tag:blogger.com,1999:blog-888511848243319902018-05-10T20:23:41.859-04:00Ohio Employers Law BlogOhio Employers Law BlogJon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.comBlogger2906125 https://users.feedblitz.com/a1899a1b67fba41990453c64fe4e531d/01238697.png http://www.ohioemployerlawblog.com/2018/05/nbc-news-takes-unprecedented-step-to.htmltag:blogger.com,1999:blog-88851184824331990.post-83243461262586653832018-05-10T07:21:00.000-04:002018-05-10T07:21:16.138-04:00NBC News takes the unprecedented step to release its internal Matt Lauer harassment report Image by Max Goldberg via Wiki Commons Yesterday morning, NBC News released the complete report into its months long investigation of Matt Lauer.

I was astounded by NBC’s transparency. It is extraordinarily rare for a private company to release an internal investigative report of one of its employees. In fact, it runs counter to conventional wisdom that harassment investigations should be kept as confidential as possible under the circumstances. Perhaps the combination of NBC’s status as a news agency and the high profile nature of the allegations spurred its decision.

According to the report:
  • “The investigation team found credible the four complainants’ allegations that Lauer engaged in inappropriate sexual behavior in the workplace.”
  • “The team also found credible the statements of NBC News and Today Show leadership, News HR and others in positions of authority in the News Division, as well as numerous other News and Today Show employees, that they did not know about his behavior.”
  • “The investigation team also found that Lauer frequently engaged in sexual banter or joking in open working environments with other employees present or in a position to overhear his comments. While the nature and frequency of that conduct did not rise to the level of creating a hostile work environment, and no witnesses described it as such, it may have contributed to an atmosphere where some employees who may have had concerns assumed nothing would be done to address them, particularly given Lauer’s perceived importance to the News Division.”
  • “The investigation team does not believe that there is a current widespread or systemic pattern of behavior that violates Company policy or a current culture of harassment in the News Division.”

Despite the lack of a “systemic pattern of behavior” or a “current culture of harassment,” the report made the following three recommendations, each of which falls under the category “Best Practices” for any employer:
  1. Improve Training  — “Although a vast majority of the News Division completed the mandatory online “Preventing Workplace Harassment” training when it was last offered, the investigation team recommended interactive in-person training for the entire News Division shortly after the investigation began in order to jump start a shared knowledge of behavioral expectations in the workplace and a deeper understanding of complaint reporting channels and investigation procedures.”

  2. Improve Communication from Management — “It is also important that News Division leadership consistently set the tone from the top by emphasizing as often as possible the Company’s commitment to a safe and respectful workplace, a willingness to take appropriate action no matter who is involved, and no tolerance for retaliation.”

  3. Improve Use of Reporting Channels — “Within the News Division, steps should be taken to improve the visibility of News HR and their familiarity with the employee base. Employees need to develop confidence that News HR offers a safe space to report concerns and will act as employee advocates when necessary and appropriate. We also recommend considering whether additional independent reporting channels should be established for the News Division specifically until the level of comfort with existing internal channels improves. Of course, the investigation team will remain available to hear concerns from News Division employees at any time.”

You can read the full report here [pdf]. ]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://1.bp.blogspot.com/-soPv11mQQOU/WvMT9jAen2I/AAAAAAAAkOU/LISKT7xeO4UY0vfZFLM6jVIzuVydgBi9wCLcBGAs/s72-c/Lauer.jpg http://www.ohioemployerlawblog.com/2018/05/sympathetic-does-not-always-equal.htmltag:blogger.com,1999:blog-88851184824331990.post-40932144783280074602018-05-09T07:34:00.000-04:002018-05-09T08:32:48.354-04:00Sympathetic does not always equal protected under the ADA Photo by Pexels on Pixabay
Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.
When an opinion starts with this quote, you know that the plaintiff is not going to have a good day.

What happened in Sepúlveda-Vargas v. Caribbean Restaurants, LLC (1st Cir. 4/30/18) to garner this tough life lesson from the court?

Victor Sepúlveda-Vargas worked as an assistant manager in a Puerto Rico Burger King owned and operated by Caribbean Restaurants. While making the nightly bank deposit, Sepúlveda was robbed at gunpoint, hit over the head, and had his car stolen. As one might expect, Sepúlveda did not come out of the incident mentally unscathed. In fact, he suffered post-traumatic stress disorder and major depression.

Caribbean Restaurants requires its managers to work rotating shifts, and considered the requirement an essential function of the job—to spread among all managers the burden of working undesirable shifts.

Those rotating shifts would have required Sepúlveda, upon his return to work, from time to time to work the night shift on which he was robbed and assaulted. Instead, he requested a set schedule as a reasonable accommodation.

Initially, the employer granted Sepúlveda’s request. A couple of weeks later, however, it reconsidered and retroactively denied the accommodation, informing Sepúlveda of the essential nature of the rotating schedule.

Sepúlveda sued, claiming that that Caribbean Restaurants failed to reasonably accommodate his disability in violation of the ADA.

As you’ve likely gathered from the lede, Sepúlveda lost, based on the rotation as a essential function. The court was not only un-persuaded by Sepúlveda’s story, but also by the fact that the employer had initially granted the accommodation.
While … Caribbean initially granted Sepúlveda the accommodation on a temporary basis, that fact did not mean that it conceded that rotating shifts was a non-essential function.… To find otherwise would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers.

Essential functions are called essential for a reason. And while I can see an argument that waiving one by granting an accommodation lessens its essentialness, this court saw it differently. An employer may (but is not required to) go above and beyond that which the ADA requires. And to punish an employer for doing so will only serve to deter employers from exceeding the ADA’s requirements in the future.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://1.bp.blogspot.com/-jSLfUcVG28Y/WvGTBPGQukI/AAAAAAAAkM8/fxmBLCxVYKM-d-CR05G03EE7yf05DnBTwCLcBGAs/s72-c/01234965.JPG http://www.ohioemployerlawblog.com/2018/05/should-employers-still-test-for.htmltag:blogger.com,1999:blog-88851184824331990.post-37038834049592075352018-05-08T07:49:00.002-04:002018-05-08T08:19:45.475-04:00Should employers still test for marijuana? Photo by Michael Fischer from Pexels Ohio’s medical marijuana program is set to be fully operational by September 2018. Ohio will join 28 other states, and the District of Columbia, in which doctors can legally prescribe marijuana to treat certain medical conditions.

Ohio’s medical marijuana law does not require that employers accommodate employees’ lawful use of medical marijuana. It also permits employers still to maintain drug testing policies, drug-free workplace policies, and zero-tolerance drug policies.

