Reasonable accommodations are for actual disabilities, not unhinged conspiracies

If I've learned one thing from my 25+ years of practicing law it's that when a court describes your arguments as a "rambling and hyperbolic tirade," your goose is cooked. 

This is the story of Meltzer v. The Trial Court of the Commonwealth, by John Bello, Administrator. 

Today is your LAST chance to vote for 𝗧𝗵𝗲 𝗪𝗼𝗿𝘀𝘁 𝗘𝗺𝗽𝗹𝗼𝘆𝗲𝗿 𝗼𝗳 𝟮𝟬𝟮𝟮

If you haven't yet cast your ballot for The Worst Employer of 2022, time is quickly running out. Polls close at the end of today. 

In case you need a refresher on the seven finalists, here they are (in alphabetical order):

B-i-t-c-h spells dismissal

We're a team, we need to work together. Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

That's what Tina Braunstein, a bartender working at The Plaza Hotel, claims one of her supervisors, Martin Mariano, told her during her 60-day review. When the hotel terminated her employment shortly thereafter and during her probationary period, she pointed to Mariano's spelling of "b-i-t-c-h" as evidence of his sexually discriminatory motive.

A tale of two employee nondisclosure agreements

"It was the best of times, it was the worst of times…." This is perhaps the most famous opening line in the history of literature, A Tale of Two Cities, by Charles Dickens. It's also an apt description of how two tech giants—Apple and Twitter—recently handled the issue of employee nondisclosure agreements.

WIRTW #653: the “playlist” edition

Last Friday, after sharing the Old 97's new holiday classic from the Guardians of the Galaxy Holiday Special, I asked LinkedIn for their favorite holiday songs. My LinkedIn community delivered in a major way. So today, I am thrilled to be able to share with you Jon Hyman's LinkedIn Crowdsourced Holiday Music Playlist Extravaganza. 

It's 42 songs spread over 2 hour, 27 minutes of eclectic rock, punk, country, pop, rap, and classical holiday standards and songs that will now be standards for your holidays. 

It's available to stream on Apple Music and Spotify. Shuffle, repeat, and jingle all the way through the holiday season.

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If you haven't already voted for The Worst Employer of 2022, what are you waiting for? Polls remain open until 14-Dec. 

VOTE HERE.

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Here's what I read and listened to this past week that you should also read and listen to.

Musings on dead dogs and terminated managers

We are no longer taking ANY EXCUSE for calling off. If you're sick, you need to come prove it to us. If your dog died, you need to bring him in and prove it to us. If it's a "family emergency," too bad. Go work somewhere else.

That was part of a written message an Olive Garden manager in Kansas recently delivered to his staff. The message that Olive Garden corporate delivered to that manager — "You're fired."

What should you do when the DOL shows up at your door?

"I'm an investigator with the Wage and Hour Division of the Department of Labor. I'm here to conduct an investigation into how your pay your employees." He then shows you his badge, and asks to see the following:

Records showing the business's annual dollar volume of transactions in in interstate commerce to establish that the DOL has jurisdiction; and

Payroll and time records for the past three years. 

With that, you're off the races in a DOL wage and hour investigation. The investigator will seek to determine if you've properly classified your employees as exempt or non-exempt, and if you've met your minimum wage and overtime obligations.

What do you do now? 

Pay attention to the industries the Department of Labor is targeting

Take a look at the following headlines, each taken from a Department of Labor news release from just the past month.

• US Department of Labor obtains court judgment ordering Pennsylvania restaurant, owner to pay 68 employees $193K in back wages, damages
• US Department of Labor finds overtime, tip violations; recovers $80K in back wages for 52 workers at 5 Carolina restaurants
• Dollars to doughnuts: Krispy Kreme to pay more than $1.1M to 516 workers after US Department of Labor finds systemic overtime violations

Bank properly terminates misbehaving employee despite FMLA leave, 6th Circuit holds

In 2017, a series of personal adversities, including probation for an incident with a gun and an ex-girlfriend, cocaine use, and a DUI arrest, ultimately culminated in a stroke for Mark Snyder, a financial director for U.S. Bank. When he returned in 2018 for his FMLA leave following his stroke, he suffered from residual physical and behavioral conditions, such as depression, agitation, and anxiety. Employees began to complain to management about his combative and confrontational behavior. After an investigation, the Bank told Snyder that further issues could result in other disciplinary actions, including termination of employment.

On June 4, 2018, Snyder had yet another confrontation with his supervisor, Johnnie Carrol, and his assistant Marcia Kleinhenz. As a result, Carroll emailed HR, explaining that Snyder's behavior "is consistent with his issues of attempting to intimidate people" and "I no longer think [Snyder's] situation is redeemable and feel I need to act." Carroll made the decision to terminate Snyder's employment that evening.

That same night, Snyder suffered a nervous breakdown and was hospitalized. The following day, he requested FMLA leave, which the Bank granted. A couple weeks later, however, Carroll and HR contacted Snyder to inform him that Bank was terminating his employment effective at the end of his FMLA leave.

