Thumbnail image for rainbowflag.jpgAccording to a Friday report from Cynthia L. Hackerott at Wolters Kluwer, President Obama will sign an Executive Order today banning discrimination against LGBT employees by federal contractors.

Last month, I blogged here that the White House had announced that it intended to eventually ban LGBT discrimination by federal contractors through Executive Order because the Employment Non-Discrimination Act (ENDA), did not make it through Congress.

Since that time, several gay-rights groups withdrew their support for ENDA, fearing that it afforded “religiously affiliated organizations … a blank check to engage in workplace discrimination against LGBT people.”

Following the Supreme Court’s Hobby Lobby decision, religious groups had pushed the White House to include a religious exemption in the President’s Executive Order. However, Ms. Hackerott and Jennifer Bendery at The Huffington Post (here) confirm that today’s Executive Order will not have a religious exemption.

What the Executive Order does.

The Executive Order will amend an existing Executive Order originally signed by President Lyndon Johnson, which bans discrimination by federal contractors against an enumerated list of protected classes. President Obama’s amendment adds sexual orientation and gender identity to that list.

According to Ms. Bendery, this Order affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation’s workforce.

Some non-federal contractors may also be covered.

It’s worth noting that many states and municipalities already protect LGBT employees from workplace discrimination, regardless of whether their employer’s contract with the government. Most Fortune 500 and 100 companies already have internal rules banning LGBT discrimination.

Update: President Obama has signed the Order and the White House has published a fact sheet entitled “Taking Action to Support LGBT Workplace Equality is Good For Business“.

Let’s assume that you operate a business in New Jersey. And you get to thinking:

“What if we put a provision in our employment application, by which a job applicant waives the two-year statute of limitations applicable to most workplace claims and shortens the period for such claims to six months?”

Would that be enforceable?

Well, since we’re talking about New Jersey, which is pretty much the most employee-friendly state next to California, most experts would tell you to pour ’em a glass of whatever your drinking, because your idea is nuts.

Like spawn of Lindsay Lohan and Charlie Sheen cray-cray.

Well, spla-dow!

Tell those so-called experts to check themselves before they wreck themselves, because, late last month, the Superior Court of New Jersey, Appellate Division (in this opinion) said that an employment application provision shortening the statute of limitations could be binding, yo!

The Court emphasized that the provision in question was “contained in a two-page application and set forth very conspicuously in bold oversized print and capital lettering, just above the applicant’s signature line. The terminology was clear and uncomplicated. Plaintiff was put under no pressure to complete and sign the application quickly.”

And did I mention that English is the plaintiff’s second language? Wow!

This is a MONSTER VICTORY (see what I did there?) for NJ employers. A statute of limitations shortener, maybe paired with a jury trial waiver, that’s a pretty potent 1-2 punch to fend off workplace lawsuits. 

Well that, and a respectful workplace, with training and such.

But, you get the idea.

Hey there, United States District Court for the Northern District of Illinois, Eastern Division.

This Americans with Disabilities Act failure-to-accomodate opinion right here. You had me at “Ortiz reported to work on April 5, 2010, carrying one empty and three full cans of ‘Mike’s Hard Lemonade’ (an alcoholic beverage), along with raw meat.”

I may borrow that line for my Hangover Part IV treatment. It stars Zach Galifianakis and the rest of the crew — cameos by Pee Wee Herman, Octomom, and Peter Dinklage (as Tyrion Lannister) — and centers around the hi-jinx that ensue after the boys get blackout drunk following Alan’s nephew’s bris.

game of thrones got tyrion lannister peter dinklage gif

(Three years later…)

And the Academy Award for best adapted screenplay goes to Eric Meyer.

“First of all, I’d like to thank God. I’d also like to thank the members of the Academy, my family, and the United States District Court for the Northern District of Illinois, Eastern Division. (applause) Step up your game, Western Division (laughter)…”

Yes, friends I stole borrowed the plot from the Illinois federal court, which opined (here) that an employee who shows up to work smelling of alcohol and with a blood alcohol level of .198. (15 minutes later, the level was .203), can be fired without violating the Americans with Disabilities Act. Yes, it’s true.

(The opinion; not my script idea, dummies).

It doesn’t matter that alcoholism is an ADA disability (it is) or, for that matter, what other disabilities the plaintiff may have had. Reporting to work in possession and under the influence of alcohol not only renders that employee unqualified under the ADA, but is a terminable offense.

So, next time one of your employees shows up to work zooted, carrying a four-foot gravity bong and a medium rare chateaubriand, go ahead and fire that person. No ADA violation there.

And then call me. So, I can start working on my next script.

(In the meantime, nominate this blog for the ABA Blawg 100 Amici, would ya? I have a prestigious blawg title to defend. Yes, I just used the word “blawg” in two straight sentences. Ok, three).

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It’s been a rough year for RadioShack. One that, for me, came out of nowhere.

That Super Bowl commercial was freaking brilliant! (Second only to this one).

So, of to a great start in February, I thought things were looking up for RadioShack. But, then they announced they were closing 1,100 stores and one analyst later cut RadioShack’s stock price target to $0. ZERO!

And, then, last week, in this opinion, a Pennsylvania federal court delivered a swift kick to the RadioShack’s you know what, when it held that RadioShack use of the “fluctuating workweek” method for calculating overtime violates the Pennsylvania Minimum Wage Act.

