Apr 14, 2014

Employment Law Blog Carnival – Pick Your Holiday Edition

Hello, everybody!  It’s so great to be with you! I say that sincerely, because, you know, I had a near-death experience this month. Or, rather, my blog did. See, I just formed this new law firm, and whilst moving some data over to our new domain – www.laheyeavenson.com* – I accidentally deleted Current Employment. Like deleted it. Like when you read those instructions from WordPress and they say “be careful what you do on the backend of your blog” and you’re like “what idiot would accidentally screw up the code and framework for their blog – ” Yeah, I was that idiot. You’re welcome, America.

Anywho, through some digging and the fine recordkeeping work of the Internet Archive, I revived my lifeless creation, just in time to host this month’s Employment Law Blog Carnival! Of course, all this talk of resurrection, reincarnation and near-death experiences seemed apropos during these early days of Spring, with Easter a mere week away. But it’s not Easter yet, and since this is an HR law blog, I feel it’s only right that we acknowledge all the celebretory possibilities, so that no one feels marginalized or sue-happy. So, as if the incredible crop of Employment Law articles below isn’t enough, read on to discover what folks celebrate on 4/14, even if it’s just to forget tax day for a few more hours…

In Takayama, Japan, they’re celebrating a festival so old that no one knows when it started. Which is exactly how it might feel when you’ve had an employee out on extended leave. But as Daniel Schwartz and his colleague Christopher Parkin point out, strictly following a definite period of time for “permissible” leave can get you a nice ADA lawsuit from the EEOC. Here’s their post:Spiderweb Delivery? Is One Year Enough for a Leave of Absence for a Disabled Employee?

It’s Black Day in South Korea, when singles who were snubbed on Valentine’s Day wear black and commiserate over their failed love lives, usually over a plate of jajangmyeon. (Mmm, jajangmeyon….) Of course, courtship isn’t always what it’s cracked up to be. Say, when your boss offers you money to sleep with your wife. According to Eric B. Meyer, not only does this scenario lack romance, it lacks gender bias, too. Check out “When the supervisor offers an employee $$$ to have sex with his wife, that’s not gender bias, you guys.”

For Christians, today is Holy Monday, when Jesus cursed a fig tree for not bearing any fruit. The tree, of course, withered and died. If you’d like to avoid the same fate for your company, then keep an eye on those overtime hours! Both over-work and monkeying around with pay policies are great ways to disgruntle a staff in a flash. For more, check out Mike Haberman’s post on Five Acts that Violate the Overtime Provisions of the FLSA, and Ari Rosenstein’s two-parter, examining proposed changes to wage & hour laws, and the President’s recent push to extend overtime to more professional workers.

They’re celebrating Youth Day in Angola! Hooray Kids! One of the big stories for American youth has been the effect of bullying on kids’ psychology, and how it follows them into adulthood. Donna Ballman has some great thoughts on how zero-tolerance bullying policies in schools could be impacting the workplace. And, of course, we wouldn’t have kids without pregnant women. Hooray Pregnant Ladies! And that is why you should make sure your pregnancy-related policies are solid. For more, check out Mario Bordogna’s post, Accommodations for Pregnant Employees: When Laboring Means More than Just Hard Work.  Speaking of pregnant ladies, Jon Hyman’s post Lactation at work requires reasonableness on both sides shows that having a written lactation policy, and trying to find reasonable solutions, wins in lawsuits and life. Even when an employee is less-than-reasonable in their response.

One nice thing about these historical posts is that I get to talk about things I never thought I would. Like how on this date in 1846, the Donner Party left Springfield, Illinois on their doomed trek to California. In her submission, Robin Shea talks about a less-literal cannibalistic moment in American History – the Clarence Thomas hearings. Here’s 8 reasons your sexual harassment investigation is better than the Clarence Thomas-Anita Hill investigation.

If you’re a word-nerd like me, then grab your party hats! Today marks the anniversary of the first edition of Noah Webster’s dictionary, copyrighted April 14, 1828. (Suck it, Oxford! ‘Merica’s gots words, too!) And just in case you need a refresher on the import of word choice and sentence structure, John Holmquist notes a recent 6th Circuit decision that upheld arbitration of an expired contract, because the arb clause wasn’t included in the survival clause. Like Holmquist puts it – “the case is another example that you need to say what you want to say.” English language, alive and well. And while we’re talking arbitration and word-jumbles, check out Robert Fitzpatrick’s post on whether Dodd-Frank’s rules will prohibit arbitration of SOX whistleblower actions. Once again, “plain language” can mean many different things to many different judges. Webster would be proud. Or horrified. I’m not sure which.