The 6th Circuit had little difficulty affirming the dismissal of Snyder's FMLA claims.

• On his FMLA interference claim, the Court concluded that the June 4 confrontation was the "point of no return" for Carroll, and that he made the decision to terminated Snyder before learning of his nervous breakdown and hospitalization later that night.

• On his FMLA retaliation claim, the Court disagreed that evidence that Snyder had been a good employee before he took FMLA leave for his stroke supported a theory that the Bank schemed to push him out of the company after he took his that initial FMLA leave. To the contrary, the Court held, "Snyder cites no evidence supporting his theory that it was the FMLA leave, not the numerous complaints into his behavior, that was the reason for his termination, and "the only evidence he has supporting his theory is timing, which by itself is insufficient."

Many employers have a paralyzing fear of terminating an employee who has engaged in protected conduct, no matter the circumstances. Snyder demonstrates that this can be unfounded. The potential of a lawsuit certainly ups the ante when terminating an employee who has, for example, taken or requested FMLA leave. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they have a legitimate reason, have taken the right steps, and have the proper documentation.

WIRTW #652: the “caroling” edition

I love a good Christmas song. The problem is that too many of them are just not very good. Today, I'm adding one to your holiday music playlist that is sure to stick with you like the best kind of earworm.

I Don't Know What Christmas Is (But Christmastime Is Here) is from The Guardians of the Galaxy Holiday Special (streaming on Disney+). The fact that it's performed by my friends and favorite band, Old 97's, is irrelevant to just how much a banger of Christmas tune this is. If you've seen the special, you've also seen the band; they're the alien band performing their songs on screen.

Here's guitarist Ken Bethea reflecting to D Magazine about the coolest part of the experience of filming the special at Marvel's studios outside of Atlanta:

The coolest part was at the end, when the props designer led us into his office and showed us Captain America's shield, Thor's hammer, Doctor Strange's necklace, and Black Widow's batons. I asked if I could hold them and he said, "Absolutely." So I picked up—dare I say wielded—the shield and hammer, which together weighed about 80 pounds. For one shining moment, I could feel the envy of a billion Marvel fans. 

And here's what Director James Gunn told The Hollywood Reporter about working with his favorite band:

These guys are the greatest guys in the world, but they had to be in hell because people complain so much about that makeup when they're in it. But they never once complained. They were singing and playing their instruments for eight hours, and they just kept going and going and going, cut after cut. So they were amazing. They're just the greatest guys, not to mention the greatest music. So I hope this turns a lot more people on to the Old 97's.

I couldn't agree with James Gunn more.

Here's what I read this past week that you should be reading, too.

VOTE for the Worst Employer of 2022

It's the most wonderful time of the year. I've made my list. I've checked it twice. Now it's time to find out who's naughtiest and not very nice. It's voting time for The Worst Employer of 2022.

I've culled my list of 14 nominees down to the worst 7 as finalists. This year I'm using Ranked Choice Voting to find a winner.  

How does Ranked Choice Voting work?

Paper plant settles case of egregious racial harassment with EEOC for $385,000

Packaging Corporation of America has agreed to pay the EEOC $385,000 to settle the racial harassment claims of two African American employees. 

The allegations are egregious (per the EEOC's news release).

Is God anti-union?

Thomas Ross, a security officer employed by Allied Universal in San Francisco, has filed a discrimination charge with the EEOC against Service Employees International Union officials and his employer for forcing him to join and financially support the union after he told both that his religious beliefs forbid union support.

Under the National Labor Relations Act, an employee can be forced to join a labor union and pay union dues whether or not he or she supports that union or any union. If, however, the employee happens to work in one of the 27 states with right to work laws, he or she cannot be forced to join or pay. California is not one of those states. Thus, Ross claims that his employer and the SEIU should have reasonably accommodated his sincerely held religious belief that union membership violates his Christian beliefs.

There’s nothing wrong about wanting not to have fun at work

A French employee, fired for refusing to participate in after-work drinks and other "team building" activities, has won the legal right "not to be fun" at work.

The man, named in his lawsuit only as "Mr. T," was fired for "professional incompetence" — specifically his refusal to adhere to the company's "fun" values. According to the Court of Cassation (France's highest court), the company's "fun" values included regular obligatory social events that included "excessive alcoholism encouraged by colleagues who made very large quantities of alcohol available," plus "practices pushed by colleagues involving promiscuity, bullying, and incitement to various excesses."

WIRTW #651: the “thankful” edition

As we head into the Thanksgiving holiday, I thought I'd take a moment to say a few thank-yous, as I have a lot for which to be thankful.

🙏 Thank you to all of my readers, followers, and commenters, here and on LinkedIn and Twitter (for as long as Twitter remains a thing). We might not always agree, but if we did it would be crazy boring. 

🙏 Thank you to all of the bad employers, who continue to act before they think (or don't think at all) and provide me content for all of my posts.

