Friday, July 12, 2019

WIRTW #559 (the “Happy Birthday D-Man” edition)


This guy turns 11 on Sunday.


Happy birthday Donovan! Please keep making us smile.

Here’s what I read the past two weeks.

Discrimination

HR & Employee Relations

Technology

Wage & Hour

Labor

OSHA & Safety

Thursday, July 11, 2019

Rob Mendez won the Jimmy V Award at last night’s ESPYS, and it might be the most inspiring thing you’ve ever seen


Rob Mendez coaches the JV football team at Prospect High School in Saratoga, California. He’s also lived his entire life with no arms and no legs. He was born with tetra-amelia syndrome, an extremely rare genetic disorder that prevented their embryonic formation. You can read Rob’s entire (and entirely) compelling story at this ESPN feature story, or watch it in this Jon Hamm-narrated featurette.

Last night, at ESPN’s annual sports awards, the network honored Rob Mendez with its Jimmy V Award for Perseverance.

As compelling and inspiring as he and his story are, so was his acceptance speech last night.


Wednesday, July 10, 2019

Why are employers testing job applicants for prescription medications?


During a pre-employment medical examination and drug screen, an applicant tests positive for Alprazolam, the generic form of Xanax (a medication commonly prescribed for anxiety), a fact she had already disclosed during the examination. The doctor performing the medical exam and reviewing the drug screen concludes that the applicant is medically acceptable for work as an intake specialist at an inpatient mental health facility. The employer, however, has other ideas. It withdraws the job offer without providing the applicant any opportunity to discuss the results.

The applicant sues, claiming disability discrimination.

Who wins?

Tuesday, July 9, 2019

NLRB offers significant and important guidance on its new(ish) employee handbook rules


It’s been just over 18 months since the NLRB decided Boeing Co., perhaps its most significant decision in decades. It rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

In Boeing, the Board scrapped Lutheran Heritage’s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).” It was a huge win for employers drafting and issuing workplace policies.

Monday, July 8, 2019

Why, yesterday, in France was a stadium full of people chanting “EQUAL PAY?”


Indisputable fact no. 1: Women and men should earn the same pay for the same work.

Indisputable fact no. 2: The players on the United States women’s national soccer team earn substantially less than their counterparts on the men’s team.

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

Wednesday, July 3, 2019

4 ways your employees are like a new puppy


We are on day 5 of new puppy in the Hyman household. Dante is adjusting well, as are we (including big sister Loula … more or less). It’s been 7 years since we last raised a puppy. And the thing I forgot the most is just how many rules there are.

Tuesday, July 2, 2019

There’s no such thing as “reverse” discrimination—it’s all just discrimination


According to the New York Post, a Caucasian 20-year veteran attorney for the Legal Aid Society is suing her former employer for race discrimination. Among other issues in her lawsuit, she claims that she was denied a lateral move “because of ‘diversity considerations.’”

Do you know that some courts impose a different, higher legal standard for discrimination against white employees than for discrimination against African-American employees?

Monday, July 1, 2019

Don’t forget about overtime pay when providing bonuses to non-exempt employees


Last week Chipotle announced a new bonus plan that could earn its employees up to an extra month of pay each year. Per the chain’s press release, the program is offered quarterly and can result in a bonus worth one week’s pay, calculated as an individual’s average weekly pay per quarter. To qualify for the quarterly bonus program, restaurant teams must meet certain sales and cash goals.

This bonus program has the potential to be a great way for the restaurant to break through in a tight labor market to attract talent. It also, however, has the potential to pose an FLSA nightmare. Bonus payments often count as part of a non-exempt employee’s regular rate of pay, thereby increasing the overtime premium owed to that employee.

Thursday, June 27, 2019

Does an employer have a duty to protect the personal information of its employees? (Part 3)


Employees trust their employers with a whole bunch of personal information. Social security numbers, medical documents, insurance records, birth dates, criminal records, credit reports, family information, etc. And it’s not like employees have a choice over whether to disclose and entrust this information to their employer. These documents are all necessary if employees want to get hired, get paid, and obtain health insurance and other benefits. Thus, an employer’s personnel records are a treasure trove of PII (personally identifiable information — any data that could potentially identify a specific individual, which can be used to distinguish one person from another and de-anonymizing otherwise anonymous data).

For this reason, cyber-criminals target myriad businesses in an attempt to steal (and then sell on the dark web) this data.

If a company is hacked, and employees’ PII or other data is stolen, is their employer liable to its employees for any damages caused by the data breach?

