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WIRTW #546 (the “Arrivederci” edition)

Today is good bye … but only for two weeks. My kids' school gives them that much time off for Spring Break each year. So we are headed to Italy. Rome and Florence to be precise. I'll be back on April 1 (no foolin') with some thoughts about what I learned on my Spring Break. In the meantime, if you have any last minute tips on what to do, see, or eat in either of these cities, drop a note in the comments below. Here's what I read this week: Discrimination Two-Percent, Schmoopercent — via Kate Bi...
Tags: Spotify, Texas, Law, Congress, Chicago, Ada, Florence, Harvard Business Review, Joe, Citrix, Jonathan, EEOC, NLRA, Eric Meyer, FLSA, Jon Hyman


Share or Retweet if you care about paid parental leave

Earlier this week, Republican Senators Joni Ernst and Mike Lee introduced the Child Rearing and Development Leave Empowerment Act (the CRADLE Act). It is a first step towards providing some measure of paid parental leave to American workers. Yet, it has some serious flaws. The Cradle Act would provide up to three months of consecutive paid parental leave benefits to news moms and dads following the birth or legal adoption of a child. It not only applies biological parents and those that legally ...
Tags: Law, Social Security, Mike Lee, Lee, Joni Ernst, FMLA, Jon Hyman, Brittany Simuangco


The 8th nominee for the “worst employer of 2019” is … the lascivious leader

I can't do any better of job than the EEOC did in describing the parade of horribles the one supervisor wrought at Sys-Con, a Montgomery, Alabama, general contractor: According to the EEOC's lawsuit, from December 2015 to May 2017, a supervisor at Sys-Con's worksite at the Hyundai manufacturing plant in Montgomery, demanded sexual favors from two non-English speaking Hispanic female employees and watched pornographic videos in front of them. The EEOC further charged that the supervisor se...
Tags: Law, Hyundai, Montgomery, Montgomery Alabama, EEOC, Eric Meyer, Jon Hyman


The FLSA's salary test just doesn't matter

By now you've likely heard that the Department of Labor announced its intent to increase the qualifying salary threshold for its white collar exemptions from $455 per week ($23,660 annually) to $679 per week ($35,308 annually). I'm here to tell you that this increase just doesn't matter. Why? Because for an employee to qualify as exempt, he or she still must meet one of the various white-collar duties tests. Administrative: The employee's primary duty must be the performance of office or non-m...
Tags: Law, Drake, Department of Labor, FLSA, Jon Hyman, Steak N Shake Operations Inc, Stake N Shake


What a lawful "civility" policy looks like under the NLRB's Boeing test

Consider and compare the following workplace civility policies: Commitment to My Co-Workers I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team. I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately. I will not complain about another team member and ask you not to as ...
Tags: Law, Boeing, Nlrb, NLRA, Jon Hyman, My Co, NLRB Office of General Counsel, My Co Workers


What a lawful "civiliity" policy looks like under the NLRB's Boeing test

Consider and compare the following workplace civility policies: Commitment to My Co-Workers I will accept responsibility for establishing and maintaining healthy interpersonal relationships with you and every member of this team. I will talk to your promptly if I am having a problem with you. The only time I will discuss it with another person is when I need advice or help in deciding how to communicate with you appropriately. I will not complain about another team member and ask you not to as ...
Tags: Law, Boeing, Nlrb, NLRA, Jon Hyman, My Co, NLRB Office of General Counsel, My Co Workers


WIRTW #545 (the “International Women's Day” edition) #IWD2019

Happy International Women's Day! I didn't always consider myself a feminist. But I'm proud to call myself one ever since May 27, 2006—the day my daughter was born. It wasn't that I was hostile to the issue; I just never engaged in any active thought about it. Now that I have a female life for which I am responsible, I fully embrace the term. I worry about the world in which she lives, and how that world may treat her because of her sex. ❔ Will she have the same opportunities? ❔ Will she earn the...
Tags: Facebook, Law, Connecticut, Ada, Harvard Business Review, Aba, Eric Meyer, Jeff Nowak, OSHA, Dan Schwartz, FMLA, FLSA, Jon Hyman, Suzanne Lucas, Mike Haberman, John Sumser


As seen on Reddit: Salary discussion bans are a BIG legal no-no

AriesAviator posted the following question in the LegalAdvice subreddit: Boss just threatened to fire me and another co-worker because we were discussing a raise we both got- what should I do? We both got pulled into a group chat over the app our work uses, and the first message reads as follows; Hey I don't want to here about your raises with the other crew members we talked about this before, other places have strict rules either termination or reversal of the raise this is not okay, Don't ...
Tags: Law, Reddit, Nlrb, Don, Boeing Co, NLRA, Jon Hyman, Branden Tate


