WIRTW #562 (the “someday we’ll find it” edition)

When the whole world seems like it’s going to 💩 , sometimes all you need to brighten your spirits is a video of 🐸 singing about a 🌈.

So here’s Kermit the Frog (along with My Morning Jacket’s Jim James, and Janet Weiss, Sleater-Kinney’s ex-drummer) performing the Muppets’ classic, Rainbow Connection, from his surprise performance at last weekend’s Newport Folk Festival.


(I really want to find the two people who thumbs-downed this video on YouTube.)

Here’s what I read this week.

When an employee’s religion clashes with an employer’s dress code

A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed, and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Do workplace bullies violate OSHA?

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

Labor and employment lessons from the world’s most combative stripper

Different type of stripper

Meet Brandi Campbell, a stripper and self-proclaimed labor activist for other strippers nationwide. She maintains stripperlaborrights.com, where she provides dancers with information about their legal rights, including their rights under the National Labor Relations Act. She’s filed (and won) unfair labor practice charges against clubs in Nevada, Minnesota, and Wisconsin, alleging that they discriminated/retaliated against her for engaging in statutorily protected activities and deprived dancers of their statutory rights by misclassifying them as independent contractors.

#MeToo hasn’t killed the office romance, just the inappropriate ones

According to the National Review, #MeToo killed the office romance.

It must be a brave soul who dares to strike up a flirtatious conversation at the workplace microwave these days. Only ten percent of Americans report having met their mate at the office, a level that is half what it was in the 1990s.

WIRTW #561 (the “don’t call me flaky” edition)

According to The Economist, dads face greater workplace penalties for taking parental leaves than do moms.

Americans see taking a break to care for children as a sign of lower commitment to work and even flakiness. … Whereas mothers who take time off to rear offspring face difficulties when returning to work, opt-out fathers may fare worse, says Scott Behson, author of a book called “The Working Dad’s Survival Guide: How to Succeed at Work and at Home”. America has a workaholic culture, he says. Mothers who put their families first eschew that culture, resulting in costs to their careers. But fathers who do so are violating both the workaholic culture and traditional gender norms.

Here’s the thing. Just because I enjoy being a dad does not make me flaky. It just means that I enjoy being a dad. We all make choices in our lives. I’ve chosen to eat dinner with my kids, attend their school conferences and events, haul gear to their concerts, and work the merch table for Norah’s band. Don’t get me wrong, I love being a lawyer. But, when I die, I’d much prefer my tombstone reads, “He was a great dad,” not, “He was a great lawyer.”

I’m a dad active in my kids’ lives. Yet, it doesn’t mean I’m any less dedicated to my job. It’s not an either/or proposition. You can be a good parent and a good employee. They are not mutually exclusive. So please don’t judge the quality of my work based on my commitment to my family. And please don’t call me flaky.

Here’s what I read this week:

Which mental health service does the FMLA not cover?

Yesterday, I discussed our national mental health crisis, and the important role employers play in removing barriers to employees receiving the help they need. Then, I came across this post on LinkedIn, discussing a massive barrier that the FMLA institutionally imposes.

An individual suffering with a mental health issue has various treatment and therapy options available to them. For medication, one can see a psychiatrist, a primary care physician, or a nurse practitioner. For assessment and therapy, one can see a psychologist, a clinical social worker, or a licensed professional counselor.

Amazingly, however, the FMLA does not recognize one of these licensed mental health professionals as a “health care provider.”

Employee suicide is the next big workplace safety crisis

A recent headline at businessinsurance.com caught my eye:

Suicide seen as “next frontier” in workplace safety risks

It’s a pretty dramatic headline, but when you drill down into the statistics, it has a lot of weight.

• Suicide is the 10th leading cause of death in the U.S.
• Between the ages of 10 and 34, however, suicide is the second leading cause of death, and the fourth leading cause of death between the ages of 35 and 54.
• In 2017, 47,173 Americans died from suicide (more than double the number of homicide victims), and another 1.4 million attempted suicide.
• Between 2000 and 2016, the U.S. suicide rate among adults ages 16 to 64 rose 34 percent, from 12.9 deaths for every 100,000 people to 17.3 per 100,000.
• In 2016, the U.S. Bureau of Labor Statistics hit a record in its 25-year tally of workplace suicides at 291, with the number gradually climbing over the prior decade.
• The highest suicide rate among men was for workers in construction and mining jobs, with 53.2 deaths per 100,000 in 2015, up from 43.6 in 2012.
• The highest suicide rate among women was for workers in arts, design, entertainment, sports and media, with 15.6 deaths per 100,000 in 2015, up from 11.7 in 2012.