Yet, with the lawful use of marijuana spreading, employers are asking if it still makes sense to test for it as part of pre-employment drug screenings.

According to wkyc.com, “Employers … are quietly taking what once would have been a radical step: They’re dropping marijuana from the drug tests they require of prospective employees. Marijuana testing … excludes too many potential workers, experts say, at a time when filling jobs is more challenging.”

Other than the fact the fact that employers have historically included marijuana in their drug testing panels, why do employers test for this substance?

It’s likely not because of its danger. After all, we don’t pre-employment test for alcohol, yet it is more dangerous than marijuana (see WebMD, CNN, The Washington Post, CBS News, and Business Insurance, for example).

So, employers, let me ask you—are you pre-employment testing for marijuana, and, if so, are you considering dropping it from your drug testing panel? Share you thoughts in the comments below.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://4.bp.blogspot.com/-iIaHdGveaxo/WuxauOwIwUI/AAAAAAAAkE0/D3deCEdmWzw96MIWB7M-pMFEgzLo92sJQCLcBGAs/s72-c/blur-cannabis-close-up-606506.jpg http://www.ohioemployerlawblog.com/2018/05/the-8th-nominee-for-worst-employer-of.htmltag:blogger.com,1999:blog-88851184824331990.post-17777436179868831022018-05-07T07:45:00.002-04:002018-05-07T07:45:38.755-04:00The 8th nominee for the “worst employer of 2018” is … the age discriminator Today’s nominee for the Worst Employer of 2018 is Seasons 52, a national, Orlando-based restaurant chain.

Last week, it agreed to pay $2.85 million to settle a nationwide class age discrimination lawsuit brought by the EEOC. The lawsuit included significant direct evidence of age discrimination.

The EEOC’s lawsuit sought relief for applicants age 40 and older that had been denied front-of-the-house and back-of-the-house positions at 35 Seasons 52 restaurants around the country. 
During the course of the litigation, over 135 applicants provided sworn testimony that Seasons 52 managers asked them their age or made age-related comments during their interviews, including: “Seasons 52 girls are younger and fresh,” “Most of the workers are younger,” “Seasons 52 hires young people,” or “We are really looking for someone younger.” 

If you reject older job applicants as a matter of corporate policy, you might be the worst employer of 2018.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://1.bp.blogspot.com/-ysEa7h2ba4I/WkO493J5T_I/AAAAAAAAhko/iiHwYy6c_Kw12ZGQQHMPQWDFFmP_F4G1ACPcBGAYYCw/s72-c/01158102.PNG http://www.ohioemployerlawblog.com/2018/05/wirtw-504-once-bitten-twice-shy-edition.htmltag:blogger.com,1999:blog-88851184824331990.post-20973643561839814962018-05-04T07:34:00.000-04:002018-05-04T22:26:30.245-04:00WIRTW #504 (the “once bitten, twice shy” edition)Ohio Bike Week.

Why?


I’ll be watching Norah and her bandmates warming up the crowd for 80’s hair band Great White.

If you’re attending, please say hi. I’ll be the one without the motorcycle.

Here’s what I read this week.

Discrimination

Technology

HR & Employee Relations

Wage & Hour

Labor

OSHA & Safety

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://4.bp.blogspot.com/-ekjGnd6O0oE/WutXdfHUAoI/AAAAAAAAkEc/1o_00AdQXusGgLOOV-S30vyqMZAgH4mCACLcBGAs/s72-c/file.jpeg http://www.ohioemployerlawblog.com/2018/05/this-is-how-you-reasonably-accommodate.htmltag:blogger.com,1999:blog-88851184824331990.post-59063912624998928512018-05-03T08:01:00.002-04:002018-05-03T08:02:59.451-04:00THIS is how you reasonably accommodate a disabled employee Photo by David Pisnoy on Unsplash I’ve spent a lot of time over the past 16 months discussing bad employers—those that so mishandled employees that they earned a spot on my list of America’s Worst Employers.

Today, I thought I’d take a look at the brighter side—an employer that handled a tricky employee issue correctly.

Jablonski v. WalMart (9th Cir. 4/26/18) concerns an issue that often confounds employers and presents many opportunities for mistakes that lead to difficult lawsuits—the sick or injured employee who needs repeated reasonable accommodations.

Lidia Jablonski worked as a supervisor in the dairy, frozen, and meat departments of a Las Vegas WalMart. She took 12 weeks of FMLA following a workplace injury suffered from a falling box of frozen chicken.

Here is how WalMart accommodated Jablonski’s injury following her FMLA leave:

  • Near the end of her leave, WalMart reached out to Jablonski to see if she needed an additional leave of absence, which it granted upon her request.
  • When that leave expired, Jablonski’s doctor certified her to return to work under certain temporary restrictions. Accordingly, WalMart offered, and Jablonski accepted, a 90-day temporary cashier position under WalMart’s Temporary Alternate Duty program.
  • Ultimately, Jablonski’s doctor released to permanent light-duty restrictions. Two supervisors met with her and offered the only vacant position at the store at the time that fit her restrictions, as a part-time cashier.
  • Jablonski declined the offer, stating that she could only accept a full-time cashier position. Since there was no such position available, WalMart considered her “voluntarily terminated.”

Jablonski sued, and lost. And appealed, and lost.

As noted by the court of appeals:
WalMart officials corresponded with her about her leave, granted multiple leave requests, and spoke to her about her future position. WalMart offered Jablonski several accommodations: personal leave when she ran out of FMLA leave, a ninety-day TAD position that accommodated her medical restrictions, and eventually a permanent cashier position—which she rejected. Jablonski argues that WalMart should have transferred her to another store. But she did not ask to be transferred at the time, and she has not presented any evidence that there were vacant positions for which she was qualified at other stores.

The lessons?
  1. When you can demonstrate a documented history of accommodating an employee’s disability, you make it that much more difficult for the employee to establish discriminatory animus, even if you later deny an accommodation request or even terminate the employee.

  2. The ADA does not require employers to be mind readers. If an employee does not request a certain accommodation as part of the interactive process, an employer is not obligated to offer it. Thus, even though Jablonski later complained that WalMart did not offer her a full-time cashier position at a different store, she also did not ask for a transfer to an open position.

  3. The ADA also does not require employers to create positions that do not exist as accommodations. It only requires transfers to open and available positions for which an employee is qualified. Thus, WalMart had no obligation to create for Jablonski a full-time cashier position within her store. Because the only open and available position was part-time, WalMart met its obligation.

