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Union membership is on the rise in Ohio; is your business ready?

Union membership numbers for 2018 are out, and while most employers should be encouraged, Ohio employers might think otherwise. In Ohio, the percentage of workers belonging to unions is at 12.6 percent, up 0.1 percent from 2017. Nationally, union membership sits at 10.5 percent, down ever so slightly from 2017. In other words, Ohio’s union representation is both greater than, and growing faster than, the national average. Thus, in Ohio, employers must deal with the reality that union membe...
Tags: Law, Obama, Ohio, Nlrb, Trump, Jon Hyman


The 4th nominee for the “worst employer of 2019” is … the flagrant farmer

I'll let the EEOC do the heavy lifting on today's nominee for the Worst Employer of 2019 (the 4th thus far): A federal jury rendered a verdict … awarding $850,000 in compensatory and punitive damages to a female farmworker at Favorite Farms in Dover, Fla., who was raped by her supervisor and reported it to police and management that same day.… The evidence at trial showed that management at Favorite Farms, which primarily grows strawberries, failed to properly investigate the complaint, and i...
Tags: Law, EEOC, Eric Meyer, Jon Hyman, Favorite Farms, Dover Fla, Instead Favorite Farms


The 3rd nominee for the “worst employer of 2019” is … the barbarous boss

2019 is officially the year that my Worst Employer contest went international. How do you motivate your employees to hit their sales goals? If you're the Runfa Hair Salon in Wuxi, China, you abuse the hell out of 'em. , employees who failed to sell 3,000 to 4,000 yuan ($436 to $582) worth of hair products each day suffered harsh physical punishment. How harsh? Employees were forced, in meetings in front of co-workers, to slap themselves in the face 100 times. If their face wasn't sufficiently...
Tags: Law, Jon Hyman, Wuxi China, Worst Employer 2019


Ohio amends its employment laws to limit joint employment for franchisors

As the debate over the meaning of "joint employer" continues to rage at both the NLRB and in the federal courts, Ohio has jumped into the debate by passing legislation to limit this definition under various Ohio employment laws. Effective yesterday, franchisors will not be deemed joint employers with their franchisees unless: the franchisor agrees to assume that role in writing or a court of competent; or a court of competent jurisdiction determines that the franchisor exercises a type or degre...
Tags: Law, Ohio, Nlrb, OSHA, FLSA, Jon Hyman


WIRTW #538 (the “drones” edition)

OSHA is now using camera-carrying drones to investigate outdoor workplaces. The good news? Use is intended to be limited to areas that are otherwise difficult and dangerous for OSHA inspectors to access. Plus, OSHA will not use them without an employer's consent. The bad news? Employers that withhold consent could face OSHA's ire and a search warrant. Plus, the program lacks any protections for things like scope of recording, employee privacy, or third-party access to the video. You can more abo...
Tags: Google, Law, United States, Connecticut, Hilton, Poland, SEC, Ohio, Huawei, Nlrb, Joe, Robin, Engadget, EEOC, Dave Buster, Eric Meyer


An expensive lesson on religious accommodations

A federal court jury in Miami has awarded a hotel dishwasher $21.5 million after concluding that her employer failed to honor her religious beliefs by repeatedly scheduling her on Sundays, and then firing her. According to the South Florida Sun Sentinel, Marie Jean Pierre is a member of the Soldiers of Christ Church, a Catholic missionary group that helps the poor. She claimed that she hold her employer that she needed Sundays off for her missionary work. The hotel accommodate her for the firs...
Tags: Law, Miami, Catholic, Pierre, South Florida Sun Sentinel, Jon Hyman, Marie Jean Pierre, Soldiers of Christ Church


Gillette's toxic masculinity ad isn't the problem; toxic masculinity is the problem

Gillette is facing a lot of praise, and a lot of backlash, over its recent ad slamming toxic masculinity culture. The ad offers two views of men. The first—a boy bullied and called a "sissy," a man grabs at a woman's rear, a businessman condescending to a female employee. During, a voice over notes that men make the same ol' "Boys Will Be Boys" excuses. Then, vignettes of men doing better—intervening to stop sexual harassment, being attentive fathers to their daughters, promoting peace over v...
Tags: Law, Fox News, Gillette, Greg Gutfeld, Jon Hyman