Emotional outbursts as ADA-protected disabilities

The term hysteria comes from the Greek word hysterika, meaning Uterus. In ancient Greece it was believed that a wandering and discontented Uterus was blamed for that dreaded female ailment of excessive emotion, hysteria. The disease's symptoms were believed to be dictated by where in the body the offending organ roamed. It was not religious belief but a social belief. Hysteria https://academic.mu.edu/meissnerd/hysteria.html Less than two months after Jessica Mullen's hysterectomy, she applied...
Tags: Greece, Law, Ada, Mullen, Fisher, Frances Fisher, Prentiss, Merry, Jon Hyman, Jessica Mullen, Julie Prentiss, Rachel Merry Mullen


The 7th nominee for the “worst employer of 2019” is … the disability debaser

The 7th nominee for the Worst Employer of 2019 is an employer that (allegedly) permitted a nearly year-long campaign to malign and harass an employee living with ADHD and Tourette's syndrome. Melinda Crooke worked as a line worker for Herbruck Poultry Ranch, a Western Michigan egg farm. As noted above, she has ADHD, which causes her to be overtly talkative and sometimes confused, and Tourette's Syndrome, which manifests in head twitches, facial tics, uncontrolled arm movements, and occasional ...
Tags: Law, Tourette, EEOC, Western Michigan, Jon Hyman, Crooke, Melinda Crooke, Mindy Tourette, Gabby Motormouth


Harassment need not be "hellish" to be actionable

Gates v. Board of Education of the City of Chicago (7th Cir. 2/20/19) asks a question that we see time and again in harassment cases—how bad does does the conduct have to be to support a harassment claim. The answer is bad enough, but not so bad so as to be classified as "hellish." Gates is a racial harassment case. The plaintiff worked as an engineer at a Chicago school. He alleged that his supervisor, Rafael Rivera, committed three distinct acts of harassment over the nine-month period spanni...
Tags: Law, Chicago, Gates, Board of Education, Rivera, Wen, Cir, 7th Circuit, Rafael Rivera, Jon Hyman


WIRTW #544 (the “it's a shame” edition)

I love how my kid's school embraces their individuality and creativity. Back in the fall, my wife and I had a quick conversation with one of Norah's teachers about her music, which led to him suggesting that she bring her guitar to school to share a song at one of their Wednesday morning all-division meetings. After a few weather related false starts, Norah finally had her chance this week. She chose to play It's a Shame, by First Aid Kit. I fully understand that I am a biased dad. But, I also t...
Tags: Minnesota, Law, Comcast, Bill, Omega, Florida Bar, Eric Meyer, Jeff Nowak, OSHA, Dan Schwartz, FMLA, Business Insurance, Jon Hyman, Norah, Mike Haberman, Hunton Employment Labor Law Perspectives


The legalities of employee mass walkouts vs. the practicalities of avoiding them in the first place

Three central Ohio Sonic restaurants are without employees after their entire staffs walked off the job in protest against new management and its policies. According to The Scioto Post, employees left a handwritten note on the door, reading in part, "Due to terrible management the whole store has quit. The company has been sold to people that don't give a f*uck about anyone but themselves." The dispute stems from new management cutting wages from at or near minimum wage to a tipped employee wage...
Tags: Law, Nlrb, Inc, Jon Hyman, Suzanne Lucas, Tim Gouw, Ohio Sonic, The Scioto Post


What a morning at the BMV teaches about cybersecurity

I spent way too much of my Saturday morning at the local Bureau of Motor Vehicles (aka the Walmart of government agencies). "Why," you ask? Because my plates were on the verge of expiring, and I had forgotten to take advantage of the much preferable online registration process. So there I found myself at 10 a.m. Saturday morning, waiting in line. To be fair, it was the "express" line, designated for license renewals only. My experience, however, was less than express, thanks to the patron two sp...
Tags: Law, Walmart, Vpn, Dashlane, Intuit, Turbotax, Wikimedia Commons, Bureau of Motor Vehicles, CC BY SA, BMV, Jon Hyman, Paulius Dragunas, Fabio Lanari


You're never too small to have an HR department

43 percent of American employees work for companies with 50 or fewer employees. I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel. Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees' butt...
Tags: New York, Law, Nevada, Human Resources, Ihop, EEOC, Jon Hyman, Human Resources Department


