Color me unsurprised that businesses are already using 303 Creative to discriminate

If a human identifies as anything other than a man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.

Those are the words of Christine Geiger, the owner of Studio 8 Hair Lab, in a post on the business's now-deleted Facebook page. In a still-available comment on another Facebook page, Geiger says, "I have no issues with LGB. It’s the TQ+ that I'm not going to support. For those that don't know what the + is for, it's for MAP (Minor Attracted Person aka: pedophile)." Meanwhile, the business's private Instagram page describes itself as, "A private CONSERVATIVE business that does not cater to woke ideologies." 

We get the point. Geiger doesn't like transgender people and is using her religion and the Supreme Court's decision in 303 Creative v. Elenis to justify her discrimination.

“Geographical discrimination” is NOT a thing

"If you don’t relocate and return to in-person work, we’re going to have to let you go." Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back.

According to a recent report, employees are considering suing their employers for geographical discrimination. 

Workers who moved to another city, state, or even country from their employer's main office during the pandemic are claiming that they're being discriminated against geographically by being forced to return to in-person work.

If you can’t beat ’em, sue ’em.

“Competition is fine, cheating is not.” That’s what Elon Musk tweeted after Twitter’s lawyer’s cease and desist letter to Mark Zuckerberg went public.

Twitter accuses Meta of engaging “in systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

The problem, however, is that according to Meta, “No one on the Threads engineering team is a former Twitter employee — that’s just not a thing.” 

WIRTW #677: the “de minimus” edition

Employee: "I can't work Sundays. It's against my religion."

Employer (before yesterday's Supreme Court decision in Groff v. DeJoy): "I'm sorry, but it's an undue hardship for us to redo our entire schedule and require another employee to work in your place. Unless you can find a volunteer co-worker to cover your shift, we can't accommodate you. In that case, any absences are unexcused and will be treated as such under our attendance policy."

Employer (after yesterday's Supreme Court decision in Groff v. DeJoy): "Let's talk."

Groff examined the standard for an employer to assert an undue hardship defense to an employee's religious accommodation request under Title VII. Until yesterday's opinion, an employer could reject an employee's request for a religious reasonable accommodation request if it would impose "more than a de minimis cost." Groff, however, rejected the long-applied de minimus standard. The Supreme Court held:

Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

This is a paradigm shift for how employers must consider reasonable accommodations for employees' sincerely held religious observance or practices. Ultimately, an employer will have to evaluate, and a court may have to make a common-sense determination, whether the impact of a potential accommodation is too great for an employer to bear — something akin to a "substantial additional cost" or a "substantial expenditure." It's still a case-by-case factual determination, but it's one that now has some teeth behind it for the employee seeking a religious accommodation.

The Court went on to add to this undue hardship is not the same undue hardship test as courts apply under the ADA ("significant difficulty or expense"). Further, because much of existing EEOC guidance on Title VII religious accommodations focus the accommodation itself, and not the undue hardship test, it's likely mostly still good guidance on which employers, employees, and courts can rely. 

Still, we shouldn't downplay the significance of this decision, especially coming off the heels of a pandemic's workplace vaccine mandates that forced many employers to confront the issue of religious accommodations for the very first time. 

Employers, your job in evaluating religious accommodation requests just became that much more rigorous. The good news, however, is that even though the hardship standard is not quite the same as under the ADA, we should all at least be used to the rigors of the interactive process from years of handling myriad disability accommodations. 

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

“Loud quitting”

Quiet quitting is so 2022. According to CNBC (citing Gallup’s 2023 State of the Global Workplace Report) loud quitting is all the rage.

What is loud quitting? Employees who "take actions that directly harm the organization, undercutting its goals and opposing its leaders." Such actions include, for example, bad-mouthing their boss on LinkedIn on their way out the door or riling up co-workers before they leave.

The Gallup survey blames management for this crisis. "At some point along the way, the trust between employee and employer was severely broken," Gallup wrote. "Or the employee has been woefully mismatched to a role, causing constant crises." 

I say, "Hogwash!" 