NLRB reverses course and restores some sense to its concerted activity rules

The NLRB is the federal agency that saw the widest expansion of employee rights during the Obama presidency. And the doctrine that expanded the most was the Board's definition of protected concerted activity. In Whole Foods Market, the NLRB had previously held that "activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action." In other words, a lone wolf could act in con...
Tags: Law, Obama, Nlrb, Board, The Board, Jon Hyman, Alstate Maintenance LLC, Alstate


What's good for the goose? "Reverse" LGBTQ discrimination

If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views? Bonnie O'Daniel claims that her employer, Industrial Service Solutions, fired her because she posted to her personal Facebook page a photo of a man in a dress at a Target store, and commented on his ability to use the women's restroom or dressing room. O'Daniel furth...
Tags: Facebook, Supreme Court, Law, Daniel, Plaintiff, Huber, 5th Circuit, Jon Hyman, Bonnie O Daniel, Industrial Service Solutions, Cindy Huber


WIRTW #537 (the “Roma” edition)

We are contemplating spending Spring Break in Rome. For those who've been, what's you best tip for first-time visitors? Sights not to be missed? Things that are off the beaten path? Where to stay? Best pizza? Best gelato? Drop a note in the comments below and let me know your Rome tips. Here's what I read this week: Discrimination Google sued for allegedly covering up sexual misconduct allegations — via Engadget  Boys and Thrones and Sexual Harassment — via HR Examiner with John Sumser Liti...
Tags: Google, Law, Rome, Ada, Omega, ERC, McConnell, Troutman Sanders, NLRA, Eric Meyer, Kavanaugh, Spring Break, GrubHub, FLSA, Jon Hyman, Suzanne Lucas


The 3nd nominee for the “worst employer of 2019” is … the barbarous boss

2019 is officially the year that my Worst Employer contest went international. How do you motivate your employees to hit their sales goals? If you're the Runfa Hair Salon in Wuxi, China, you abuse the hell out of 'em. , employees who failed to sell 3,000 to 4,000 yuan ($436 to $582) worth of hair products each day suffered harsh physical punishment. How harsh? Employees were forced, in meetings in front of co-workers, to slap themselves in the face 100 times. If their face wasn't sufficiently...
Tags: Law, Jon Hyman, Wuxi China


What does it mean for jobs to be "substantially equal" under the Equal Pay Act?

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles. The Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer's intent. This strict liability, however, does no...
Tags: Law, Boston, Epa, EEOC, Rowe, Jon Hyman, Metropolitan Opera Orchestra, Boston Symphony Chamber Players


Beware pre- and postliminary activities

In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing "preliminary" (pre-shift) and "postliminary" (post-shift) activities that are "integral and indispensable" to an employee’s principal activities. What are "integral and indispensable?" Those activities that are (1) "necessary to the principal work performed" and (2) "done for the benefit of the employer." In Busk, for example, the Court held t...
Tags: Amazon, Law, Houston Texas, FLSA, Mireles, Integrity Staffing Solutions, Jon Hyman, James Carol Lee, Busk the Supreme Court, Hooters of Am LLC


Your 2019 Employment Law Compliance Checklist

Today is the start of the first full week of 2019. Which means it's a perfect time to take a step back and review your efforts at HR and employment-law compliance for the coming year. This list is not mean to be complete or exhaustive, but should provide a high level look at the top 20 issues that you should be reviewing this year, and every year for your business. ☑️ How many employees do you have (15 / 20 / 50)? ☑️ When is the last time your handbook has been reviewed and updated? ☑️ When was ...
Tags: Law, Ada, OSHA, FMLA, Jon Hyman, Glenn Carstens Peters


WIRTW #536 (the “Ex's and Oh's” edition)

It's been a bit since I've posted any of my kids' music, so here's Norah covering Elle King's Ex's and Oh's (one of my winter-break highlights).   And here's Fake ID closing their set at Stella's Music Club (another winter-break highlight). Here's what I read the past few weeks: Discrimination Farewell, EEOC Commissioner Chai Feldblum. — via Eric Meyer's The Employer Handbook Blog UPS settles EEOC religious discrimination lawsuit for $4.9 million — via Atlanta Journal Const...
Tags: Law, Obama, Connecticut, Nlrb, Elle King, EEOC, D C Circuit, Atlanta Journal Constitution, Eric Meyer, Ragan, Dan Schwartz, Jon Hyman, Norah, Suzanne Lucas, Chai Feldblum, Matt Austin Labor Law


Do as they say, not as they do: employees accuse Planned Parenthood of pregnancy discrimination

