Juicing the reasonable accommodation low-hanging fruit

Would you rather spend seven figures to lose a lawsuit, or $1.69 to allow a diabetic employee to drink a bottle of orange juice?

The answer should be pretty clear.

Or maybe not?

Despite what one court held, workplace discrimination laws DO protect employees from non-employees

Pop quiz: Can an employer ignore harassment or other discriminatory behavior directed at employees by non-employees?

If your answer is "yes," you'd be in agreement with the court in Shaw v. Access Ohio (Ohio Ct. App. 7/27/18).

You'd also be dead wrong.

On religious liberty vs. workplace discrimination laws

Last week, Attorney General Jeff Sessions announced the creation of a "Religious Liberty Task Force" It will enforce a 2017 DOJ memo that ordered federal agencies to take the broadest possible interpretation of "religious liberty" when enforcing federal laws, including Title VII and other anti-discrimination laws.

According to Mr. Sessions, the task force as a necessary to "confront and defeat" secularism, "a dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom."

WIRTW #517 (the “interrupter” edition)

Every now and again I like to bring y'all some new music to discover for your Friday. It might not be new, and it might not be new to me, but it might be new to you. And I hope it's something you appreciate and will enjoy.

Today, I bring you The Interrupters.

They might be on the forefront of a ska, pop-punk revival. Comprised of three brothers, Kevin, Jesse, and Justin Bivona, and lead singer Aimee Interrupter, they have a bona fide hit on their hands, "She’s Kerosene," the lead single off their 2018 release, Fight the Good Fight. It's the first ska song to gain any radio play since No Doubt, and currently sits at number 28 on Billboard's Alternative Songs Chart (and climbing). And it's damn catchy.

Here they are performing their hit on Jimmy Kimmel Live last week:


Not only are their songs catchy, but the messages are positive, and the music is just plain fun. And god knows we need more positivity and fun these days.

To top it all off, they are nice people, fan friendly, and deserve all of the success they are achieving.

A soul-warming night of punk rock for this dad and his 11-year-old punk rocker. Thanks @interrupstagram @aimeeinterrupter @jessebivona @justinbivona @kevinsweatshop @theregrettesband @lydianight @genessa.jpg @mmaxxm @sagenicole @swmrs

A post shared by Jon Hyman (@jonhyman) on Dec 14, 2017 at 4:01am PST

So head over to your streaming service of choice and check out The Interrupters. I don't think you'll be disappointed. Or, better yet, go to wearetheinterrupters.com, buy some vinyl, and support some really good people making really good music.

Here's what I read this week:

The 14th nominee for the “worst employer of 2018” is … the HR pimp

The Federal Emergency Management Agency (FEMA) — the federal agency charged with responding to natural disasters — appears to have a disaster of its own to respond to.

It appears that its former HR chief offered creative "bonuses" to his male employees — he's accused of hiring women to be possible sexual partners to men working for the agency.

The worst employer of 1969

1969. Woodstock. Abbey Road. The Moon Landing.

And pregnancy discrimination.

It's not an oxymoron to be pro-civil rights AND represent management

I read a tweet last night that really angered me.

John Oliver and Anita Hill on fixing our workplace sexual harassment problem

When Anita Hill testified during Justice Clarence Thomas's confirmation hearing almost 27 years ago, the thought was that her story might be the beginning of the end of sexual harassment as a workplace problem. That clearly did not happen.

The #MeToo movement has now, once again, brought sexual harassment to forefront.

Last night, John Oliver tackled the issue on his HBO show.

WIRTW #516 (the “grand” edition)

Some things are destined to let you down. To fail to live up to the hype. The new movie that everyone is raving about. The hot restaurant that you just have to try. New Coke.

I was (ever so slightly) worried that the Grand Canyon would end up on this list. That we'd make the two-plus hour drive from our hotel in Sedona, walk up to the rim, take a gaze, and say, "Eh, it's a giant hole in the ground; let's go."

I'm happy to report that was not the case. The Grand Canyon very much lives up to its hype, its moniker, and its status as one of the seven natural wonders of the world.