Next time you are faced with the difficult situation of a disabled employee who needs repeated accommodations, think of WalMart, and this case, and ask, have we done all that we could have done for this employee, or is there more we can do? How you answer this question will tell you if you have best positioned yourself to defend a discrimination or reasonable accommodation lawsuit.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://3.bp.blogspot.com/-oKL-f3cacTQ/Wun8kaSILxI/AAAAAAAAkEI/sIs2ryYyWyoXFJhSP5crDIFU0E18EhqXQCLcBGAs/s72-c/david-pisnoy-545993-unsplash.jpg http://www.ohioemployerlawblog.com/2018/05/51-millions-reason-to-keep-religion-out.htmltag:blogger.com,1999:blog-88851184824331990.post-2874302771089040172018-05-02T07:43:00.000-04:002018-05-02T07:49:13.274-04:005.1 millions reason to keep religion out of your workplace I’m thinking of starting a religion “Onionhead” teaches people to direct their emotions in a truthful and compassionate way. It is central to the teachings of the Harnessing Happiness Foundation, a 501c3 nonprofit organization dedicated to emotional knowledge and intelligence, conflict resolution, and life handling skills.

Onionhead is also central to a religious discrimination lawsuit brought by the EEOC against United Health Programs of America and its parent, Cost Containment Group. The aunt of the defendants’ CEO is the creator of Onionhead.

According to the lawsuit, the defendants required its employees to participate in “group prayers, candle burning, and discussions of spiritual texts,” all as part Onionhead, and fired anyone who refused to participate. The EEOC alleged that Onionhead is a religion, and forcing it upon employees violates Title VII.

Last week, a unanimous Brooklyn federal jury agreed with the EEOC, and awarded 10 employees a total of $5.1 million.

According to EEOC Trial Attorney Charles Coleman, Jr., “This case featured a unique type of religious discrimination, in that the employer was pushing its religion on employees. Nonetheless, Title VII prohibits religious discrimination of this sort and makes what happened at CCG unlawful. Employees cannot be forced to participate in religious activities by their employer.”

He is 100 percent correct. If you’re thinking of holding a prayer meeting, conducting spiritual discussions or rituals, or doing anything else remotely related to religion at your company, don’t. Religion has no place at work. Your intentions may be absolutely pure. Your employees however, have the unfettered right to practice the religion of their choice, or not to practice any religion at all.

Whatever you call your deity—God, Jesus, Jehovah, Jehovah, Allah, Buddah, Krishna … or even Onionhead—leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs. Anything different violates Title VII.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://1.bp.blogspot.com/-VK9Xe7W93DU/Wumeui_gwrI/AAAAAAAAkD4/HCJlTOUMqmAYSzuK6qcSKPM1mAXVzwsXwCLcBGAs/s72-c/file.png http://www.ohioemployerlawblog.com/2018/05/no-one-should-ever-have-to-choose.htmltag:blogger.com,1999:blog-88851184824331990.post-52935367699874666542018-05-01T07:29:00.000-04:002018-05-01T07:29:08.083-04:00No one should ever have to choose between their children and their job Three female associates at Morrison & Foerster have filed an alleged $100 million class-action sex discrimination lawsuit against the firm. They claim that their employer “mommy tracks” lawyer moms working at the firm by denying them opportunities for advancement and higher pay.

According to the lawsuit [pdf] (care of the ABA Journal):
Morrison & Foerster discriminates against Plaintiffs and other female attorneys, especially pregnant attorneys and women with children, with respect to compensation and promotions through the use of common policies and procedures. When a female attorney at MoFo is pregnant, has children, or takes maternity leave, the Firm’s standard operating procedure is to hold her back from advancement with her peers, denying her opportunities for greater pay and limiting her progression. This Firm practice reinforces stereotypes that mothers are worse at and less committed to their jobs, and sets in motion a chain of events that leads to the dead end of the mommy track: when female attorneys become mothers, the Firm demands they prove their commitment by working more hours; when they seek additional work, they are denied assignments because of stereotype-driven perceptions that they lack commitment to their jobs. 

No employee should ever face the Hobson’s choice of their career or their family. As long as these employees were performing up to firm standards, the firm’s rules, policies, or stereotypes should not punish them or otherwise prevent them from advancing, period.

But here’s the key: were they performing according to firm standards, or, if not, why not?

Are these employees being held back because they are choosing to work less because of their new families, or because of stereotypes about moms?

Businesses are allowed to apply performance standards (such as billable hour requirements), as long as they are equally applied across protected classes. Thus, for example, if MoFo’s policies say, “To be considered for partner, you must bill 2,000 per year,” and these plaintiffs are falling short because they are choosing to work less to spend time with their families, then they probably have no claim.

If, however, the firm is applying stereotypes about the level of commitment of new parents to deny these moms the opportunity to meet its expectations, then they have something to litigate.

No employee should ever have to choose between their family and their job. But, if an employee voluntarily makes that choice, and fails to meet their employer’s expectations as a result, it is unreasonable to scream discrimination. We all make choices. As long as the employer’s choice is motivated by legitimate non-discriminatory performance standards, and not discriminatory stereotypes, then its treatment of these employees is likely legal.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://3.bp.blogspot.com/-iijiFwZd23Y/WuhFGikZwJI/AAAAAAAAkDg/ZfhHG5qm3HsmqSruek9wIYvoc5E_QbpdwCEwYBhgL/s72-c/IMG_3622.JPG http://www.ohioemployerlawblog.com/2018/04/hair-discrimination-not-thing.htmltag:blogger.com,1999:blog-88851184824331990.post-63484539492571764122018-04-30T07:37:00.000-04:002018-04-30T07:48:39.495-04:00Hair discrimination; not a thing
Give me a head with hair, long beautiful hair
Shining, gleaming, steaming, flaxen, waxen
Give me down to there hair, shoulder length or longer
Here, baby, there, momma, everywhere, daddy, daddy
Hair, hair, hair, hair, hair, hair, hair, hair
Flow it, show it, long as God can grow it, my hair
– “Hair”
Friday’s tongue in check post about the beauty of baldness got me thinking about hair and employment law.

Or, more to the point, can an employer run afoul of discrimination laws by making an employment decision based on one’s hairstyle?

The answer is likely no.

Not that employees haven’t tried.

For example, Ewing v. United Parcel Service challenged UPS’s Personal Appearance Guidelines. With respect to hair color those guidelines stated: “Hairstyles and hair color should be worn in a businesslike manner.” Shenitta Ewing, African American, claimed discriminatory enforcement of the policy to prohibit her from coming to work with fuchsia-colored hair. The court disagreed, citing at least four examples of Caucasian employees fired or discipline because of their “extreme” hair colors.