The numbers are stark and scary, and show a nation in the midst of a mental health crisis. What can employers do to recognize and mitigate this risk, and provide a safe workplace for employees in crisis?

The 14th nominee for the “worst employer of 2019” is … the horrible harasser

In its press release announcing a recently filed sexual harassment lawsuit, the EEOC says that a N.Y.-based housing development and property management company violated Title VII when its owner and top executive, repeatedly subjected female employees to crude sexual comments, called them sexually obscene names, and showed them pornography.

And, as bad as that sounds, that description barely scratches the surface of what is actually alleged to have happened in this workplace.

Parental discrimination claims pose big risks for employers

According to workingmother.com, More Parents Than Ever Are Suing Their Employers for Discrimination—and Winning. The article is right — parental discrimination claims (which are really just sex discrimination claims brought by working parents) are very dangerous for employers.

WIRTW #560 (the “more kindness” edition) #IChooseKindness

Yesterday, I asked you all to join me in choosing kindness, and talked about Richard Cook’s Don’t Hurt Anyone Project. Over on LinkedIn, Richard took the time to share his thoughts on my post, which I’m sharing with y’all here.

Hi Jon, I am all in for #IChooseKindness Go! It is wonderful to see so many supportive comments. As you mentioned, I started the #donthurtanyoneproject There are a confluence of factors that led me to create something that felt so quaint and yet so urgent. One was sitting in the crowded gate area of airports waiting for a delayed flight. In my former career I did a lot of that. Inevitably I had the opportunity to talk with quite a few individuals. Sometimes we shared many of the same perspectives. Others not so much. But never in the latter of those two categories did a person get up and move to the furthest seat from me or I the same. We didn’t shout over each other. We just talked. When boarding time came we exchanged courtesies, sometimes shook hands and a few times figured out if we could be seated together to keep talking. It was hard for me to reconcile the “Divided States of America” narrative. No doubt that Americans disagree. However, I would suggest that for every ugly incident or rant that makes the news, there are far more that stop to help a motorist with a flat, make room in their family for a foster child or volunteer to help those struggling. Those people don’t ask for recognition but we need their energy. Urgently.

Let me know that you are choosing kindness by dropping a comment below, or by sharing your thoughts on any of your social channels with the hashtag #IChooseKindness.

Here’s what I read this week:

I choose kindness

In a world that has decided
That it’s going to lose its mind
Be more kind, my friends, try to be more kind

                              Frank Turner, Be More Kind                                                           

I’d like to introduce everyone to the Don’t Hurt Anyone Project. Richard Cook created the nonprofit in response to “the toxic currents of racism, misogyny, xenophobia, homophobia, anti-Semitism, discrimination, harassment, inequity, and injustice … growing even stronger, wider, and deeper in today’s America and across the globe,” and “to be a voice for nonviolence, equity, justice, and civility.”

I’m a huge fan of Richard, his project, and their message.

There isn’t a “magic number” of racial or ethnic insults an employee must prove to establish a hostile work environment

Jamie Ortiz (of Puerto Rican descent) worked for the Broward County, Florida, School Board in various capacities for nearly 20 years, including, from 2009 through 2017, as an auto mechanic in the district’s garage under the supervision of Michael Kriegel.

According to the testimony of both Ortiz and many of his co-workers, Kriegel had some issues with Puerto Ricans and other Hispanics, which he expressed to anyone who would listen, including Ortiz, on a daily basis.

A handy FAQ for service animals in the workplace

A local Subway recently earned itself some bad publicity when an employee denied access to a customer with a service dog.

While this story involved a customer, and not an employee, it did get me thinking about employee service dogs at work.

I created this handy FAQ on service dogs at work for your reference.