Here's what I read this week:

6th Circuit offers a good reminder that the ADA is often a bilateral process

Like many people, I would love to have the time to exercise more. Life (and by life, I mean the 10 or more hours per day I'm often at work) gets in the way.

What if, however, you had the available time to exercise during the work day?

Or, for example, consider, McDonald v. UAW-GM Center for Human Resources (6th Cir. 6/21/18), which asks whether an employer is required to grant an extended lunch break as a reasonable accommodation to permit an employee to engage in disability-related exercise.

Per her employer's collective bargaining agreement, Shannon McDonald's employer permitted employees annually to elect whether to take a 60-minute lunch break, or a 30-minute lunch break with two additional non-contiguous 15-minute breaks. In 2014, McDonald opted for latter, yet kept extending her lunch by 30 minutes to exercise. She was born with Crouzon syndrome, a genetic disorder, which caused multiple surgeries over the years. She claimed that exercise helped alleviate pain from those previous surgeries.

The employer, however, caught on to McDonald's extended lunches, refused to permit her to change her annual election, and warned her that a continuing failure to follow its policy on breaks could result in discipline. It did, however, offer her an alternative. In lieu of granting an exception to her annual lunch-break election, the employer offered McDonald the option to use its exercise facility prior to the start of her shift. She refused, however, because she "would rather have been able to switch [her] lunch from a half hour to an hour," and that she did not want to "wake up early if [she] didn't have to."

Ultimately, the employer suspended McDonald. She had submitted a doctor's note asking for 60 minutes of exercise time as an accommodation. While the employer was considering the request, McDonald continued to violate its lunch break rule. That violation resulted in her suspension. While on suspension, she resigned, and sued.

The 6th Circuit affirmed the district court's dismissal of McDonald's ADA claim.

CHR never denied McDonald's request. True, her immediate supervisor told her it was not feasible and suggested alternatives. But the actual decision-makers had not yet rendered their verdict.… But McDonald didn't wait for an answer: she immediately went on personal leave after her suspension and quit just a few weeks after that. "[A]n employee cannot base a disability discrimination claim upon an employer's delay in providing a requested accommodation where the delay is due to internal processing or to events outside the employer's control."

Like many workplace issues, the ADA is a two-way street. An employee cannot claim the Act's protection by shutting down one of those lane and demanding a one-sided process.

WIRTW #515 (the “Murica – part 2” edition)

 

Thanks, Abe.

Here's what I read this week:

Discrimination

• Could forcing an employee to sign a last chance agreement lead to a retaliation claim? — via Eric Meyer's The Employer Handbook Blog
• It’s Not the Damages, It’s the Attorneys’ Fees — via Dan Schwartz's Connecticut Employment Law Blog
• How Managers, Coworkers, and HR Pressure Women to Stay Silent About Harassment — via Harvard Business Review
• Race Discrimination Based on More Than Color—“Jewish Blood” — via FisherBroyles

Technology

• Technology Plays a Part In the Employee Experience — via hr bartender
• The Practical Guide to HR Analytics — via Next Blog
  New York’s very broad cyberbullying bill 2.0 — via Walter Olson's Overlawyered
• Formal Insider Threat Risk Assessment Program Best Addresses Employee Threats to Critical Technologies — via Trade Secrets and Noncompete Blog  
• One-Third of Businesses Lack a Cybersecurity Expert — via Dark Reading
  Fifth Circuit Reverses Dismissal of Data Breach Coverage Suit Against D&O Insurer — via The D & O Diary

HR & Employee Relations

• Episode 36 – Fire Pole — via Marc Alifanz's and Dennis Westlind's Hostile Work Environment Podcast
• Traveling for Business? WeWork Will Only Reimburse Your Meals if They are Vegetarian — via Evil HR Lady, Suzanne Lucas
  Former Employee Stole $1.3 Million From The ABA — via Above the Law
• The First Amendment and Burping — via HR Hero Line
• Can You Rescind Your Resignation? Papa John's Former CEO Wants To Know — via Donna Ballman's Screw You Guys, I'm Going Home
• When are Background Checks Issued in the Hiring and Selection Process? — via Workology
• "No Poach" Recruiting Agreements Continue to Fall Across Corporate America — via The HR Capitalist, Kris Dunn
• Can Attorneys Be Liable For Directing Clients to Breach Non-Competes? One Federal Court Says Maybe — via Trading Secrets

