of tears and dragging him out of school later this morning. At least he looked happy waiting for the bus.

Here’s what I read this week:

Everything you need to know about shredding documents when faced with litigation: DON’T DO IT

If you are accused of destroying evidence, and the federal judge ruling on the motion starts his opinion by quoting a John Hiatt song called “Shredding the Document,” you are in for a very, very bad litigation day.

This is exactly what happened to GMRI, Inc., the defendant in an age discrimination lawsuit brought by the EEOC in Miami, Florida. GMRI owns Seasons 52 restaurants, and if that name sounds familiar, it’s because it was my 8th nominee for the “Worst Employer of 2018.”

Who is Otis Burke?

By now you’ve almost certainly heard about ABC’s cancellation of Roseanne, after Roseanne Barr posted a racist tweet about Valerie Jarrett, President Obama’s former senior advisor.

Today, a lot of internet ink will be spilled about ABC’s swift and decisive reaction to cut the head off any potential controversy, how private-sector employees lack free speech rights at work, and why Roseanne’s after-the-fact excuse that she was Ambien-tweeting is irrelevant.

I’d like to come at this from a different angle—all of the individuals who are now unemployed because Roseanne Barr said something racist and offensive and stupid.

Including Otis Burke.

Court says that discretionary bonus cannot be the “quo” for the sexual harassment “quid”

Quid pro quo is Latin for “something for something.” In employment law, it’s a specific theory of sexual harassment—“If you do this ‘thing’ for me, I’ll do something for your job.”

In Davenport v. Edward Jones & Co., the 5th Circuit held that a allegation of an unpaid bonus might not be enough to support an ex-employee’s sexual harassment claim under a quid pro pro theory.

WIRTW #507 (the “12” edition)

Sunday is my daughter’s 12th birthday.

Happy birthday, Norah!

It's not easy being a pre-teen these days, especially as a girl. I know 11 was a hard year. And I can’t promise 12 (or 13, or 14…) will be any easier. Know that we love you, we are very proud of you (even when we’re giving you a hard time — clean your room 😉), and we are here for you no matter what, always.

Now go rock the rest of your years like you rocked the first 11.

Here’s what I read this week:

The 9th nominee for the “worst employer of 2018” is … the raging retaliator

Today, I take you to lovely Riverside County, California, home of Palm Springs, Joshua Tree National Park, the Coachella Music Festival … and the 9th nominee for the Worst Employer of 2018.

Until his termination on May 7, 2018, Andrew Yeghnazar had, since 2010, worked as the President of Blacoh Fluid Control, Inc.

What did Blacoh Fluid Control (allegedly) do to earn its nomination?

Can (or should) OSHA regulate the NFL?

Sports blog Deadspin asks: What If The NFL Were Regulated By OSHA?

Well, Deadspin, I’m glad you asked. I answered this very question over three years ago.

SCOTUS decision on class action waivers is not the epic win for employers it may seem to be

Yesterday, in a narrow, 5-4 partisan decision, the Supreme Court issued its most anticipated employment decision of its current term, Epic Sys. Corp. v. Lewis [pdf]. The Court reconciled six years of debate between split federal circuits into a unified standard that permits the waiver of class actions via the compelled individual arbitration of employment disputes.

Harassment prevention MUST start at the top

If you did not watch 60 Minutes last night, you should. The last segment detailed pervasive and rampant sexual harassment by famed chef and tv personality Mario Batali.

And it laid much of the blame at the feet of the CEO of one of the restaurants in which Batali invested, The Spotted Pig, and its owners, Ken Friedman and April Bloomfield. The segment argues that Friedman and Bloomfield turned a blind eye to years of Batali’s sexual harassment of the female employees of their restaurant, and knowingly allowed it to continue.

WIRTW #506 (the “car … scratch … melt …” edition)

What’s your security blanket? That place you go when your soul needs a hug?

Mine is music.

Today, my security blanket grew a few sizes, because Peter Gabriel finally added his catalog to Spotify.

For many, their entrée to Peter was John Cusack, boombox aloft in Say Anything. My exposure was a half-decade earlier. Growing up in Philadelphia, I started each morning listening to John DeBella’s Morning Zoo on WMMR. And Peter Gabriel was its patron saint. So I was exposed to a lot of PG’s music in my formative years. My love for his art has never waned, even as my tastes have evolved in the decades since.

