Failure to advise employer of a disability dooms employee’s ADA claim

True or false — An employer must always reasonably accommodate an employee’s disability if necessary to permit the employee to perform the essential functions of the job unless it causes an undue hardship on the employer?

Answer — False. An employer does not have an obligation to grant a reasonable accommodation that an employee never requests.

Case in point: Mueck v. La Grange Acquisitions.

Employers need to be more vigilant than ever with anti-Jewish and anti-Muslim bias

Not all Jews are Zionists colonizers, and not all Muslims are Hamas terrorists. In fact, most aren't. Moreover, you can oppose the policies or actions of the Israeli government without being antisemitic and oppose Hamas without being anti-Muslim.

Yet, the ongoing conflict between Israel and Hamas has brought the Israeli-Palestinian conflict front and center into our lives, and as a result also into our workplaces. You can't stop employees from talking about current events, especially when those events are so horrific and so impactful on so many of us. Your employees will be talking about what's happening in Israel and Gaza. The key for employers is to make sure those discussions remain calm and respectful.

Join me tomorrow: Tips on Tips webinar (free)

I spent my Saturday night at 8th Day Brewing Company watching my 17-year-old daughter, Norah, play a killer 3-hour set of music. When we sat down at our table, I was giddy to find the latest issue of The New Brewer, the bi-monthly trade magazine of the Brewers Assocation. That issue features my article on how to legally pay tipped employees.

Since access to the magazine and my article are for BA members only, you won't be able to read it if you're not a BA member (unless you happen to wander into a brewery that has it on display).

I can, however, offer you a great alternative. Tomorrow at 4 pm ET, I'm presenting Tips on Tips: How to Legally Pay Your Tipped Workers, a free webinar for the Craft Beer Professionals Fall Virtual Conference. You can watch live on the Craft Beer Professionals Facebook page or on its YouTube channel. 

WIRTW #691: the “football” edition

Today, I'd like to use this space to celebrate the Lake Ridge Academy soccer team. They just completed their best season in 15 years! As a result, they secured the second seed and a first round buy in their state tournament district. And yesterday, they demolished the top seed (and potential third round opponent) 5-0. 

I'd like to say that their success is all because Donovan joined the team this year. But I'm also a realist. They are just a really good group of teens who gelled very well as a team. 

The state tournament starts on Thursday against a team tbd, and I'll be sure to keep everyone updated on the Royals' march to the final four in Columbus.

Finally, for the locals, if you're looking for something to do on a rainy Saturday night, Norah is playing tomorrow from 6-9 at 8th Day Brewing Company in Chagrin Falls. 

Everyone have a great weekend!

Would you fire this employee?

International law firm Winston & Strawn has withdrawn its job offer to an NYU law student who published and distributed inflammatory comments regarding Hamas' recent terrorist attack on Israel.

Here's what this individual wrote:

I want to express, first and foremost, my unwavering and absolute solidarity with Palestinians in their resistance against oppression towards liberation and self-determination. Israel bears full responsibility for this tremendous loss of life. This regime of state-sanctioned violence created the conditions that made resistance necessary. I will not condemn Palestinian resistance.

The firm was swift in its decision:

These comments profoundly conflict with Winston & Strawn's values as a firm. Accordingly, the Firm has rescinded the law student's offer of employment.

“Misgendering” is NOT a thought-crime

The EEOC is NOT trying to make "misgendering" a thought-crime.

The agency recently proposed new Enforcement Guidance on Harassment in the Workplace. Contained with that guidance is the EEOC's legally correct statement that the "intentional and repeated use of a name or pronoun inconsistent with the individual's gender identity" could create a hostile work environment constituting unlawful sexual harassment. That interpretation of Title VII by the EEOC is consistent with judicial opinions dating back nearly a decade.

In response, Andrea Picciotti-Bayer, Director of the Conscience Project, wrote an op-ed on thehill.com taking the EEOC to task for its alleged "thought-policing."

Office lottery pools

More money, more problems. After 36 consecutive drawings without a winner, the next Powerball drawing has a prize of approximately $1.75 billion. Many workplaces will be organizing pools to buy as many chances as possible. With that much money on the line, however, if you’re office pool is lucky enough to win you’ll also probably be unlucky enough to be sued.