Or consider Viscecchia v. Alrose Allegria LLC, which concerned a hotel’s “hair policy,” which required that hair “be clean, trimmed, well brushed, and neat at all times, prohibited “extreme styles,” and further prohibited the hair of its male employees from landing below the shirt collar. After repeated warnings, the hotel fired Richard Viscecchia for refusing to trim his long hair. He claimed sex discrimination, based on a policy that required men, but not women, to maintain short hair. The court disagreed, holding that gender-differentiated hair length standards do not violate Title VII, and “employers can prescribe different grooming standards for male and female employees.”

Or EEOC v. Catastrophe Management Solutions, which concerned an employer’s blanket prohibition against dreadlocks, and an African-American applicant’s rejected claim that such a policy intentionally discriminates on the basis of race.

One potential exception that could make hair discrimination unlawful is where an employee’s hairstyle is related to a sincerely held religious belief. In that case, an employer should consider possible reasonable accommodations to avoid a claim of religious discrimination.

Otherwise, to sum up this potentially hairy issue, as long as you are not intentionally targeting one protected group over another, you are free to regulate hair in the workplace.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://4.bp.blogspot.com/-R8THsew2nzE/WuTQcaaVXaI/AAAAAAAAkCo/gCE1qvkB3LMgcp0nbkjG_HsbkWJQhGE2wCLcBGAs/s72-c/621d0957-0299-4d7c-9a34-65ccbfe52834.jpg http://www.ohioemployerlawblog.com/2018/04/wirtw-503-bald-is-beautiful-edition.htmltag:blogger.com,1999:blog-88851184824331990.post-7627669866505007862018-04-27T07:28:00.000-04:002018-04-27T07:28:03.109-04:00WIRTW #503 (the “bald is beautiful” edition) I need to get something off my chest. An albatross I’ve carried since my teenage years. I’ve been crushed by the weight of success, intelligence, and sheer masculinity.

And now science has finally, and thankfully, provided a rational explanation for my years of pain.

Men with bald heads are often seen as more dominant and successful by everyone around them, according to a study of the University of Pennsylvania. 
The american scientist Albert E. Mannes … conducted a study in 2012 with 59 subjects. He wanted to find out how people react to men with shaved heads by showing them a series of pictures.

The subjects got to see each photo twice, once of a man with a full head of hair and once of the same man with his hair shaved off. The subjects reported that they thought the bald men were more dominant, bigger and stronger.… 
But bald men are not just more powerful, they are also seen as more intelligent. A global study conducted by the psychologist Ronald Henss of the University of Saarland with over 20.000 subjects suggests that bald men are estimated to be older, but also seem wiser and more intelligent.
Makes perfect sense to me.

*Disclaimer no. 1: Mannes happens to be bald. But, science! Who am I to argue?

*Disclaimer no. 2: Only fully bald men need apply. Bald patches or pattern baldness were seen as less attractive and weaker. (George Costanza, I’m looking at you.)

Here’s what else I read this week:

Discrimination

Technology

HR & Employee Relations

Wage & Hour

Labor

OSHA & Safety

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://3.bp.blogspot.com/-dr1S9YD772k/WuL-mTCPtlI/AAAAAAAAj9A/USkv2_2mcZooFn4U0_JN8XvGNDUk1ymIACEwYBhgL/s72-c/file.jpg http://www.ohioemployerlawblog.com/2018/04/the-7th-nominee-for-worst-employer-of.htmltag:blogger.com,1999:blog-88851184824331990.post-46107520441376464122018-04-26T07:31:00.000-04:002018-04-26T07:31:12.076-04:00The 7th nominee for the “worst employer of 2018” is … the pregnancy provoker Kayla Edwards worked as a cashier for Aramark at its location in Gettysburg National Park.

In February 2017, Edwards became pregnant with her third child.

That’s when her troubles at work began, at least according to Edwards’ lawsuit [pdf] (filed earlier this week in federal court in Pennsylvania).

Immediately upon hearing of the pregnancy, Edwards’ supervisor, Suzanne Curtian, is alleged to have called her “dumb.”

The alleged harassment when downhill from there:
  • While Edwards was experiencing pregnancy-related complications, Curtian allegedly expressed: “Well hopefully it’s just a tumor or something and you were wrong about the pregnancy. Nothing cancerous, just something they can remove and you can move on.” 
  • As the complications progressed, Curtian allegedly commented, “Maybe you’re miscarrying. If so, that’s just God’s will and what’s best. And then you won’t have to worry about another kid or having to leave [work].” 
  • Approximately nine weeks before Edwards’ scheduled C-section, Curtian allegedly instructed her to “keep [her] legs crossed,” so that she could continue working as long as possible.

Two weeks later, Curtian accused Edwards of theft and fired her.

If you call an employee’s pregnancy a “tumor” and tell her “keep you legs crossed” to remain at work longer, you might be the worst employer of 2018.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://1.bp.blogspot.com/-ysEa7h2ba4I/WkO493J5T_I/AAAAAAAAhko/iiHwYy6c_Kw12ZGQQHMPQWDFFmP_F4G1ACPcBGAYYCw/s72-c/01158102.PNG http://www.ohioemployerlawblog.com/2018/04/nearly-half-of-american-workers-admit.htmltag:blogger.com,1999:blog-88851184824331990.post-25033962710030687942018-04-25T07:31:00.000-04:002018-04-25T07:31:15.173-04:00Nearly half of American workers admit to engaging in workplace revenge Photo by Avalon_Mists on Pixabay
And every time I scratch my nails
Down someone else’s back I hope you feel it
Alanis Morisette 
Revenge. So natural, and yet so wrong. “Turn the other cheek” is always the preferred practice, and, yet, often life is more “smack you in the cheek” as you turn away.

Even at work.

According to a recent study, 44 percent of workers admit to partaking in some type of workplace revenge.

The top 10 acts of revenge range from the silly to the diabolical to the downright nasty:
  1. Cause a purposeful decline in the quality or quantity of work.
  2. Spreading an unflattering rumor about a co-worker.
  3. Quit a job in an unconventional manner.
  4. Hide a co-worker’s possession(s).
  5. Get a co-worker fired.
  6. Sabotage a co-worker’s work.
  7. Tamper with a co-worker’s computer or work equipment.
  8. Eat a co-worker’s lunch
  9. Disseminate private information from a co-worker’s social media.
  10. Delete work from a co-worker’s computer.

Here’s the most troubling part. Of those who admitted to taking revenge, 83 percent got away with it, and of those that got away with it, 83 percent had no regrets. Also, of those caught, 55 percent suffered no repercussions whatsoever, and only 11 percent were fired.

Moreover, this conduct might not be unlawful. Generalized workplace bullying is generally legal. Mistreatment against co-workers is only rises to the level of unlawful harassment if it’s because of some protected class (e.g., sex. race, religion, age, national origin, disability, etc.), and to the level of unlawful retaliation if the target had engaged in some protected activity.