This morning, I could not wait to get in my car, plug in my phone, and fire up PG 1 (aka “Car”). I felt the slowburn of comfort as Peter sang about Moribund the Burgermeister (a decidedly dark tune about Sydenham’s chorea, historically and traditionally referred to as Saint Vitus‘ dance, a disorder characterized by rapid, uncoordinated jerking movements primarily affecting the face, hands and feet).

Don’t get me wrong; I love discovering new music (check out Courtney Barnett’s Tell Me How You Really Feel, out today). But when I need that security blanket, I always turn to the old favorites.

Here’s what I read this week:

What should you do when ICE comes knocking

“Hi, I’m your friendly neighborhood Immigration and Customs Enforcement officer. Do you mind if I come in and take a quick look at your I-9 forms”

Yesterday I discussed the nuts and bolts of the I-9 form. Today, let’s take a look at what happens when Immigration and Customs Enforcement (ICE) audits your I-9 compliance.

7 things employers must know about the I-9 Form

Photo by Nitish Meena on Unsplash

Earlier this week, the Trump administration announced that it has doubled the number of worksite investigations and audits conducted by Immigration and Customs Enforcement. Its express goal is to make sure businesses are not employing people who are in the U.S. illegally.

What is such an audit? Simply, it’s a review of business records, specifically I-9s.

In light of this news, over the next two days I’ll be taking a deeper look at employers’ obligations to comply with immigration laws. Today, we’ll examine the I-9 itself, and tomorrow we’ll discuss what to do (and, maybe more importantly, what not do) if ICE or another agency shows up at your door asking about I-9s.

The easiest way to lose an employment lawsuit

Photo by Devin Avery on Unsplash

Yeterday, I was tagged with the following question on LinkedIn:

Interested in your opinion on this.

The “this” in question was an $7.97 million verdict a jury in Fresno, California, entered in favor of a Chipotle manager fired for allegedly stealing $626 in cash from the restaurant’s safe.

The ADA’s interactive process is always a two-way street

Photo by MelanieSchwolert via Pixabay

Who has the burden of proof in an ADA reasonable accommodation case? The employee, to prove a lack of an accommodation, or the employer, to prove the unavailability of an accommodation? 

In Snapp v. BNSF Railway, the 9th Circuit Court of Appeals re-affirmed that the burden squarely rests on the shoulders of the employee.

WIRTW #505 (the “birthday” edition)

This week I celebrated two milestones.

On May 9, the Ohio Employers Law Blog turned 11 (and after 11 years I finally dropped the apostrophe; grammarians, debate).

The day prior, Loula, our beloved family pet, turned 6.

Six is a milestone age for a dog in my family. I’ve never had a dog live this long. Flyer, my beagle, passed away at 5 from autoimmune hemolytic anemia. Zoey, our lab (and our “let’s get a dog before we have kids” dog), also passed away at 5 (you can read my obituary for her here).

Thus, we’ve waited with nervous anticipation for Loula to reach the age of 6, which she did on May 8.

It was certainly a day to celebrate. She kicked back with a dog-friendly cupcake (complete with candle, and which, for the record, my wife said tastes awful), while we humans ate ice cream and serenaded her with “Happy Birthday.”

Here’s what I read this week:

NBC News takes the unprecedented step to release its internal Matt Lauer harassment report

Image by Max Goldberg via Wiki Commons

Yesterday morning, NBC News released the complete report into its months long investigation of Matt Lauer.

I was astounded by NBC’s transparency. It is extraordinarily rare for a private company to release an internal investigative report of one of its employees. In fact, it runs counter to conventional wisdom that harassment investigations should be kept as confidential as possible under the circumstances. Perhaps the combination of NBC’s status as a news agency and the high profile nature of the allegations spurred its decision.

Sympathetic does not always equal protected under the ADA

Photo by Pexels on Pixabay

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.

When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

Should employers still test for marijuana?

Photo by Michael Fischer from Pexels

Ohio’s medical marijuana program is set to be fully operational by September 2018. Ohio will join 28 other states, and the District of Columbia, in which doctors can legally prescribe marijuana to treat certain medical conditions.

Ohio’s medical marijuana law does not require that employers accommodate employees’ lawful use of medical marijuana. It also permits employers still to maintain drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

Yet, with the lawful use of marijuana spreading, employers are asking if it still makes sense to test for it as part of pre-employment drug screenings.