The 13th nominee for the “worst employer of 2019” is … the excoriating executives

It’s been nearly a month since I posted the last nominee for 2019’s Worst Employer. It’s not for lack of ideas; it’s just that the prior nominees have been so awful that the bar for qualification has been set pretty high. Thankfully, France Télécom has come to the rescue.

What did the former top executives at France’s national phone company do to earn their nomination?

35 Employees Committed Suicide. Will Their Bosses Go to Jail?

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

• No lockable private room for breast-feeding at workplace: $3.8 million award — via Overlawyered
• #MeToo: Looking to best teaching practices for effective training — via Employer Law Report
• What form of discrimination do juries hate most? (But, you’re probably doing the least to address.) — via Eric Meyer’s The Employer Handbook Blog
• “Sexual harassment” in the nature of the business — via Robin Shea’s Employment & Labor Insider
• 11th Cir.: Hospital employee fired for performance, not reporting racial slur — via HR Dive
• Federal Court Declares That a Ban on Mandatory Arbitration of Sexual Harassment Claims Is Inconsistent with Federal Law — via Financial Services Employment Law
• USWNT – Enough Already, This IS RIDICULOUS! — via Compensation Cafe
• Applicants are not required to disclose a pregnancy before or after being offered a job — via Richmond Times-Dispatch

HR & Employee Relations

• Your Job Candidates and New Hires are Ghosting You. This is What You’ve Earned and 9 True Tales of Ghosting at Work — via Evil HR Lady, Suzanne Lucas
• Yikes!!! Sometimes HR Pros and Managers Can Be Personally Liable for Violations!!! — via The EmpLAWyerologist, Janette Levey Frisch
• Office pranks shouldn’t end with the ER, vomit, or tears — via Ask a Manager
• Would You Fire Starbucks Employees Who Ask People to Leave for Questionable Reasons? — via The HR Capitalist
• Everybody Deserves PTO — via Laurie Ruettimann

Technology

• Border Patrol union president: Fire agents responsible for offensive Facebook posts — via CUE, Inc.
• Security Considerations in a BYOD Culture — via Dark Reading
• NIST Issues Report on Internet of Things Cybersecurity — via Ride The Lightning
• Cybersecurity For Businesses Part 1-How Cybersecurity Has Evolved — via Accellis
• Understanding Millennials’ And Technology’s Role In The Workforce, Part One — via Forbes
• More Companies Expanding Employee Monitoring — via EntertainHR
• Your Blockchain in HR Guide In Just 5 Minutes — via Workology

Wage & Hour

• To The Victors Go Few, If Any, Spoils In Wage And Hour Suits — via Law 360
• Can You Switch a Full-Time Worker Into a Contractor? — via Evil HR Lady, Suzanne Lucas
• Which Are They? Independent Contractors Or Employees? Navigating The Conflicts Between State And Federal Law — via Labor Employment Law Blog
• The cost of a $15 federal minimum wage — via Workplace Fairness
• Time Is Money: A Quick Wage-Hour Tip on … Time-Rounding Continue Reading — via Wage & Hour Defense Blog
• Dear Employers: You Can Go To Jail For Firing Employees Due To A Garnishment — via Donna Ballman’s Screw You Guys, I’m Going Home
• This One’s a Whopper! Court Puts Kibosh on Burger King Franchisee That Required Two Calls to Request FMLA Leave — via Jeff Nowak’s FMLA Insights

Labor

• NLRB speak on Employee Handbook Provisions (again). Private Sector Employers Take Note. — via BeLabor The Point
• The Gig Economy — via Labor Relations Institute
• NLRB Strengthens Employer Property Rights: What UPMC Means for Employers — via Hunton Employment & Labor Law Perspectives™
• NLRB Limits Duty to Bargain Over Disciplinary Actions — via Labor Employment Law Blog

OSHA & Safety

• Do I Have to Buy a Standing Desk for My Employee? — via upstartHR
• Sixth Circuit Strikes Down Workers’ Compensation Claimant Solicitation Law — via The Employment Brief
• Ohio Senate Removes Damaging Changes to Workers’ Compensation Budget — via Ohio Chamber Blog
• Nonprofit Workplaces — via Harvard Business Review
• What Else is at Issue in the BWC Budget Bill? — via Employers Workers’ Compensation Law Blog

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.

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?

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.

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.