Yet, just because an act of revenge isn’t illegal doesn’t mean that you shouldn’t handle it just the same. For starters, whether or not an act of revenge is “because of” some protected class is very much in the eye of the beholder, one person’s non-discriminatory act of revenge is another’s unlawful harassment. Do you want to take that risk?

And, regardless of whether an act of revenge is or is not actionable, it nevertheless impacts your employees the same—increased absences, high turnover, low morale, lost productivity, greater health insurance costs, and the expensive legal bills if it turns into a lawsuit.

In other words, there is no excuse for an employer to turn a blind eye towards one employee’s act of revenge against another employee.

So, what can an employer to do prevent employees from exacting revenge on each other?

For starters…

Foster a culture of kindness.

More specifically, you should be implementing these three steps:

1. Review policies. Do you have an anti-bullying policy? Do you have an open-door policy? Does your anti-retaliation policy cover all workplace complaints? If you are missing any of these components, the odds are that your employees will not feel the necessary level of comfort to come forward to complain.

2. Encourage complaints. Do you promptly and thoroughly investigate all complaints of inappropriate misconduct, or just those that could rise to the level of a lawsuit? If you’re not taking all complaints of misconduct seriously with prompt and thorough investigations, you are sending the wrong message to your employees, which could lead to them not complaining at all.

3. Take action. It’s appalling that 55 percent of those caught taking revenge against a co-worker suffered zero consequences. If you conclude that the act of the revenge happened, do something. That something need not be termination, but it should be proportional to the severity of the act and the recidivism of the actor.

Have you ever enacted workplace revenge, been the victim of workplace revenge, or had it occur in your business? And, if so, how did you handle it? Share your experiences in the comments below.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://2.bp.blogspot.com/-qlM0hTgJoF8/Wt-EG_XdfYI/AAAAAAAAj8M/lho1YNys-bYTOLvxVZjrE7GZ4ffV1w2WQCLcBGAs/s72-c/halloween-1784590_640.jpg http://www.ohioemployerlawblog.com/2018/04/maternity-leave-does-not-guarantee.htmltag:blogger.com,1999:blog-88851184824331990.post-47226652385611375522018-04-24T07:34:00.000-04:002018-04-24T08:23:00.877-04:00Maternity leave does not guarantee continued employment
By Grand Parc CC BY 2.0 via Wiki Commons
Michelle Bailey worked in the human resources department of Oakwood Healthcare. During her maternity leave, her immediate supervisor and others assumed her responsibilities, and discovered certain deficiencies in how she performed her job.

Discovery of those deficiencies led the supervisor to review Bailey’s qualifications as set forth in her employment application. That review, in turn, uncovered an application Bailey had submitted for a different position at Oakwood two years earlier. A comparison of Bailey’s two resumés on file lead to the conclusion that Bailey had falsified her later application by exaggerating her prior experience and qualifications.

That discovery, coupled with the performance deficiencies, caused Oakwood to terminate Bailey’s employment upon her return from maternity leave.

In Bailey v. Oakwood Healthcare [pdf], the 6th Circuit affirmed the district court’s dismissal of Bailey’s discrimination and retaliation lawsuit.
Bailey … does not, deny that the application contained inaccuracies. “Falsifications,” however, is too strong, she says. Bailey prefers to characterize the inaccuracies as, at worst, mere “embellishments” of the time periods and job titles of positions she held at Beaumont Hospital.…  
The district court was not persuaded. After summarizing the relevant discrepancies identified by Oakwood and finding Bailey’s characterization “more than a little disingenuous,” the court concluded that resumé misrepresentation by a senior human resources professional could reasonably be deemed sufficiently egregious to defy correction by mere counseling or other lesser discipline.… We find no error.

No employee is bulletproof, and employers should not shy away from firing a worthy employee (such as an HR employee who committed resumé fraud) merely because the employee engaged in some protected conduct (such as a maternity leave). Yet, many terminations are risky, and even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every “i” is dotted and every “t” is crossed (with the help of counsel, if needed), and let the chips fall where they may.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://3.bp.blogspot.com/-UnsDegtgSBc/Wt4e_IDOuyI/AAAAAAAAj78/Kl2WhRnBWfoExAWHXRXuQWH-h-RivqtsACEwYBhgL/s72-c/01225858.JPG http://www.ohioemployerlawblog.com/2018/04/do-not-sacrifice-employee-safety-for.htmltag:blogger.com,1999:blog-88851184824331990.post-26248472067425126592018-04-23T07:40:00.003-04:002018-04-23T07:40:41.051-04:00DO NOT sacrifice employee safety for productivity Photo by Milo McDowell on Unsplash The Verge reports that workers at an Amazon distribution facility are “forced to pee in bottles or forego their bathroom breaks entirely because fulfillment demands are too high.”

While this is horrible, and demeaning, it’s still just employees peeing in bottles. It’s not THAT big of deal? Right?

Wrong.

For starters, as I’ve previously discussed, OSHA mandates that “employers allow employees prompt access to bathroom facilities,” and that “restrictions on access must be reasonable, and may not cause extended delays.”

Thus, denying employees bathroom access (either directly or functionally) in the name of “getting the job done” (or otherwise) almost certainly violates OSHA.

More critically, however, suppose instead of bathroom breaks we’re talking about the removal of guarding on a piece of industrial equipment. Yes, you can make more widgets more quickly without guarding. But, your employees like leaving work with the same number of fingers and toes with which they came to work. And you should prefer that, too.

Safety is safety, whether it’s bathrooms or guarding or anything else.

If an employer is cutting safety corners on the small stuff, it’s probably a safe bet that it’s cutting corners on the bigger stuff.

At the end of the day, no one wins when employers sacrifice employee safety in the name of increased productivity.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://1.bp.blogspot.com/-U7AjcWiefOs/WtfnOJI3_QI/AAAAAAAAj6g/sVuOP3o4a3YW5M2WMVSQBfPBw49hxKzJQCLcBGAs/s72-c/milo-mcdowell-2198-unsplash.jpg http://www.ohioemployerlawblog.com/2018/04/wirtw-502-airtalk-edition.htmltag:blogger.com,1999:blog-88851184824331990.post-17809099936290139782018-04-20T05:42:00.000-04:002018-04-20T05:50:33.959-04:00WIRTW #502 (the “AirTalk” edition)
Yesterday, I guested on Los Angles public radio station KPCC’s AirTalk and spoke with Libby Denkmann about what this means for the future of parental leave laws in America, and why we should be ashamed that countries like Iran and Afghanistan do more for their working moms than we do.