Employer correctly fires employee for posting racist meme, court says

Rita Hall worked as a line supervisor at Kosei St. Mary's Corporation when she decided to post a meme of two juxtaposed photos on her personal Facebook page — one photo of a group of monkeys on and around a car, and a second photo of a group of Black people on and around a car. At least three of Hall's subordinates and coworkers filed complaints with KSM's human resources department about the racist meme, and the company subsequently terminated Hall because of it.

In her wrongful discharge lawsuit, the court of appeals had a lot to say about Hall's free speech rights at work, none of it good for the former employee or her lawsuit.

Can an employer disable online commenting to quell pro-union messaging?

There's a lot going on with the union organizing campaign at Creature Comforts Brewing Company. While the union (known as "BUG") continues to wait for the NLRB to schedule a representation election, BUG continues to accuse the brewery of illegal union busting. 

According to the BUG, the brewery (allegedly) illegally fired Spencer "Spicy" Britton, one of the union's biggest supporters. Moreover, the public and the brewery's employees can no longer express their opposition to the brewery's alleged union busting tactics by posting comments on Creature Comforts' Instagram posts. The brewery has disabled the ability to comment on all new posts since March 29.

I'd like to tell you that because the Instagram comment policy applies equally to everyone (non-employees and employees), there's nothing unlawful about it under the National Labor Relations Act. But with the current composition of the most pro-union NLRB in history and its equally pro-union general counsel, all bets are off. I'd have real concerns permitting a client to take this step under these or similar circumstances.

Yes, you can still fire employees for lying, even when they are seeking FMLA leave

67 employees of CSX Transportation submitted a required internal form requesting medical leave. Those requests had four key problems: 1.) each was submitted shortly after CSXT informed the employees that they would be furloughed; 2.) each was submitted by one of two chiropractors; 3.) each contained the same or substantially similar language referencing general minor musculoskeletal conditions such as sprains or muscle spasms with no individualized assessments and requiring at least eight weeks of leave; and 4.) they were all submitted within a very tight time period.

As a result, CSXT's Chief Medical Officer, Dr. Heligman, became suspicious of fraud. Following an internal investigation, which included an evidentiary hearing at which each employee could appear and testify, represented by their labor union, the company fired all 67 employees for violating its Code of Ethics and its policy against workplace dishonesty.

WIRTW #676: the “Portugal. The Vaction” edition

I've never wanted to be "that guy" who returns from vacation and says, "Let me show you my vacation photos." 

Well … Let me show you my vacation photos.

Portugal is simply magical. The people. The sights and scenery. The lifestyle. The food. The wine. All of it. This vacation had every opportunity to let me down. Covid had delayed it for more than three years. I built it up in my head as the vacation of all vacations. Not only did Portugal live up to my expectations. It exceeded it. 

So do yourself a favor and place Portugal on your short list of places to visit. And when you decide to go, let me know. I might just have a rental property to show you. (If anyone has a lead on a reasonably priced three bedroom home on Portugal's Silver Coast (the Atlantic coast between Lisbon and Porto), I'm all ears.)

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

How much does it cost a company never to hire any women?

USF Holland is recognized as one of the top 100 trucking companies in the country. It has also never hired a women in the 37-year history of its Olive Branch, Mississippi, terminal. 

According to the EEOC, since the terminal's opening in 1986, Holland failed to hire any female drivers (except for one it hired and fired before she completed her first route). The EEOC also uncovered that a significant number of qualified women with extensive truck driving experience applied for positions with Holland over the years, yet none were hired even when the women's qualifications were equal or superior to those of male applicants.

So what does this egregious violation of the law cost this Title VII scofflaw? Millions? Tens of millions? 

We need to talk about “wokeness”

"When I grow up, I want to be hired based on what I look like rather than my skills.… I want to get promoted based on my chromosomes.… I want to be offended by my coworkers and walk around of the office on eggshells."

Those are just a few of the quotes from some child actors in a viral YouTube ad for a company called RedBalloon.

RedBalloon is a job board to match anti-woke employees with like-minded employers.

Is your business prepared for the Pregnant Workers Fairness Act?

Consider the following scenarios:

• A pregnant employee has already used her annual allotment of FMLA leave and has no FMLA leave available to use for any reason.
• A pregnant employee has worked for you less than one year and therefore does not qualify for FMLA leave.
• You have fewer than 50 employees and therefore none of your employees, including your pregnant employees, qualify for FMLA leave.