Everyone is your friend until you’re looking at nearly two billion dollars; then greed causes those friendships to go out the window and lawyers to be hired.

WIRTW #690: the “Lou-Lou-Lou-Lou-Loula” edition

On the latest episode of The Norah and Dad Show, Norah and I remember Loula, our beloved vizsla who died last week. Different people deal with grief and loss in different ways; for me, talking about her helped me deal with my grief, a lot.

You can listen on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, Castro (my podcast player of choice), on the web, or wherever you get your podcasts.

Rest periods v. Meal periods

Do you know the difference between a break period and a meal period during an employee's work day? It's an important distinction because one does not count as working time, while the other does.

Federal law does not require an employer to grant employees rest or meal periods during the work day. (Some states do require them depending on the total number of hours worked; mine, however, does not.)

Federal law does, however, provide for whether meal and rest breaks are counted as "hours worked." This distinction is important. If time is counted as "hours worked," it goes into the calculation of time worked during the work week for consideration of whether the employee has crossed the 40-hour threshold for overtime pay.

The one thing your business can do right now to cut your potential FLSA liability in half

Q: What is the one thing that your business can do RIGHT NOW to cut your potential FLSA liability in half?

A: Hire an employment lawyer to conduct a wage and hour audit.

Case in point: Hendricks v. Total Quality Logistics.

After 13(!) years of litigation, a federal judge recently ruled that TQL violated the Fair Labor Standards Act and must pay unpaid overtime to thousands of misclassified employees.

The judge also ruled that TQL must pay statutory liquidated damages under the FLSA in an amount to the unpaid overtime because TQL did not establish that it acted in good faith in (mis)classifying its employees.

How bad do wage and violations have to be for a federal judge to order you to sell your business? This bad.

A federal district court judge has ordered the owners and operators of 14 Subway restaurants to pay employees nearly $1 million in back wages and damages and further ordered them to sell or shut down their businesses within 60 days.

The wage and hour violations included:

Loula.

Thursday night, we made the very difficult decision to let our beloved family member, Loula Mae, go.

It was one of the hardest decisions we've ever had to make as a family.

She had too many not good things happening inside of her. After two days of testing the vet had no idea why her red blood cell levels kept dropping and not regenerating. There were also suspected cancer cell from a substantial mass that had suddenly formed under her armpit, which had quickly spread across her chest and down to her belly. The preliminary diagnosis was either cancer bleeding to her body causing the anemia, or the cancer triggering an autoimmune amenia.

Either way, all of the potentials were various degrees of awful. Thus, we made the painful decision to let her go instead of putting her through months of suffering with an uncertain outcome and only a small chance of her having any quality of life in the future.

WIRTW #689: the “134” edition

134. That's how many different available positions Costco offered to Monica Barnett over a nearly nine-month period in an effort to accommodate her knee and wrist injuries.

0. That's how many of the offered positions Monica Barnett applied for or requested placement.

1. That's the number of paragraphs it took the 9th Circuit Court of Appeals to affirm the dismissal of Barnett's failure to reasonably accommodate claim. In the Court's words:

Barnett claims Costco refused to engage in good faith, "forced" her to remain on medical leave, and required her to be "100% healed" before returning to work. These assertions are unsupported by the record. The undisputed record demonstrates that Costco held three job assessment meetings, sent Barnett 134 available positions over more than eight months, and placed Barnett in an optical-assistant position that accommodated her limitations.

Sometimes, no matter how hard you try as an employer to do right by an employee, the employee is going to sue. In those cases, all you hope is that you have your i's dotted and t's crossed, all of your contemporaneously made documentation is in order, and a judge or jury will see the case for what it is and find in your favor.

Employees shouldn’t have to choose between their religion and their job

Is there any legitimate reason a concierge must be clean shaven as a condition of employment? That question is at the center of a new lawsuit the EEOC filed against Blackwell Security Services.