Thanks to Libby for the great conversation, and to my friend, Kate Bischoff, for the connection.

You can listen here. The segment starts at 29:50, and my interview starts at 41:30.



Here’s what I read this week:

Discrimination

Technology

HR & Employee Relations

Wage & Hour

Labor

OSHA & Safety

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com http://www.ohioemployerlawblog.com/2018/04/if-you-werent-angry-about-fired-saints.htmltag:blogger.com,1999:blog-88851184824331990.post-53152971862911818502018-04-19T07:24:00.000-04:002018-04-19T07:30:27.293-04:00If you weren’t angry about the fired Saints cheerleader before, you will be now.Bailey Davis? She’s the New Orleans Saints cheerleader fired for violating the team’s social media policy.

Her offense? This photo, which she posted to her personal Instagram.

She’s already filed a civil rights complaint, and now she’s speaking out about her alleged discriminatory treatment, and discriminatory policies in professional cheerleading in general.

Yesterday, she spoke to The Daily.

 


This 25 minutes is well worth your time.

If you think your male employees are “predators,” the answer isn’t to punish your female employees, or apply to them a different set of rules intended to protected them. Instead, you simply should deal with the predators.

I understand that we are talking about professional sports, and the predators are the money makers and meal ticket, but that in no way justifies condoning their behavior, or discriminating against your female employees.

If you weren’t angry about this issue before, you will be now.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com http://www.ohioemployerlawblog.com/2018/04/apparently-god-is-in-restaurant.htmltag:blogger.com,1999:blog-88851184824331990.post-51293931352746532222018-04-18T07:32:00.000-04:002018-04-18T07:32:30.932-04:00Apparently God is in the restaurant business, at least according to the 6th Circuit Photo by chuttersnap on Unsplash It’s been nearly three years since I first reported on the Department of Labor’s wage and hour lawsuit against Akron, Ohio’s, Cathedral Buffet, owned and operated by the Earnest Angley Ministries.

The DOL’s allegations are pretty offensive. Not only did it claim that all of the restaurant’s employees worked for free, it also claimed that the ministry coerced church members into volunteering, telling them they “had an obligation to provide their labor to the Buffet, in service to God, and that a failure to offer their labor to the Buffet … would be the same as failing God;” that Angley “was God’s prophet, and saying ‘no’ to Angley would be tantamount to saying ‘no’ directly to God,” and “‘blaspheming against the Holy Ghost.’”

Last year, in a scathing opinion, U.S. District Court Judge Benita Pearson ordered Angley and his church to pay employees more than $388,000 in unpaid wages and liquidated damages.

Yesterday, however, the 6th Circuit reversed [pdf].

The 6th Circuit opinion rests on two key points.
  1. If individuals providing services to a religious organization “did not work in expectation of compensation,” they are volunteers, not employees. Therefore, their free work does not violate the FLSA.

  2. The FLSA does not prohibit the type of “spiritual coercion” alleged in this case. It “does not go so far as to regulate when, where, and how a person may volunteer her time to her church. After all, the giving of one’s time and money through religious obligation is a common tenet of many faiths.”
All I can say is wow. As offensive as I found these wage and hour practices when I first learned of them is as offensive as I find this 6th Circuit opinion. 

First, while I do not disagree that the FLSA permits not-for-profit organizations to use volunteer labor without violating the law, there was no dispute in this case that the Cathedral Buffet was not a not-for-profit organization. It was an Ohio for-profit corporation, operating under the umbrella of Angley’s church. I fail to see how individuals working for a for-profit corporation are anything other than FLSA-covered employees.

Secondly, the coercive techniques Angley and his church used to convince individuals to work for free are appalling. Telling people that their boss is the arm of God, and refusing his request to work for free would be the same as telling “no” to God and “blaspheming against the Holy Ghost.” Expressing that your soul is “irredeemable” and you are condemned to hell if you don’t work for free? If that’s not coercion, I don’t know what is.

Regardless, the Cathedral Buffet, which closed last April following the District Court opinion, is now off the hook. I can’t wait for it reopen and restart taking advantage of Akron’s less fortunate.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://3.bp.blogspot.com/-XeJo7146CNA/WtciOxW8vkI/AAAAAAAAj6I/4Y7zX2NvMr0slnFL3lI4pq5-MFirQkVIwCLcBGAs/s72-c/chuttersnap-139486-unsplash.jpg http://www.ohioemployerlawblog.com/2018/04/i-abhor-term-wage-theft-and-you-should.htmltag:blogger.com,1999:blog-88851184824331990.post-4581431920093685312018-04-17T07:30:00.000-04:002018-04-17T07:52:23.226-04:00I abhor the term “wage theft,” and you should too Photo by Thirteen .J on Unsplash This past Sunday’s Cleveland Plain Dealer ran a story entitled, Do wage theft laws in Ohio harm or help workers? Notably, it quoted yours truly as the voice of management on this issue (thanks to Olivera Perkins for the interview):
Some business advocates argue with the very term “wage theft.” Jon Hyman, a local lawyer who represents employers, says not every employer cited for wage theft has willingly denied rightful wages.”To me, wage theft is a loaded term,” he said. “It presumes an intent to steal.” 
For example, Hyman said a former client paid a human resource consultant to do an audit of employee classifications and followed the consultant’s advice. 
A few years later, he said, the U.S. Labor Department, which also investigates wage theft, determined that many employees had been misclassified and had not received overtime pay to which they were entitled. The company ended up paying an undisclosed negotiated amount of unpaid overtime to the misclassified employees.

Let’s break this down further.

According to wagetheftisacrime.com (an actual website), “Wage theft occurs when employers do not pay workers according to the law. Examples of wage theft include paying less than minimum wage, not paying workers overtime, not allowing workers to take meal and rest breaks, requiring off the clock work, or taking workers’ tips.”

What’s missing from this definition? Intent. 

Theft is a crime of intent. It requires a motive. If I walk out of the supermarket with a sleeve of Diet Pepsi underneath my cart, and forget to pay for it, I didn’t steal it. I just forgot it was there. Now, if I load it into my car, and don’t go back inside to pay upon the realization, that’s a different story. But that story also has intent underpinning it.

The term “wage theft“ suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wages to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not.

I’ll be the first to admit that we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is not an employer sin of commission, but a sin of omission. Employers aren’t intentionally stealing from their employees; they just don’t know any better.

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 80 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations for which one needs a Ph.D. in FLSA (if such a thing existed) just to understand it all. Since most employers are experts in running their businesses, and not the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. 

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft laws that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation. 