Wage & Hour

• Auto-deducted lunch breaks land employer in hot water — via HR Dive 
• The Eleventh Circuit Affirmed It Was Not A “Crime” To Not Compensate For Dressing and Drive Time — via Employment Law Lookout
• Employee or Independent Contractor? Simple as A-B-C — via Impact Litigation Journal
• Federal Circuit Affirms Dismissal of Independent Contractor Misclassification Claim — via Employment Class Action Blog

Labor

• How to Balance the Need for Surveillance Against Protected Activity? — via EntertainHR
• Hey, Hey, Hey, Goodbye: DOL Persuader Rule Nixed — via Labor Relations

OSHA & Safety

• Call Me, Maybe? Court Rules that Phone Call to OSHA Constitutes Filing of Whistleblower Complaint — via Workplace Safety and Health Law Blog
• West Haven bathroom conditions prompt OSHA complaint — via Workplace Safety and Environmental Law Alert Blog

Dealing with IEDs in your workplace—employees with intermittent explosive disorder

Every workplace has had THAT employee. The hothead. Someone who loses their cool at the drop of hat. Yells, screams, and is prone to fits of rage.

It should go without saying that no one should be required to be subjected to this degree of misconduct. For this reason, you may (should?) decide to separate Hothead's employment.

What happens, however, if Hothead delivers a doctor's note advising you that he or she is being treated for "intermittent explosive disorder?"

6th Circuit says full-time work is not an essential function of every full-time job

Is an employer required to permit a disabled full-time employee to work a reduced work schedule as a reasonable accommodation?

In Hostettler v. The College of Wooster [pdf], the 6th Circuit concluded that it depends on the specific position, and that an employer risks violating the ADA by declaring full-time work as an essential function of a position without analyzing the actual need for full-time work for that position.

Firing of deaf employee costs Costco a Costco-sized verdict

I've thought a lot of things walking through Costco.

Why aren't the free samples out yet?

What the heck am I going to do with 10 pounds of cheese, but damn that's a good price?

How did I just manage to spend $250?

The one thing I've never thought?

It's so loud in here; I wish the employees would speak more quietly.

Are you ready for rolling background checks of employees?

Last week, Bloomberg published an article warning businesses to get ready for rolling background checks at work — the practice of running regular background checks of existing workers in addition to the routine pre-employment screening.

I bring this story your attention not only because it's quality information, but also because it happens to quote yours truly (thanks to Mike Sasso for the interview):

WIRTW #514 (the “Happy birthday D-man” edition)

Tomorrow, this guy turns 10. Or, as he says, only 1 day left for single digits.

 

Happy Birthday Donovan!!! 🎂🎁🎈🎉

You're the funniest, sweetest, most gentle soul I know.

Here's what I read this week.

Does an employer have a duty to protect the personal information of its employees?

Consider the following scenario.

An employer discovers that an employee who worked in its information technology department had been stealing older laptop computers. Some of those computers had been used in the employer's human resources department and contained former employees' personal information (including social security numbers and drivers' license numbers), which the company collected on each employee at the time of hire.

The 13th nominee for the “worst employer of 2018” is … the murdering manager

Today's post is a lesson in how not manage a poor performing employee.

Believe it or not, it's generally considered poor employee management to attempt to motivate employees by causing them serious physical harm. It's even worse when that serious physical harm results in an employee's death.

Brett Kavanaugh, Supreme Court Justice?

The pick is in. Brett Kavanaugh is President Trump's nominee to replace Justice Kennedy on the Supreme Court.

What type of Justice will Kavanaugh be? No one really knows for sure. All we can do is read his past appellate opinions, and hypothesize.

The opinion I'm offering for your consideration is Ayissi-Etoh v. Fannie Mae, a 2013 racial harassment case that asked the question of whether one isolated yet severe incident of discriminatory conduct — "Get out of my office n***er" — can suffice to establish a hostile work environment.

No, you can't require your employee to work during an FMLA leave

Today, I examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let's take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov't (W.D. Ky. 5/29/18).