According to a scathing report by The New York Times, employees nationwide are accusing Planned Parenthood of engaging in rampant pregnancy discrimination. Some examples: The organization allegedly prohibited a pregnant medical assistant suffering, from high blood pressure, from taking breaks recommended by her nurse. Managers are accused of refusing to hire pregnant job candidates, and of pushing new moms out of their jobs after they gave birth. What lessons can employers learn from these stori...
Tags: Law, New York Times, Pda, Ada, EEOC, Jon Hyman, Heather Mount


The 2nd nominee for the “worst employer of 2019” is … the little rascal racist

Welcome to 2019. New year, same old employers earning themselves nominations for my annual race to the bottom. Darryl Robinson, the only African-American employee in his Marriott Vacations Worldwide office, claims he was subjected to repeated racial harassment during his 11 months of employment. NBC News offers the allegations. Robinson alleges that a director of sales repeatedly asked him to dance to music by Michael Jackson during sales meetings. While complimenting his staff, the dire...
Tags: Law, Nbc News, Michael Jackson, Robinson, Daryl, Marriott Vacations Worldwide, Jon Hyman, Darryl Robinson


'Twas the Employment Law Night before Christmas

'Twas the night before Christmas, when all through the office Not a creature was stirring, well, just one of the bosses; The bonuses were paid by the company with care, In hopes that no ungrateful employees would swear. The workers were home all snug on their thrones; While visions of deadlines danced on their iPhones; And I at my desk, alone to deal with the crap, For the one who's in charge gets no holiday nap. When out in the lot there arose such a clatter, I sprang from my desk to see what ...
Tags: Law, Said, FMLA, FLSA, Jon Hyman


Announcing THE WORST EMPLOYER OF 2018

The day has finally arrived. It’s time to announce the Worst Employer of 2018. To remind you, we had four finalists in contention for this … (dis)honor: The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him. The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee that her husband should work in a cotton field wi...
Tags: Law, Ohio, Nazi, Northeast Ohio, White Power, Jon Hyman


CBS denies Les Moonves every penny of his claimed $120 million severance

Today is your last day to vote for the Worst Employer of 2018. The polls close at 11:00 pm tonight. I'll announce this year's big winner tomorrow. Cast your vote here. Before we crown this year's worst employer, I thought I'd mention an employer who did something right. CBS. Yesterday, it announced that fired and disgraced CEO Les Moonves will not receive a single penny of $120 million severance pay his employment agreement calls for. In a statement, CBS explains it's perfectly reasonable ra...
Tags: Law, Cbs, Company, Les Moonves, Moonves, Jon Hyman, New York Times Moonves


Non-solicitation agreements are not a license to steal an employee's already existing customers

Hall v. Edgewood Partners Ins. Center (6th Cir. 12/14/18) [pdf] asks a question that we see arise often in litigation with former employees over restrictive covenants—can an employer limit an employee's access to customers, clients, or other contacts that the employee had prior to the employment. Or, to put it another way, who owns an employee's pre-existing book of business, the employee or the employer? The answer: An employer cannot prevent its employee from soliciting clients that the emplo...
Tags: Law, Hall, Jon Hyman, Emily Morter, Edgewood Partners Ins Center


WIRTW #535 (the “live from Cleveland” edition)

According to a recent survey, social media is the No. 1 challenge for small business owners . Allow me to offer a solution.  La st month I had the pleasure of presenting, Think Before You Click! Managing Workplace Social Media. It's an hour-long run-through of myriad reputational and legal issues that employers face when the employees engage on social media. (I wish YouTube picked a more flattering cover frame.) Enjoy. Here's what I read this week: Discrimination Can an Employee Sue for Reduc...
Tags: Law, Michigan, Kevin Hart, Cleveland, Nlrb, Eric Meyer, Clark Griswold, Krebs, Jon Hyman, John Sumser, LaborPains, Janette Levey Frisch, Labor Relations NLRB, Kate Bischoff, Robin Shea s Employment Labor Insider MeToo, Labor Dish Does Your Company


Why the Cleveland Clinic's $15 minimum wage matters to you

Earlier this week, the Cleveland Clinic committed, by January 2020, to raise the minimum wage for its employees to $15 an hour. According to its CEO, Dr. Tom Mihaljevic, its all about making sure employees feel respected and valued … and attracting and retaining the best employees. As the largest employer in Northeast Ohio and the second largest employer in the state of Ohio, Cleveland Clinic has a responsibility to lead the way and help shape the future of health care and the health care wor...
Tags: Law, Northeast Ohio, Cleveland Clinic, Jon Hyman, Verne Ho, Tom Mihaljevic, Ohio Cleveland Clinic, Amazon Walmart Target Disney Parks McDonald


Alex, I'll take leave of absence policies for $5.25 million.