Employees absolutely deserve to be paid every cent they are owed for every minute they work. Anyone who tells you differently is both wrong, and likely a crook. But, to use a term that presumes that every employer who misses a dollar here or there intends to steal from its employees misses the mark.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://2.bp.blogspot.com/-e-VTDVcLdF4/WtSWF789rKI/AAAAAAAAj40/y-4-yv1kyjkAgqaZguloq0QH05qrkUKigCLcBGAs/s72-c/thirteen-j-607630-unsplash.jpg http://www.ohioemployerlawblog.com/2018/04/must-you-pay-employees-for-fmla-related.htmltag:blogger.com,1999:blog-88851184824331990.post-20445026500672599402018-04-16T07:25:00.000-04:002018-04-16T07:25:01.149-04:00Must you pay employees for FMLA-related breaks during the work day? Photo by Liam Stahnke on Unsplash
Last week, the Department of Labor Wage and Hour Division resumed its practice of publishing Opinion Letters. One of the first it published answers an interesting question about the intersection of the FLSA and the FMLA.

Must an employer pay an employee for FMLA-approved breaks taken during the work day?

I’ve taken some journalistic license and paraphrased the questions. The answers, however, are verbatim from the DOL Opinion Letter FLSA2018-19 [pdf].

Q: We have an employee who is on an approved intermittent FMLA leave for back issues. When he experiences a flare-up during the day, his FMLA papers permit him to take an unscheduled break. These breaks typically never last more than 15 minutes, and the employee is able to return to work. Yet, they are occurring eight times per day, resulting in only six hours of work during an eight-hour work day. I know that under the FLSA, breaks of 20 minutes or less must be paid. Yet, FMLA leave is unpaid? What do I do? Which law trumps, FLSA or FMLA? Must I pay this employee for his unscheduled medical breaks during the work day?

A: “The specific FMLA-protected breaks described in your letter, however, differ significantly from ordinary rest breaks commonly provided to employees. As you note in your letter, the 15-minute breaks at issue here ‘are required eight times per day and solely due to the needs of the employee’s serious health condition as required under the FMLA.’ Because the FMLA-protected breaks described in your letter are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are noncompensable.”

Q: Got it. We don’t have to pay this employee for his FMLA-related breaks. Since he’s already taking two hours of breaks during the work day, I assume we do not have to permit him to take the two paid 15-minute breaks we provide all of our other employees. Right?

A: Wrong. “Employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. For example, if an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.”

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://3.bp.blogspot.com/-zK_PDI__CGU/WtDd-gwtt9I/AAAAAAAAj4A/2TTOVzWKsAMElz9oOsA7OaBDsaFkv4QzgCLcBGAs/s72-c/liam-stahnke-261528-unsplash.jpg http://www.ohioemployerlawblog.com/2018/04/wirtw-501-fireflies-edition.htmltag:blogger.com,1999:blog-88851184824331990.post-21712635306572554982018-04-13T07:30:00.000-04:002018-04-13T07:30:49.088-04:00WIRTW #501 (the “fireflies” edition)recent study, going to concerts adds years to your life.

If this is true (and who am I to argue with science), then last Thursday should propel me into triple digits.

We went to see our fav, Rhett Miller, who invited Norah to share the stage and duet with him.



I learned 4 things watching Norah:
  1. She’s got nerves of steel (which I kind of already knew).
  2. Her performance belies her 11 years of age (which is also kind of already knew).
  3. She can hold her own with a 30-year veteran of the industry.
  4. Thanks to Fake ID, I’m probably on an FBI watchlist.

Thank you Rhett, from Norah (and us, too). You are one of a kind.

Here’s what I read this week:

#MeToo

Discrimination

Technology

HR & Employee Relations

Wage & Hour

Labor

OSHA & Safety

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com http://www.ohioemployerlawblog.com/2018/04/anti-harassment-anthems.htmltag:blogger.com,1999:blog-88851184824331990.post-7625209373109604402018-04-12T07:36:00.000-04:002018-04-12T07:36:46.374-04:00Anti-harassment anthemsI came across the very cool video for a new Speedy Ortiz song, “Villain.”


The song tackles issue of harassment, assault, and consent.

Rock music has always tackled the important social issues of the times, and #MeToo should be no exception.

Which got me thinking, what are some other songs that take on similar themes and issues? I came up with five.

War on Women, “Say It”




Sublime, “Date Rape”




Camp Cope, “The Face of God”




Bikini Kill, “Liar”




Liz Phair, “F*** and Run”




So what’s on your #MeToo playlist. Share in the comments below, or hit me up on Twitter with the hashtag #MeTooAnthems.
]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com http://www.ohioemployerlawblog.com/2018/04/the-other-side-of-diversity.htmltag:blogger.com,1999:blog-88851184824331990.post-25038001464129038872018-04-11T07:25:00.000-04:002018-04-11T07:25:02.549-04:00The other side of diversity Photo by Igor Ovsyannykov on Unsplash Workplace diversity has two sides.

One side says that employers cannot discriminate against minorities. The other says that employers cannot discriminate against non-minorities in favor of minorities.

Some people call this reverse discrimination. I just call it discrimination.

For example, Title VII does not define “African American” or “men” as protected classes; it merely says “race” and “sex.” Thus, if you discriminate against a white person in favor of an African American, or against a man in favor of a woman, you’ve violated Title VII no differently than the converse.

Those who’ve be following me for any length of time know my well documented history of supporting LGBT rights. And, courts have begun to agree, (nearly) universally recognizing that Title VII’s definition of “sex” inherently includes LGBT individuals.

If, however, you are going to include “LGBT” in Title VII’s definition of “sex,” then, just as employers cannot discriminate against LGBT employees in favor of non-LGBT employees, employers also cannot reverse the equation.

In light of all of this, consider Philadelphia’s Mazzoni Center, an LGBT-focused healthcare and wellness non-profit.

It recently took some heat in Philly’s LGBT community for hiring a straight woman, Lydia Gonzales Sciarrino, as its new CEO. Some have criticized her lack of LGBT-specific health care experience (which, if true, would be a valid criticism), while others are more pointed, claiming that her hiring is a shameful “act of violence and deliberate silencing of the very communities Mazzoni is funded to serve.”

The Mazzoni Center defends its decision not only on Ms. Sciarrino’s qualifications, but also its non-discrimination policy:
When it comes to matters of employment, Mazzoni Center does not discriminate on the basis of race, creed, religion, color, national origin, ancestry, age, sex, gender identification or gender expression, sexual orientation, disability, marital status or any other protected status covered by federal, state or local law. Thus, all employment-related decisions are made solely on the basis of a candidate’s skills, ability, experience, education, training, and other legitimate factors related to the requirements of the job.