The EEOC alleges that a Blackwell supervisor told a Muslim hiree that it was company policy that all employees be clean shaven. When the employee requested an exemption from the policy to accommodate his religious practice, Blackwell told him to shave his beard or be terminated. To avoid losing his job, the employee complied and shaved his beard. The EEOC charge and its lawsuit followed.

The two main reasons why employers shouldn’t retaliate

Social media giant TikTok is in some legal hot water for its alleged mistreatment of its employees. According to NPR, two Black employees allege that TikTok fired them after they complained to HR about racial discrimination within the company.

WIRTW #688: the “(not) Progressives” edition

Misgendering a transgender employee + forcing him to out himself to his coworkers + passing him over for a promotion + subjecting him to an unwanted office transfer + scrutinizing his medical appointments and other time off + ignoring his three HR complaints = a jury trial for Progressive Insurance on claims of sexual harassment, discrimination, and retaliation.

According to the plaintiff, the first four years of his employment at Progressive were without incident, until he informed his supervisor of his intent to transition from female to male. That's when he alleges the mistreatment began, and continued for the final four years of his employment until he quit.

Transgender people are under attack. This lawsuit is a symptom of a much larger problem in workplaces across our country. Trans employees often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender nonconforming. Otherwise, you just might find yourself at a receiving end of a well-deserved and difficult-to-defend lawsuit. Just ask Progressive Insurance.

The case is John Doe v. Progressive Ins., and you can find the court's summary judgment opinion here.

Facebook Messenger and other alternative communication channels for attendance call-outs

An employee uses Facebook Messenger to notify his supervisor of a medical absence, ignoring the company's policy that requires employees to use a specific call-in line to notify their supervisor of a tardy or absence at least 30 minutes before their shift begins.

Are these absences FMLA-protected excused absences, or unexcused absences subject to termination?

In 2019, Kasey Roberts took six weeks of leave to undergo and recover from an emergency appendectomy, after notifying his supervisor via Facebook Messenger. A few days after returning, Roberts was hospitalized for a post-surgical infection. He again sent his supervisor several Facebook messages notifying of his absences.

After Roberts missed three more weeks of work, his employer fired him for job abandonment, claiming that all of his absences were unexcused since the call-in line, and not Facebook Messenger, was its "usual and customary" system for medical leave notice.

Let’s play FLSA error-spotting

Empire Diner pays its servers a tipped minimum wage of $2.83, the permissible tipped minimum wage in the state in which it's located, Pennsylvania. According to the company's payroll records, each employee earns more than the statutory minimum wage, $7.25 per hour.

So far, so good under the Fair Labor Standards Act. So where did Empire Diner make its FLSA mistakes, according to the 3rd Circuit?

The 10th nominee for the “Worst Employer of 2023” is … the jack(a$$) in the box

The EEOC recently filed a lawsuit against a Jack in the Box restaurant owned and operated by Eastbox LLC, alleging sexual harassment against teen and young adult female employees. 

The allegations are horrific. 

WIRTW #687: the “red rain” edition

What was your worst day at work? 

If you work at Destilaria Levira, in Levira, Portugal, it was almost certainly this past weekend, when two wine storage vats exploded, flooding the town with 2.2m liters of "good quality" red wine. 

But a company is not defined by its disasters, it's defined by how it handles them after the fact. And this business handled his disaster very, very well.

"Dear Neighbors," its Facebook post began. 

We deeply regret the incident that occurred this morning involving the bursting of 2 suitable-to-consumption DOC wine storage units stemming from the extraordinary government support measure to producers and wineries of the Distillation Crisis 2023 motivated by the excess of wine in the country. 

Although the incident did not cause any injuries, we want to express our sincere concern for the damage caused in general in Levira and in particular to his home.  

 

The causes of the incident are being investigated by the competent authorities. 

We take full responsibility for the costs associated with damage cleanup and repair, with crews available to do it immediately. We're committed to resolving this situation as soon as possible.

Please keep photographic records of damages and damages and contact us to discuss the details and coordinate the necessary procedures. We are available at any time to help you resolve this issue.

Once again we apologize for the inconvenience caused and we're committed to doing whatever is necessary to remedy the situation.

Thank you very much and once again, we are very sorry.