NLRB asks for help to overturn some really $%#^ bad decisions

“Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!”

“Hey, did you bring enough KFC for everyone?” “Go back to Africa, you bunch of fucking losers.” “Hey anybody smell that? I smell fried chicken and watermelon.”

You’d think that if any of your employees lobbed any of these bombs at a supervisor or coworker, you’d have no legal issue if you fired them. And you’d be right … usually.

WIRTW #567 (the “passion” edition)

With a 13 year old with one foot dangling in the music business, I do a lot of reading about the music business, and what it means to live that life in 2019 and beyond. This article, written by Rhett Miller late last year, perhaps sums it up better than any I’ve read. It’s titled, The Loneliness of the Long Distance Rocker. And it paints a fairly bleak, isolating picture of what it’s like to be a musician  today.

In garages and basements and dorm rooms across the country and around the world, bands are forming this very minute. They are arguing over favorite songs, greatest albums, Stratocaster versus Telecaster, and inevitably which one of the members is going to have to switch from guitar to bass. These hopeful young dreamers give me hope. 

But we also shouldn’t kid ourselves: they are exceptions. For every one of these fledgling anarcho-syndicalist collectives, there are a thousand or a million kids alone in their bedrooms staring at Protools screens wondering what they have to do to get the Swedish cabal to write a hit song for them. They download a file onto Bandcamp or YouTube, start logging the hits, and pray. 

And oh my God, that sounds so lonely.

Yet, despite that depressing, like-count obsessed picture of today’s musician, Rhett’s tagline to his article is perhaps his most important thought. “Can music still save your mortal soul?” (He eloquently writes about how it saved his.)

I’m an optimist. As I look at my kids, and the community they are creating through the friendships and partnerships they are building through music, I have hope. Not hope for success or a hit song (because that’s not what it’s all about). But hope that they’ve found something to be passionate about, and like-minded people with whom to share that passion. For that’s what will lift them up and carry them through life. 

Here’s what else I read this week:

When common sense carries the day

Jordan does not explain how being disciplined for her unplanned absences and tardy arrivals created a hostile work environment. Without evidence indicating that she experienced severe or pervasive conduct, Jordan’s hostile work environment claim fails.

Every now again it’s refreshing to review a common-sense judicial opinion. Jordan v. United Health Group is just such a case.

Social media accounts are not telling you the whole story about your applicants and employees

If you rely on social media to paint for you a full and complete picture about your job applicants and employees, you are going to be very disappointed.

According to a recent survey, 43% of workers use privacy settings to keep material hidden from employers, and 46% have searched for their own names and taken further measures to conceal their social media presence based on what they found.

Why “ban the box” doesn’t work for employers or employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

WIRTW #566 (the “sweet sixteen” edition)

We haven’t changed a bit after 16 years of marriage. Happy (yesterday) anniversary to my bestie!

Here’s what I read this week.

No, your FMLA does not grant you license to threaten your coworkers

After being harassed by co-workers, Paul Ellis took to Facebook to air his grievances publicly. Among his comments was one that could be perceived as a threat violence: “he’s gonna have an accident on the dock.” When another employee brought a printout of the post to their employer, FedEx, an investigation began. During that investigation. Ellis admitted that one could perceive that comment as a threat. As a result, FedEx fired him.

Prior to his termination, Ellis frequently took leave under the FMLA to receive treatments for his chronic back pain and to take care of his sick mother. He alleged that FedEx retaliated against him for his use of FMLA leave by terminating him.

This is what sex discrimination will look like if the Department of Justice gets its wish to legalize sex stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

Can an employer ask an employee to stop groaning in pain all the time if she refuses to seek medical treatment?

Last week I received the following email from Alison Green, who writes the entertaining and informative blog, Ask a Manager.

Hi Jon, 

I’m a huge fan of your work, and I wonder if you might be willing to weigh in with a legal perspective on a letter I’d like to print at Ask a Manager. If you’re up for it, I’d be delighted to print your thoughts, along with a link to your website and book (and anything else you’d like me to link to) in the Ask a Manager post where I tackle this letter. I’m not sure if this is something you do or not, but I’m hoping you might say yes!

My response: “Right back at’cha on the fandom. Happy to share my thoughts for your readers.” (When an email starts with, “I’m a huge fan,” it’s hard to say no.)

Here’s the question posed.

Is a vacation during an FMLA leave inconsistent with an employee’s serious health condition?

