Caitlyn Jenner got the cover of Vanity Fair and a million new Twitter followers shortly after confirming that she was no longer Bruce Jenner. So, by riding that wave with a timely blog post, I should at least get page 5 — above the fold — in the latest edition of “Employment-Law Blog Hunks,” the one you all read for the articles.

(Actually, I will be on Knowledge@Wharton’s daily show on SiriusXM channel 111 – Business Radio Powered by The Wharton School today from 10-12 EDT, as a follow-up to yesterday’s post, discussing Monday’s Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc.)

Now, before my ego explodes like a baseball off of Giancarlo Stanton’s bat, let’s revisit the issue of transgender employees and restroom access. Continue reading

Holy crap. Literally.

A Texas church is now about $75,000 lighter in the wallet after a federal judge determined that having and enforcing a “no pregnancy in the workplace policy,” which prohibited the continued employment of any employee who became pregnant, violates Title VII of the Civil Rights Act of 1964. That’s the law that prohibits discrimination based on pregnancy. Yeah, it says it right there.

Here’s more on the decision from the EEOC’s press release.

At some point in our careers, as lawyers and HR professionals, we field the question, “Can I require a pregnancy employee to stop working, for the safety of either the employee or fetus?” To this, I respond that you treat a pregnant employee as you would anyone else. That is, if she is willing and able to perform her job successfully, then, under Title VII, you cannot force her to stop working.




Here they are:

Now, I haven’t run my full dork analytics on these jawns. However, just by eyeballing them, I can see that the Department of Labor has finally acknowledged a little statute called the Genetic Information Non-Discrimination Act*** slow clap *** While the forms don’t contain the full GINA safe-harbor language, the DOL does remind both employers and health care providers to comply with GINA.

(And, hey, y’all! If you notice any other changes in the new forms, hit me up in the comments below).

You don’t have to use these forms verbatim; that is, you can tweak them — provided that you still comply with the FMLA (e.g., by spelling out the safe harbor). But, if you are inclined to use the DOL’s FMLA forms, ditch the old ones that expired in February, and use these.


I’ll even treat. Ok, it’s free.

Seriously, if you don’t yet have plans today for lunch (or, for you in the West, breakfast, or whatever it is you do out there at 9 am), register here for a free SHRM webcast entitled “FLSA: Stay Safe Now and in the Future.”

It’ll be Wage and Hour 101, a great offering for HR generalists and others who need to learn (or brush up on) the FLSA basics, and don’t mind being lectured by a blogging employment lawyer in his mismatched socks and pajamas. In this webcast, you’ll learn best practices for employee classification, wage and hour compliance, and recordkeeping. You’ll also get advice for conducting self-audits of your company’s practices and what to expect from the Department of Labor when regulations are issued.

See you in a few hours…



Forcing job applicants to disclose social media logins and passwords as a condition of employment is so 2013 — kinda like this crappy blog. So, the State of Oregon is this close to becoming the first state to expand its social media workplace privacy law to forbid employers from requiring their employees or job applicants to have personal social media accounts as a condition of employment.

You can read a copy of the bill here.

So far, the bill has made it through both the House and Senate without a single “nay.” And, Mark Zuckerberg plans to buy Oregon, rename it “Gotcha, Zucka!” and secede from the Union the Governor plans to sign the bill. The new law would only impact social media accounts used exclusively for personal purposes unrelated to any business purpose of the employer or prospective employer and that is not provided by or paid for by the employer or prospective employer.

I understand the good intentions of the bill. Work is work; personal is personal and worlds don’t have to collide. But, consider two points: Continue reading

Once is happenstance. Twice is coincidence. Three times is enemy action.”

(I’m pretty sure that was from Ferris Bueller)

Yesterday, in the Wall Street Journal, I read Lauren Weber’s article “Can You Sue the Boss for Making You Answer Late-Night Email?” And the answer is yes, provided that you are a non-exempt employee under the Fair Labor Standards Act and the time you spend answering that email is more than a few minutes a week.  It’s no different than when an employee checks company email at work. Work is work. Employees get paid to work. Continue reading

Yesterday was interesting.

  1. I discovered what it’s like to use a coffee shop (with free wifi) as a law office. I even converted the empty table next to me into my conference room. I made silent vow to myself never to do that again.
  2. I learned what “eponymous” means. It was not what I thought.
  3. I realized that the ’16-’17 Sixers may have eight first rounders on their team, the oldest of whom was born in 1994. How can this tank thing possibly go wrong?

In other words, your day was more exciting than mine. However, I did read the latest edition of the Employment Law Blog Carnival: The “Wreck of the Old 97” Edition from Jon Hyman. It’s the monthly collection of all the best recent stuff from employment-law bloggers out there. This one has links to posts on employer-wellness programs, Deflategate and poop, among other great HR topics.

So, check it out.

It’s funny.

(Not “ha ha!” funny. Just, employment-law blogger, wry-smile funny).

I read different surveys about social media and hiring and the numbers vary greatly. For every survey that indicates that employers are not using social media to vet candidates, you get the one I read last night from, which reports that “fifty-two percent of employers use social networking sites to research job candidates, up significantly from 43 percent last year and 39 percent in 2013.” Continue reading