🙏 Thank you to my law firm, which supports my online fancies. They hired me to run our labor and employment practice, and didn't bat an eye when I expressed an intent to spread my wings into craft beer law. 

🙏 Thank you to all of the organizations that invited me to speak in 2022, and a special shoutout to Business Management Daily, which hosts my monthly column and for which I'll be speaking monthly next year. Also, if you want to toast a beer with me, look for me at the Ohio Craft Brewers Conference in Cleveland from 1/30 – 2/1, and at the national Craft Brewers Conference in Nashville from 5/7 – 5/10.

🙏 Thank you to my family, who continue to support my career.

🙏 Thank you to my daughter, Norah, who still wants to create a podcast with her dad. As for our podcast, our newest episode addresses all things Thanksgiving, or at least all things Thanksgiving that matter, including food, food, food, parades, football, family, and food. You can listen on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, Stitcher, our website, or anywhere else you get your podcasts.

Here's what I read this past week that you should be reading, too.

I have zero sympathy for insubordinate employees who are fired

This is how it started.

This is how it's ended (for now).

In the intervening 48 hours, Elon Musk reportedly fired dozens of Twitter employees who criticized him publicly on Twitter and privately in the company's Slack channel. The first to go was Eric Frohnhoefer, a Twitter engineer who publicly challenged Musk's knowledge of how the app's backend actually works. Other employees, like this one, took to Mastodon to challenge Musk's termination of Frohnhoefer in obscenity laced rants.

The 14th (and final) nominee for the “Worst Employer of 2022” is … the slumlord supervisor

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

That's the language of the 13th Amendment of the Constitution. Someone needs to provide Emmanuel Polanco, principal of MS 80 in the Bronx, a civics refresher. He's accused of shaking down a group of 10 teachers assigned to his school from a Department of Education program that brought teachers from the Dominican Republic to teach bilingual education in city schools.

It's the details of the shakedown, however, that will shake you.

EEOC Commissioner targets companies offering employees abortion travel benefits

In the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization that ended federal constitutional protections for abortions as a fundamental right, many employers in states in which abortions suddenly became illegal started offering employees out of state travel benefits for abortion access.

Now, not even five months later, Bloomberg Law reports that Republican EEOC Commissioner Andrea Lucas has launched targeted discrimination investigations against at least three of those companies. 

Corporate lawyers represent the company, not its employees

News broke last week of Elon Musk's lawyer reassuring Twitter's remaining employees that they should not worry about potential criminal liability for FTC violations the company may have committed in failing to abide by a 2021 consent order with the agency.

In and of itself, that sentence may seem innocuous enough … until you stop, think, and break down the parties involved. The CEO's lawyer was talking to Twitter's employees … who are not his clients.

WIRTW #650: the “Mastodon” edition

Call me a Twitter Armageddon Prepper. I'm not ready to abandon Twitter … yet. Even with Elon Musk in charge, I have 14 years and way too much human capital invested to jump ship even I think the Chief Twitterer is a twit.

But I'm also not convinced that Musk won't burn the whole platform to the ground. He's laid off half of the company's employees, some of whom are warning that the website is "built on sticks, and might … fall apart." Advertisers (along with their crucial revenue) are fleeing it in droves. Musk is banning users in a manner that is antithetical to his "free speech" ethos. The company's cybersecurity chief quit, along with its head of trust and safety, chief privacy officer, and chief compliance officer. Heck, even the Muppets quit. And in news that should surprise no one, Musk's paid account verification system is an absolute mess. We're all aboard the digital Titanic.

The Bird is a hot mess, and not in a "rising phoenix" kind of way. It's more of a "deep-fried turkey that boils over and burns the house down" kind of way. Or a "Twitter will soon be bankrupt" kind of way.

Thus, I've been looking for an alternative … just in case. Like many, I've landed on Mastodon as a potential Twitter replacement.

Mastodon is a microblogging platform similar to Twitter in many ways. 

• Mastodon has toots (compared to Twitter's tweets).
• Toots are limited to 500 characters (compared to Twitter's 280).
• You can favorite and boost other user's posts (as compared to liking and retweeting), but you can't quote.
• Hashtags are still hashtags.
• Mastodon's layout, look, and feel will appear very familiar on the web and on its mobile app to anyone who's ever used Twitter. Updates, however, are sorted chronologically instead of algorithmically 

The key difference, however, exists on Mastodon's backend. Mastodon isn't its own standalone website. Instead, it's a series of connected private servers that communicate with each other. When you sign up for a Mastodon account, you sign up to become a member of a particular server, privately hosted and moderated, and not part of Mastodon as a social media platform. Because all of the servers communicate with each other and you see posts from any server, as best as I can tell it doesn't necessarily matter the server to which you belong, and you're always free to switch servers at any time. 

And that's all I know. My account is parked at @jonhyman@toot.community. If you decide to give Mastodon a try, let me know by following me, and I'll be sure to follow you back.

Here's what I read this past week that you should read, too.