WIRTW #543 (the “terrible, horrible, no good, very bad day at the office” edition)

What was your worst day at work? Does it top the day that Cleveland criminal defense attorney Aaron Brockler had this past Tuesday? I'll let Cleveland.com explain what happened: A Warrensville Heights man shocked a courtroom full of spectators Tuesday when he sucker-punched his own defense attorney after a judge sentenced him to 45 years in prison…. Cuyahoga County sheriff's deputies took down David Chislton after the 42-year-old struck lawyer Aaron Brockler in the face with both of his han...
Tags: Google, Minnesota, Law, Social Media, Mlb, Cleveland, Nlrb, Joe, Cuyahoga County, Robin Shea, Warrensville Heights, Eric Meyer, John Grisham, FLSA, Jon Hyman, Suzanne Lucas


If you want to stop workplace harassment, start by educating our children

How soon is too soon to start talking about harassment? If we're talking about your workplace, the correct answer is that it's never too soon. You should start talking to your employees about your anti-harassment / anti-bullying / respectful workplace policies, expectations, and culture on Day One. A discussion should be part of each new hire's on-boarding and orientation. What about outside of your workplace? If your employees come to you as bullies, no amount of respectful workplace training i...
Tags: Law, Jon Hyman, Pixabay, Bravo Lake Ridge Academy Bullying


The 6th nominee for the “worst employer of 2019” is … the diverse discriminator

How many different ways can one employer discriminate? How about eight. The EEOC recently settled a national origin and disability discrimination lawsuit against a staffing agency, brought on behalf of a group of Latino employees working at an Alabama poultry plant. The eight different acts of discrimination alleged by the workers? They were harassed, which included ethnic slurs, threats, verbal abuse, and other abusive working conditions. They were paid less than they were promised. They w...
Tags: Law, Alabama, Birmingham, EEOC, Jon Hyman, Marsha L Rucker, Bradley Anderson


The FMLA does not require that an employee use magic words to request leave

According to the FMLA's regulations, "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA." Courts do not interpret this burden as a heavy one. An employee need not use the letters "F-M-L-A," or any other magic words to request leave under the statute. As long as the employee provides enough information for the employer to reasonably conclude that an FMLA event described has occurre...
Tags: Law, Court, Keogh, Joshua, Gill, Blum, FMLA, Jon Hyman, Celestino, Concentra Health Services Inc, BH Media Group Inc


Do you know how to spot an employee at risk for violence?

Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police. After the news of this tragedy broke, reports surfaced of Martin's history of violence—six prior arrests by the local police department for domestic violence, and a decades-old felony con...
Tags: Law, Smith Wesson, Martin, Jon Hyman, Gary Martin, Sofia Sforza, Henry Pratt Co, ESI Group


WIRTW #542 (the “Scared. Ashamed. Crippled.” edition)

A few days ago, Mark Goldstein, an attorney at Reed Smith, tweeted me (and others) this:   If you read on thing this week, read Mark's article, 'Scared. Ashamed. Crippled.': How One Lawyer Overcame Living With Depression in Big Law. We are in the middle of a mental health crisis in America. The more we talk openly about it, the more it becomes de-stigmatized, and the more comfortable those suffering will be to come forward and seek the help they need. It took a lot of courage for Mark...
Tags: Law, America, Iowa, Reed Smith, Omega, Mark, Robin Shea, EEOC, Eric Meyer, Donna Ballman, Ragan, OSHA, Dan Schwartz, SHRM, Mark Goldstein, Jon Hyman


When the rumor mill creates a sexually hostile work environment

Just in time for Valentine's Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn't, but the workplace rumor mill sure thought she was. Evangeline Parker began working for Reema Consulting Services, Inc., as an entry-level clerk. She received six promotions during her first 15 months of employment, ultimately to the position of Assistant Operations Manager. Two weeks after her final promotion, Parker learned that "certain male employees were ...
Tags: Law, Boeing, Nlrb, Parker, Pickett, 4th Circuit, RCSI, Jon Hyman, Ben White, Evangeline Parker, Reema Consulting Services Inc, Demarcus Pickett, Larry Moppins, Moppins, Donte Jennings, Reema Consulting Services


The way we work might be changing, but independent contractors risks are staying exactly the same