Maybe you’re one of those people who looks to science for your celebrations. If so, you should know that the first operational Space Shuttle completed its first test flight today in 1981. If you’re looking for a way to launch a plaintiff’s employment case into the stratosphere instead, you could check out Mark Toth’s post, How to Get a Big Class Action Fast for a complete, 5-step breakdown. Or check out Robin Shea’s post, Who needs HR? We all do to find out what happens if you just get rid of Human Resources altogether.

Finally, it’s New Years Day in much of Southeast Asia! Happy sidereal vernal equinox! I would explain what that means, except it involves measuring the change in location of the sun compared to certain stars, and there’s a lot of math, and I don’t really get it. Which, come to think of it, is exactly what a lot of people say about disparate impact analysis. In his post, Alleged CFPB Discrimination isn’t Likely a Disparate Impact Case, Jake Edmiston does a much better job explaining what is – and isn’t – disparate impact than I did explaining that space stuff a second ago.

That’s it, folks! Whether you’ve discovered a great event in world history or just updated your permissible leave policies, I hope you’ve found something to celebrate today. I know I did. Happy Genome Project Completion Day, everybody!

(* These are shameless plugs, I’m sorry… Also, did I mention I formed a new law firm?)

Dec 5, 2013
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Arbitration Agreements Can Include Class Action Waivers, Says 5th Circuit

I’m pretty sure I’m on record as not being a huge fan of mandatory arbitration (requiring employees to sign a contract agreeing to arbitrate employment disputes rather than suing). If not, then, um… I’m not a huge fan of mandatory arbitration.

Having said that, I know a lot of employers love arb agreements and aren’t going to listen to me rant about them. And bully for them – those employers got a nice little win in the 5th Circuit Court of Appeals this week.

In D.R. Horton v. NLRB, the company required its employees to sign an arbitration agreement which not only required the employees to arbitrate, but waived their right to bring their claims in any sort of collective way (read: no class actions), either in court or through a class arbitration. The NLRB said this clause violated federal labor law by hampering the employee’s ability to act collectively.

The company appealed, and this week the 5th Circuit overruled the NLRB. The court basically said that, by striking down the provision, the NLRB was assuming that the principles of collective action protected by the National Labor Relations Act were more important than the Federal Arbitration Act.

This, according to the court, was giving the FAA short shrift. There’s nothing in the NLRA that should prohibit an employer from requiring employees to raise their claims individually, as long as employees are still able to file unfair labor practice charges with the NLRB.

The 5th Circuit is the fourth or so circuit to disagree with the NLRB on this issue, so we’ll see whether they keep fighting it elsewhere. But for those of you locals who love your arb agreements, I think it’s safe to add a class waiver at this point. Even though the 7th Circuit hasn’t ruled on this yet (I think…), I imagine they’d find a lot to like in the 5th Circuit’s ruling here.

H/T Jon Hyman

Oct 16, 2013
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Employment Law Blog Carnival: Haunted House Edition

Welcome, Brave Souls!

You daring few, who by choice, insanity, or lack of better job prospects, have chosen to enter the most frightening, dangerous, soul-sucking realm known to human memory:

Labor and Employment Law! 

Bwahahahaahahaahaha-ha ha… (cough).

Should you truly dare to enter this house of the damned, gird yourself for floors of terror, filled with the most despicable scenes of human (resources) horror ever collected in one place! As you enter the facility, please know, I can protect your bodies from these monsters and ghouls, but I can’t promise your mind will surviiiiiiieevvveee!

Before we enter, our fearless leader, Eric “Michael” Meyer[s] has costumes for all! Just no one touch that brightly-colored pony suit in the corner. For it contains nothing but pain and heartache. And possible termination.

The Foyer

Our first stop on our trail of terror is the Cloak Room, where thousands of spat-upon unpaid interns wait to mishandle your outerwear and bring you bad coffee! As Robin Shea explains, don’t let their non-employee status fool you into a false sense of security! One sexual harassment complaint and they pounce!

Quick! Follow me into the next room, where you’ll be met with… THE FMLA!!! [here’s where a cackle will go off. It’s going to be rad.] That’s right – a room-sized maze of FMLA questions and problems! How will you ever make it through this twisted bizzarro-world?! Read FMLA and WFMLA Trick or Treat? by Jesse R. Dill, of course!

The Study

Phew. Thank God you made it out alive! Come with me now into the study, where all the books have been replaced… with TECHNOLOGY! (Aaaaagh! Right? Scarrry!)

To your left is a scene sure to make your blood boil: employers possessing their employee’s email and cell phones! First, Donna Ballman unveils the seedy world of employers trying to destroy all your personal technology when you separate from the company! She says say no! But do you dare?! (You probably do dare. Read the post.)