Now consider a pregnant employee in any of these three situations who needs a leave of absence for the employee's limitations related to pregnancy, childbirth, or related medical conditions. What are your legal obligations?

The 7th nominee for the “Worst Employer of 2023” is … the pretend priest

"Forgive me Father, for I have sinned. Twice I asked a co-worker to punch my time card to cover my tardiness; once I called off sick when I was really playing golf; and I spoke to a Department of Labor investigator about my belief that I haven't be paid correctly."

Pursuant to a consent judgment with the Department of Labor, Che Garibaldi Inc., the operator of Taqueria Garibaldi, has agreed to pay $140,000 in back wages and damages to 35 employees based on claims that the employer used a fake priest to coerce confessions from employees and then used that information to retaliate against them.

WIRTW #675: the “all I ever wanted” edition

Vacation, all I ever wanted

Vacation, had to get away

The Go-Go's had a point. 

Tomorrow, I leave for my own vacation, one that I've waited three long years to take. We depart for two weeks in Portugal. I'll be back to regular posting on June 19, with photos to share and lessons learned during my travels.

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

10 ways to support your LGBTQ employees #pride

Today is the first day of Pride Month. June might be Pride Month, but your business should commit to and support its LGBTQ employees 24/7/365. Here are 10 ideas that incorporate this inclusion and demonstrate your support of your LGBTQ workers.

NLRB General Counsel Jennifer Abruzzo just obliterated non-compete agreements (maybe)

In my view, the proffer, maintenance, and enforcement of a non-compete provision that reasonably tends to chill employees from engaging in Section 7 activity … violate Section 8(a)(1) unless the provision is narrowly tailored to special circumstances justifying the infringement on employee rights.

With that sentence from NLRB General Counsel Jennifer Abruzzo's just-published memo — entitled, Non-Compete Agreements that Violate the National Labor Relations Act — Ms. Abruzzo sent employment lawyers (including this employment lawyer) scrambling to understand exactly what she said and what she means.

Here are 11.25 million reasons to settle a lawsuit

Before I will bless a client's decision to terminate an employee, I always ask this question: "Tell me about the demographics — race, sex, age, known disability, etc. Did they complain about something at work and when? If I go through your personnel records, will I find someone outside of the to-be-terminated employee's protected class whom you've treated better?"

Here's why I ask that question.

WIRTW #674: the “dogs” edition

Meet Loula and Dante, our dogs. 

They have a lot in common. They're both vizslas. They are both from the same breeder (whom I cannot more highly recommend for the care he puts into his own dogs, his puppies, and his puppies' owners). And they share the exact same birthday, May 8, albeit 7 years apart (Loula just turned 11, Dante 4).

One more thing they have in common — they are in the running for Cleveland's Cutest Pet. 

Here's my ask for all of you, my loyal, devoted, and appreciative readers. Click this link and vote for Loula and Dante. They would really love it. (I would, too.)

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

Pro tip: don’t monkey with an employee’s “regular” hourly rate to avoid overtime obligations

Let's say you have an employee who works 40 hours per week at the rate of $13.00 per hour. Now let's say that same employee needs to start working 20 hours of overtime per week to meet your needs. You still, however, want that employee to earn to same effective rate of $13.00 per week, so you reduce the employee's straight-time hourly rate of $11.15. When the need to work overtime ends, you then return the employee to the original $13.00 rate. Is the reduction of the employee's base hourly rate legal under the Fair Labor Standards Act? 

According to the 11th Circuit in Thompson v. Regions Security Services, the answer is "not unless you want a jury to decide the legality of your pay practices under the FLSA."

Uber suspends DEI exec over “Don’t Call Me Karen” events

Uber has suspended its longtime head of diversity, equity, and inclusion, Bo Young Lee, after Black and Hispanic employees complained that an event she ran — titled "Don't Call Me Karen" — was insensitive to people of color.

"Karen," in case you've lived an a cave without WiFi for the past half-decade, is slang for an entitled white woman who often complains to a management and the authorities about Black people and other minorities.