A few months ago I wrote about an employee fired for taking a fishing trip while out on an FMLA leave. In that case, the court upheld the termination as lawful. Recently, however, the Supreme Court of Massachusetts considered a similar case and reached the opposite result.

WIRTW #565 (the “back to school” edition)

My kids went back to school this week. 5th grade for Donovan and 8th grade for Norah. I sent them off with this advice.

Try your hardest, be your best you, and always be kind. 

Word to live by, whether you’re a student, an employee, or just a human being.

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A post shared by Jon Hyman (@jonhyman) on Aug 21, 2019 at 5:55am PDT

Here’s what I read this week.

The EEOC asks the Supreme Court to legalize sex discrimination

This fall, the Supreme Court will hear argument in three cases to decide whether Title VII’s coverage of sex discrimination also implicitly protects LGBTQ employees from discrimination. Last week, the EEOC filed its brief in the cases, making a startling argument in favor of legalizing not just LGBTQ discrimination, but all sex discrimination.

“Sex stereotyping by itself is not a Title VII violation”

Does the ADA cover morbid obesity? Federal appellate court says maybe 🤷‍♂️

Jose Valtierra weighed 370 pounds at the time Medtronic terminated his employment in 2014 for falsifying job reports. Valtierra claimed that he had been denied an accommodation for his morbid obesity, which he alleged caused him to be unable to perform his job. Hence, the fake job reports.

The 9th Circuit Court of Appeals punted on the issue of whether "morbid obesity" is a disability covered by the ADA.

New study reveals that age discrimination remains a worsening problem for employers

Insurance company Hiscox just released its 2019 Ageism in the Workplace Study [pdf], which revealed some sobering statistics about the growing problem of age discrimination for American employers.

Is it legal to dock the pay of employees who skip a political rally being held in the workplace?

Has an employer violated the law if it docks the pay of an employee who skips a speech being given by Donald Trump in their place of employment?

Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees attendance at a rally Donald Trump was holding at their place of employment during the work day. Only pay those employees who show up.

“NO SCAN, NO PAY,” a supervisor wrote to his employees.

WIRTW #564 (the “Woodstock” edition)

At this moment very moment, 50 years ago, an estimated 400,000 people were gathered on Max Yasgur’s dairy farm in Bethel, New York, celebrating 3 days of peace and music.

Woodstock.

On Sunday, my kids will take the stage at the Rock & Roll Hall of Fame as part of School of Rock’s Woodstock Festival. Each of the three local Schools of Rock will perform a shortened version of their full Summer Woodstock shows. 

Here’s a short preview of what you’ll see. Donovan on vocals, and Norah holding down the bass and adding more vocals, on Sly & Family Stone’s Sing a Simple Song.

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A post shared by Jon Hyman (@jonhyman) on Aug 4, 2019 at 2:43pm PDT

The performance runs from 2 - 5 on Sunday on the big stage on the Rock Hall plaza. The music is free; the love isn’t (they’re just kids after all).

Here’s what I read this week.

Government sanctioned discrimination is abhorrent and we, as a nation, should be ashamed

Trigger warning: today’s post is not for everyone. If, however, you are offended by what I am about to say, then today’s post is specifically for you.

Yesterday, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.

You are DUMB if you threaten to fire employees who support labor unions, and even DUMBER if you tweet about it #barstool

Meet Dave Portnoy. He’s the editor of Barstool Sports, a website that I can only describe as having missed the memo entirely on #MeToo. Mr. Portnoy describes himself as: “El Presidente/3 time Bee Sting survivor. Heart attack survivor. 2019 #dipoff champion. Shot 4 under at Shinnecock. Worshipped like a 3rd world dictator.”

#yuck

Portnoy also holds some strong opinions, including about labor unions.

The law is a floor, not a ceiling: FMLA and IEP meetings

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends—Jeff Nowak, Suzanne Lucas, and Eric Meyer—each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

Do you know what to do if ICE shows up at your business?

Last week, US Immigration and Customs Enforcement agents arrested nearly 700 immigrants as part of a series of raids at work-sites throughout Mississippi. The raids are part of the Trump administration’s ongoing crackdown on illegal immigration.

What if ICE shows up at your business. Do you know what to do?

I’ve covered this topic previously. Given the recent news, It thought it was worth revisiting. You can read my thoughts here.

* Photo Courtesy of ICE. [Public domain], via Wikimedia Commons