Wednesday, June 26, 2019

Facebook video sinks employee’s FMLA claim


Everything was going swimmingly for Thomas Dunger during his approved FMLA leave from his job as a mechanic for Union Pacific Railroad … until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to Dunger’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing Dunger copped to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and Union Pacific ultimately fired him. 

Tuesday, June 25, 2019

Employers are making new dog ownership a little less ruff by offering “pawternity” leave


In three days, my family grows by one. We’re adding a puppy.


My wife and kids have been clamoring for a new dog for a year. Loula (our current dog) is seven years old, and they don’t want to be in a position of not having a dog in our family. Plus, we don’t want to wait until Loula’s too old to tolerate the energy of a new puppy.

Monday, June 24, 2019

The Customer isn’t always right: The Museum of Sex(ual harassment)


Just because an employee works at The Museum of Sex does not mean that she wants be sexually harassed. Or least that’s what Katherine McMahon alleges in her lawsuit against her former employer.

The New York Post offers the salacious details:

“Patrons and co-workers of the Museum grope its employees, use utterly inappropriate sexual language, and inquire into employees’ private sex lives,” the suit alleges. 

Friday, June 21, 2019

WIRTW #557 (the “infinity and beyond” edition)


Toy Story has played a huge party in my life. Donovan is a Toy Story fanatic. He’s seen every movie hundreds of times. He has what seems like every toy and every stuffy. Until the age of 6, every article of clothing he owned had a Toy Story character on it somewhere. Buzz and Woody (but especially Buzz) got him (and, by extension, us) through some really tough times when Donovan was a toddler. How could we do anything other than see Toy Story 4 on opening night.

My four word, spoiler-free review: Go now! (Bring tissues.)

My slightly longer, still spoiler-free review: Lots and lots of tissues.

My even longer, yet still spoiler-free review: Nostalgia has a very strong pull. It’s apt that much of this movie takes place in an antique shop, a place that’s all about nostalgia. Toy Story is extraordinarily nostalgic for my family, and if this is end of the road for the series, I can’t imagine a better ending.


Here’s what I read this week:

Thursday, June 20, 2019

Is blockchain technology the next frontier in combating sexual harassment?


According to Employee Benefit News, Vault Platform has developed an app that uses blockchain technology to allow employees to document and report workplace sexual harassment on their smartphones.

“Interesting,” you say,” but what’s blockchain technology?”

Wednesday, June 19, 2019

The 12th nominee for the “worst employer of 2019” is … the disguised doctor


Norma Melgoza, a long-time employee of Rush University Medical Center, is suing her employer for sex discrimination and equal-pay violations stemming from a denied application for a promotion.

In support of her claim of glass ceiling gender bias, Melgoza points to certain misconduct of the interviewing physician. I’ll let the district court explain.

Tuesday, June 18, 2019

What’s a hostile work environment? You’ll know it when you see it.


“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).

I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.

Monday, June 17, 2019

How long of a leash must you give an employee before firing?


When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.

I ask these questions for two reasons:

  1. Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.

  2. Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.

So what does quality documentation to support a termination look like? Consider Anderson v. Greater Cleveland Regional Transit Authority (N.D. Ohio May 29, 2019).

Monday, June 10, 2019

Do your employees understand that social media is a very public conversation?


“It’s 2019. All of our employees have been on Facebook for years. Many are also on Twitter, and Instagram, and … We don’t need to do any social media training.”

If you’ve had these thoughts or internal conversations, allow me to offer Exhibit 1 as to why you are wrong.

Texas district votes to fire teacher who tried to report
undocumented students to Trump on Twitter

Friday, June 7, 2019

WIRTW #556 (the “comfort zone” edition)


My comfort zone is most definitely not at a biker rally. Yet, that's where I found myself last Saturday afternoon. The things we do for our kids. 🤷‍♂️

Click here for Fake ID’s killer set opener, War Pigs, by Black Sabbath, recorded at the Ohio Bike Week Block Party.

Needless to say, I’m pretty darn proud of my (not so) little girl.


Your next chance to see them live is June 15 at Crocker Park, in Westlake, Ohio. Details here for this free show.

Here’s what I read this week.

Thursday, June 6, 2019

An obituary for employment at-will


Over at her employee-rights blog, Screw You Guys, I’m Going Home, attorney Donna Ballman asks, “Is is time to terminate at-will employment laws?

Well, Donna, there’s no need to terminate these laws; they are already dead.