The Mazzoni Center’s Board considered Ms. Sciarrino the most qualified person who applied. If Title VII covers LGBT-status as sex (which I, and most courts, argue it does), then neither the Mazzoni Center, nor any other employer, can favor an LGBT applicant over a more qualified straight applicant. That would be illegal sex discrimination.

Diversity is a laudable goal. Let’s strive to make sure we are not taking positions that undermine it.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://2.bp.blogspot.com/-o8bzSAX2s1I/Ws3ZGa68xxI/AAAAAAAAj3k/JeHooZvW_7gd6Ub5kCjexTF_fWCKL_cBACLcBGAs/s72-c/igor-ovsyannykov-223089-unsplash.jpg http://www.ohioemployerlawblog.com/2018/04/mentoo.htmltag:blogger.com,1999:blog-88851184824331990.post-48990859607547835272018-04-10T07:31:00.002-04:002018-04-10T08:28:06.763-04:00#Me(n)Too According to the Washington Post, nearly one in five — about 17 percent — of harassment complaints filed with the EEOC come from men.

And many involve same-sex harassment.

Some examples:

  • Example 1: “A group of salesmen were subjected to severe and repeated sexual harassment by male managers. The unlawful conduct included the touching and grabbing of genitals, pelvic thrusting on the buttocks of male employees, exposing of a manager’s penis in the workplace, crude sexual language, crude sexual jokes, and referring to male employees in sexually obscene and derogatory terms.” Although the employer had an anti-harassment policy in place, the lawsuit alleged that “complaints by the salesmen went unheeded by management for nearly a year,” and “management generally dismissed the offensive conduct as ‘horseplay’ or ‘locker room antics.’”
  • Example 2: “A male floor supervisor made sexually charged insults and innuendos on a near-daily basis and also engaged in unwelcome grabbing, groping and humping the victims, attempting penetration of male employees’ buttocks with a broomstick, and kissing. Although members of management received numerous complaints from the employees about the harassment,” the employer “failed to take action to stop the harassment.”
  • Example 3: “A former lot manager … subject[ed] a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals.” The manager further retaliated against anyone who objected.
  • Example 4: “The head chef … frequently pinched or squeezed his subordinates’ private parts, flicked their genitals with his bare hands, and groped them from behind, [and] even used kitchen utensils from the restaurant to touch his victims’ genitals through their clothing.” Further, "several managers … knew what was happening well before formal charges were filed but did nothing to stop it."

You should see a pattern developing. These cases all share two defining characteristics. Men exerting power over other men through sexually degrading misconduct, and the employer either not taking complaints seriously or not doing anything to stop the misconduct.

It's been 20 years since the Supreme Court declared same-sex harassment unlawful under Title VII, yet the problem persists. According to the Washington Post article, the issue typically is not based in sexual desire but in power. It's about domination and humiliation.

Just because the #MeToo movement is being driven by women does not mean that it excludes men.

Bottom line—no means no, no matter the gender of the victim or the perpetrator. And the sooner employers understand this point, the sooner they can implement steps to incorporate same-sex harassment into their anti-harassment policies and training, and move towards eliminating same-sex harassment from the workplace.

]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://2.bp.blogspot.com/-QZbiWHatVeM/WsupyXvjqFI/AAAAAAAAj3A/S9IJ4nh88a4UyLze4mAncCZmxF9WSN8-gCLcBGAs/s72-c/01213561.JPG http://www.ohioemployerlawblog.com/2018/04/cyclist-fired-for-flipping-off.htmltag:blogger.com,1999:blog-88851184824331990.post-41351536663854870802018-04-09T07:43:00.001-04:002018-04-09T07:43:25.907-04:00Cyclist fired for flipping off Presidential motorcade sues former employerYou may recall Juli Briskman, the biker that flipped the finger to Trump’s passing motorcade, and lost her job after a photo she posted went viral.

Ms. Briskman is not taking her termination lying down. In what appears to be a deep-funded and well-orchestrated campaign, she has filed suit in Virginia state court against her ex-employer.


Indeed, most employment plaintiffs don’t launch a PR campaign in advance of their lawsuits:


… or publish op-eds in the Washington Post explaining their story on the same day they file their lawsuit.

Briskman’s claim is an interesting one: “Forcing Plaintiff to resign out of fear of unlawful retaliation by the government for constitutionally protected speech violates Virginia public policy. Both the United States Constitution and the Virginia Constitution express strong public policies that Virginians may speak on topics of public interest without fear of suffering the effects of governmental retaliation for political speech.”

Thus, she claims that her ex-employer, a federal contractor, jeopardized her First Amendment free-speech rights by firing her out of fear that that federal government would retaliate against it by limiting or terminating its contracts.

Many states have similar claims under their common laws. In Ohio, we call it Wrongful Discharge in Violation of Public Policy. It prohibits employers from dismissing employees under circumstances that would jeopardize a clear public policy manifested in a state or federal constitution, statute, or administrative regulation, or in the common law.

This case is going to be fascinating to watch. As I’ve discussed before, private-sector employees (like Ms. Briskman) generally don’t have free speech rights at work. She, however, is attempting the bootstrap her employer’s alleged (and yet to be proven) concern over the status of its federal contracts into a First Amendment retaliation claim.

So, does an employee of a federal contractor have a claim if fired over a concern by the employer that the employee's speech could jeopardize the employer's federal contracts?

I am skeptical that this claim has legal merit. But stay tuned. I have a feeling this case is going to have a long and interesting journey.

      
]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com http://www.ohioemployerlawblog.com/2018/04/wirtw-500-500th-edition.htmltag:blogger.com,1999:blog-88851184824331990.post-56549010127830024112018-04-06T07:29:00.000-04:002018-04-06T07:29:23.073-04:00WIRTW #500 (the “500th” edition) Photo by Alexas_Fotos, via Pixabay October 12, 2007. I posted my first ever edition of WIRTW (What I Read This Week). It looked a little different back then.

It’s since morphed into what I hope is a useful weekly resource for employers to find the best labor and employment blog posts each week.

Also, holy heck! Ten and a half years and 499 installments later! Who’d have thunk it‽

Thank to everyone for reading along all these weeks and year, and to the other great bloggers who’ve published content that I’ve shared. I literally could not write this column without y’all.


Discrimination

Technology

HR & Employee Relations

Wage & Hour

Labor

OSHA & Safety
      
]]> Jon Hymanhttps://plus.google.com/116144117526394434450noreply@blogger.com https://4.bp.blogspot.com/-qyO7YEDLjdQ/WsYGGEZJz4I/AAAAAAAAj2E/CSLut_2ErmgLuK9rxeFJjUMwDFmCqH5EQCLcBGAs/s72-c/piggy-bank-3146705_640.jpg