But what about those guys reading their worker’s private email accounts?! ”Wait!” you say, “it’s on a company-owned device! Phew. Everything’s fine!” BUT IT’S NOT! (squeals!!) As Michael Haberman will tell you, “Just because you own the device…” YOU’LL HAVE TO FIND OUT WHAT HAPPENS! It’s not un-scary!

Now turn your heads this way, where Jon Hyman has provided something truly terrifying!KANYE WEEEEESSST!!! (oooOOOoooh!) That’s right! And he’s coming right for you with all of your employee’s harmful tweets! Your arsenal of labor and employment rules are no match for the virility of the internet! AAAGH!

Now turn your heads that-a-way, and see an employee smashing the Like button on Facebook! Over and Over! And just when you think it couldn’t possibly affect you, Joseph Leonoro tells you a court has ruled that liking things on Facebook is… PROTECTED FREE SPEECH! 

We’ll try to escape the study through the secret passage in the fireplace, but as I reach to open the door… Boom! A giant monster emerges! Is it the Beast with two horns? Spake-ing like a dragon?! No! It’s a biometric scanner ready to mark you with the devil’s code! And, as Robert Fitzpatrick points out, failing to accommodate an employee who refuses to use the machine can bring you a lawsuit from the EEOC! The horror!

The Forgotten Passage

We’ll finally make it into the passage, but what’s that sound? It’s like something followed us in! Slowly you turn…to see…THE EEOC!!!  There they are, haunting you from beyond the government shutdown grave! And, as you run away, you’ll hear Lorene Schaefer’s warnings fill the passageway: Beware EEOC’s Conciliation Efforts! 5,000 souls have already been shortchanged!

When we finally escape the agency’s clutches,  you will find the second horror of this long-forgotten passageway: The Ghosts of Ex-Employees!!! To your left is a Retiree, Yankees hat on, playing phantom bocce ball and sipping a moldy mai-tai. Why is this aged specter so happy? Because you listened to Dan Schwartz (and the Yankees), and knew the rules about discussing retirement with older workers! Now he haunts you only to complain that a tie is a laaame retiiirement giiiift! (It is. Really.)

Next to him is another pleasant poltergeist, this one young and moving! He gives you a wave and a thumbs up as you stumble through the dark. Why is ghost number two happy? Because he knew what Heather Bussing knows: that sometimes termination is a good thing, if it’s done properly!

But wait – what’s this next ghoul’s problem? You remember her – she resigned! So why does she look so menacing? Because, poor soul, she is still possessed by the bad recommendation you gave her when her new job called! Janette Levey Frisch from the Employerologist warned you! Anti-Retaliation Laws May Protect Ex-Employees TooOOoooooh!

The Fortune Teller’s Room

We emerge from the passage in a room covered in scarves and dolls and creepy sssmelllls! And there, in the middle, sits an ancient fortune teller, waiting to show you the doom to come! She lays down a card, and what does it say?!

“You will be visited by nine aged spirits in dark robes! They hold your fate in their hands!”

“No,” you say, “That’s just Phillip Miles’s breakdown of the upcoming Supreme Court Session. I should really read that.

“You should!” she yells, laying down another card. “A HA!” [Lightning crash! Also going to be rad.] “Your employees will see problems in your organization! And they won’t know who to trust! And you! You will botch the investigation!” She laughs a terrifying laugh.

“Naw,” you say, “I just read this post by Dawn Lormer all about How to Manage Whistleblower Complaints. I’m totally good, bro.”


“Aaand,” you continue, “it’ll probably be that dude in Michigan that claimed to get fired for reporting an over-billing issue to the government, but only had his own word as evidence. And John Holmquist told me that doesn’t cut it in his blog post Take my word for it…Not in Michigan.

With that, the old woman screams “Daaanng!” and disappears.

The Dungeon

Come with me now, down the creaking stairwell to the basement, where the walls are lined with cages containing the living corpses of employers who failed to heed their lawyers warnings! Listen as they wail their pain and fling their dung!

Here, on the left, is our Canadian friend who failed to properly screen and vet his candidates! Stuart Rudner told him not to, but he chose his own path! Now stuck with his horrible employee, even though she lied on her resume, we call this poor soul THE AUTHOR OF HIS OWN MISFOURTUNE!

Down the hall you hear the constant screams of “Aww Brah!” from our Californian cellmate, who ignored the new protections for domestic workers in the Golden State! If only he’d read New California Employment Law Protects Domestic Workers by Ari Rosenstein! It was right there in the title!! Bwahaha!


As we run out of the cellar, the cool air of the fall evening hits you, and you know you’re safe. Now, armed with the cautionary tales of the poor doomed spirits who came before you, you call your loved ones and announce you’re intentions to live life to the fullest from now on. You’re coming home. Changed. For the better.

Til next time, ghouls and goblins, Happy Halloween.

A Lahey | Eavenson Blog

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