The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship.  So starts the 6th Circuit's opinion in Acosta v. Off Duty Police Servs., which applies the traditional "economic realities" test to determine whether private security and traffic control officers are employees or independent contractors. One would think that w...
Tags: Law, America, Acosta, Jon Hyman, Pixabay, ODPS, FLSA Off Duty Police Servs


A textbook lesson the ADA's interactive process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA? You might be inclined to say, "Of course." The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA's interactive process with the employee during the leave. For your consideration: Brunckhorst v....
Tags: Law, City, City Council, Ada, Fournier, 8th Circuit Court of Appeals, FMLA, Jon Hyman, Brunckhorst, City of Oak Park Heights, Gary Brunckhorst, Oak Park Heights Minnesota, Brunckhors


WIRTW #541 (the “Purl” edition)

Purl is an online-only Pixar short about a ball of yarn appropriately named Purl who gets a job in a bro-tastic workplace. As the only female, and only ball of yarn, working at B.R.O. Capital, she struggles to fit and yearns for acceptance from her all male, all human, co-workers. Purl's story has a lot to say about diversity and inclusion, and is well worth the just under nine minutes of your time. Here's what I read this week: Discrimination Ageism: A White Man’s Introduction To Discriminatio...
Tags: Minnesota, Law, Youtube, Pixar, Facetime, Harvard Business Review, Joe, Trump, Eric Meyer, Pearce, OSHA, PURL, Jon Hyman, Suzanne Lucas, Laurie Ruettimann, Kate Bischoff


FINRA's new "Best Practices" for Cybersecurity is MUST reading for any employer

The Financial Industry Regulatory Authority (FINRA) recently issued its Report on Selected Cybersecurity Practices – 2018 [pdf]. The Report identifies five common cybersecurity risks and outlines recommended practices for each: Branch controls Phishing attacks Insider threats Penetration testing Mobile devices  While FINRA only regulates securities firms, the five topics its Report covers should be required reading for any employer that wants to understand how to implement cybersecurity bes...
Tags: Law, FINRA, Jon Hyman, Financial Industry Regulatory Authority FINRA, Nahel Abdul Hadi


President Trump calls for federal paid family leave during State of the Union

Yesterday was the 26th anniversary of the Family and Medical Leave Act being signed into law. During last night's State of the Union Address, President Trump called for Congress to make paid family leave a federal law. I am also proud to be the first president to include in my budget a plan for nationwide paid family leave — so that every new parent has the chance to bond with their newborn child. The devil is very much in the details. We have zero idea what this law would look like. W...
Tags: Law, Congress, United States, Trump, FMLA, Jon Hyman


How to recover a stolen computer from an ex-employee in seven easy steps

As many as 60% of employees who are laid-off, fired, or quit admit to stealing company data. Sometimes, they download information on their way out the door. Sometimes they email information to a personal email account. And sometimes they simply fail to return a company laptop or other device that contains the data. In the latter case, it costs an average of $50,000 for an employer to replace a stolen computer, with 80% of that cost coming from the recovery of sensitive, confidential, and prop...
Tags: Law, Institute, Jon Hyman, Electronic Communication and Technology Policy, Simon Hattinga Verschure


The 5th nominee for the “worst employer of 2019” is … the fishy fishery

Atlantic Capes Fisheries agreed to pay $675,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation. The allegations that lead to the settlement, and this nomination as the worst employer of 2019? A male supervisor, Fidel Santos, asked a new female employee, Esdeyra Rosales, about her personal life, stood close behind her while she was working, touching her back, hips, and buttocks. When she objected, he told her there was no work for her. When Rosales asked, and w...
Tags: Law, Santos, EEOC, Fuentes, Rosales, Jon Hyman, Atlantic Capes Fisheries, Fidel Santos, Esdeyra Rosales, Rosales Santos, Margarita Fuentes Mirna Pacaja, Pacaja, Sara Smolik


WIRTW #540 (the “wheels off” edition)

The one question people ask me more than any other about this blog? "How do you write every day?" My answer, "Because I love it." The practice of law, for all of its challenges and rewards, can be mundane. This blog lets me be creative. I love the creativity of sharing information in a manner that makes it accessible and entertaining. If I didn't love this creative process, this blog would have died long ago, instead of just having passed 3,000(!) posts since it's inception nearly 12 years ago. ...
Tags: Google, Law, Obama, Washington Post, Ohio, Bloomberg Businessweek, Ada, Harvard Business Review, Cyberspace, Rhett Miller, Robin Shea, Circuit Court, Rosanne, Eric Meyer, OSHA, FMLA



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