A: An employer must have one of these to avoid running afoul of discrimination laws when an employee is out on a medical leave of absence. Q: What is an open-ended leave of absence policy? Two employers recently learned this lesson the hard way, care of the Equal Employment Opportunity Commission. Family HealthCare Network will pay $1.75 million to resolve disability and pregnancy discrimination claims stemming from its use of "rigid leave policies and practices to deny reasonable accommodatio...
Tags: Law, Alex, EEOC, Jon Hyman, Cato Corporation, Melissa Barrios, Fresno Local Office


The 1st nominee for the “worst employer of 2019” is … the philandering pharmacist

While I continue to tally votes to name the Worst Employer of 2018, I have an employer too awful not to kick off the nominees for 2019. Meet Joyce Fogleman, the president, pharmacist, and sole owner of J&S Professional Pharmacy, who is, along with her pharmacy, the defendant in Blades v. J&S Professional Pharmacy. With tongue planted firmly in cheek, Judge J. Philip Gilbert of The United States District Court for the Southern District of Illinois describes the employer as "your typical pharmac...
Tags: Law, Fogleman, Jon Hyman, Joyce Fogleman, J Philip Gilbert, Wendy Blades


A quick review on the rules for docking pay for exempt employees

"Can I dock part of an employee's paycheck?" It's one of the questions I get most often from clients. So, let's take a quick run through the rules of docking employee's pay for exempt employees. Generally speaking, it violates the Fair Labor Standards Act to dock (that is, take a deduction from) the salary of an exempt employee. Under the FLSA, an exempt employee earns their entire salary for a work week as soon as that employee works even one minute during that week. The logic is simple. Once y...
Tags: Law, FMLA, FLSA, Jon Hyman


WIRTW #534 (the “rock the vote” edition)

Have you cast your ballot for the Worst Employer of 2018? Time is ticking down for this year's final vote. To remind you of the four truly awful employers vying for this year's honor, the finalists are: The Murdering Manager — company owner hires two men to rough-up a handyman who was not doing his job, and they accidentally kill him. The Sexist, Racist, Xenophobic, Oh My! — plant manager calls foreign-born employees "terrorists" and women "bitches," and tells the only black employee t...
Tags: Law, Chicago, Nazi, Robin Shea, Eric Meyer, Jeff Nowak, OSHA, FMLA, White Power, Jon Hyman, Suzanne Lucas, Mike Haberman, Kate Bischoff, Marc Alifanz, FMLA Insights Labor NLRB, Dennis Westlind


Does Title VII protect an employee's self-help discovery?

Suppose one of your employees believes that she was discriminated against because of her protected class. She files a charge of discrimination with the EEOC, and, in support of the charge, provides the agency information from your confidential personnel files that she had copied. In response, you fire the employee for violating your confidentiality policy? She then files a new charge, alleging that her termination was in retaliation for her protected activity of gathering evidence in support of ...
Tags: Law, Circuit, Barnes, EEOC, Monsanto Co, Jon Hyman, Netter, Niswander, Cincinnati Ins Co, 4th Circuit Court of Appeals in Netter, Kempcke, Mikali


Is your business rethinking its holiday party this year?

During the #MeToo portion yesterday's Best-Ever Year-End Employment Law Review that Five Employment Law Bloggers Have Ever Presented, Robin Shea suggested that the #MeToo Movement has altered employers' holiday-party plans this year. Indeed, according to the 2018 Holiday Party Survey (conducted by the appropriately named outplace firm of Challenger, Gray & Christmas), 35% of employers do not plan to throw a holiday party this year, the lowest number since 2009. Given the current strength of our ...
Tags: Law, Robin Shea, Challenger Gray Christmas, Jon Hyman, Michael Discenza, MeToo Movement


What can "Elf" teach us about the ADA?

Friday night, the Hyman clan carried out our annual holiday tradition of watching "Elf." Since much of the story took place in and around various workplaces, this year I decided to watch with an eye towards shareable employment law lessons. Early in the story, Buddy learns the harsh reality that he is not actually an elf, but a human. He learns this lesson after falling 985 Etch A Sketches short of his production expectations, and being transferred to Jack-in-the-Box testing (the job reserved fo...
Tags: Law, Santa, Jack, Ada, Buddy, Hyman, Jon Hyman