We’ve talked about the fluctuating workweek here before, in a post I trust maybe three of you read. Because wage-and-hour posts appeal to my readers about as much as Paula Deen likes kale and quinoa.

Maybe, now would be a good time to cue up the music.

For those who care — hey, welcome back you three — basically, the fluctuating workweek method of calculating overtime compensation allows an employer to pay a non-exempt employee a fixed, weekly salary, regardless of the number of hours worked. OT is then paid out at one-half times the regular rate of pay (rather than one and one-half times the regular rate, as is the default for payment of OT). The regular rate of pay is determined by dividing the fixed salary by the total number of hours worked in a workweek. This method of paying OT benefits the employer if employees generally work more than 40 hours per week (because the effective hourly rate is driven down).

But, unlike under federal law, the supporting regulations to the PMWA require that even if an employer reaches an agreement with its employees before work is performed as to a regular rate of pay, the employer must still pay OT at a “rate not less than 1 ½ times the rate established by the agreement.”

Between the regulations two prior cases (this one and this one), which both held that the fluctuating workweek method of overtime calculation is impermissible under the PMWA, the Court concluded that RadioShack too had violated the PMWA by not paying out OT at one and one-half times the regular rate.

At this point, it’s safe to say that PA employers who utilize the fluctuating workweek are just asking for trouble.

On the heels of yesterday’s astounding blogging success, “What LeBron’s return teaches employers about accommodating the Mark of the Beast” — Pulitzer, please — I was planning on coming at you today with “Five Workplace Lessons from Dutch Soccer’s Third Place in the World Cup.” It was going to have this cute Orange is the New Black theme, but then, the Twitterz spoke.

Raise your hand if one of the U.S. Equal Employment Opportunity Commissioners told you what to blog about today. Quit showing off, Dan Schwartz, put your hand down.

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So, it looks like we’ll be talking pregnancy discrimination today.

Yesterday, the U.S. Equal Employment Opportunity Commission issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, a FAQ and a Fact Sheet for Small Businesses.

A split in opinion among the EEOC Commissioners.

The final vote on the guidance was 3-2 in favor. You can read EEOC Commissioner Feldblum’s on Approval of the Enforcement Guidance here. She praised the Commission’s position in its Enforcement Guidance as “simple” and based “on a plain text reading of the PDA.”

And then you’ve got Commissioner Lipnic’s statement disapproving of the EEOC guidance here. In particular, Commissioner Lipnic questioned the timing of the guidance (right before the Supreme Court is set to rule on this case), and without first making the EEOC’s Guidance available for public comment.

Commissioner Barker too criticized the EEOC Guidance here. In particular, she panned it not only for its timing, but also for requiring employers to provide the types of accommodations for pregnant employees that the Americans with Disabilities Act requires for disabled individuals.

(Commissioners: If you’d like to continue this debate, I have plenty of blog space available for you. It’s not all Ramadan Bagel Parties and me contemplating ADA accommodations for female masturbation. Just sayin’).

Five takeaways for employers.

As you all should know, the Pregnancy Discrimination Act, which is part of Title VII, makes it unlawful to discriminate in the workplace based on pregnancy, childbirth, or related medical conditions. The new EEOC Guidance, however, highlights a few issues of which employers should take particular note. Here are five of ’em:

  1. Not only is it unlawful to discriminate against an employee who is currently pregnant, but discrimination based on past pregnancy and a woman’s potential to become pregnant also violates the law.
  2. You can’t require a pregnant employee who is able to do her job to take leave — even out of genuine care for the employee or the fetus. More on that here and here.
  3. Lactation is a pregnancy-related medical condition. Duh!
  4. Employers who provide health insurance benefits must also provide insurance that includes coverage of pregnancy, childbirth, or related medical conditions.
  5. Employers must offer light duty to pregnant employees if a light duty position is available.

The guidance also includes, well, guidance, on the interplay between pregnancy and the Americans with Disabilities Act and offers a list of employer best practices.

And since we’re on the subject, I’d be remiss if I didn’t ask. If anyone out there is available to babysit my four kids this weekend so that the wife and I catch dinner and the late showing of Dawn of the Planet of the Apes (her choice), holler at me.


I’ll save the “Five Workplace Lessons From LeBron James’s Return to Cleveland” post for the other bloggers.

Here’s one — one which I guarantee you don’t find anywhere else:

If during his time in Miami, LeBron James became a Fundamentalist Christian, and, upon filling out his new-employee paperwork with the Cleveland Cavaliers, refused to provide a social security number because it would cause him to have the “Mark of the Beast,” the Cavaliers would not have to provide him with a religious accommodation.

You see, folks, to maintain a claim for religious discrimination, an employee must show, among other things, that his bona fide religious belief conflicts with an employment requirement. Assuming that LeBron’s religious belief is bona fide, according to this recent Ohio federal court decision it does not conflict with an employment requirement. Indeed, the IRS requires that employees provide a social security number. So, it’s a government requirement, not an employer requirement.

In which case, the Cavs can just cut LeBron.

And speaking of beastmode, this may be a good time to alert you that ABA Journal has opened nominations for the 2014 Blawg 100 Amici, its list of the top 100 law blogs in the country. Last year, y’all came through big time!

If you’d like to nominate this blog again in 2014, you can do so here.

Image Credit: CaringMerryKouprey on

Call it a cheap way to increase my SEO — Kim Kardashian Justin Bieber love child — but I’m ending the week the way I started it: with another social media post.

Come you moths to my social media flame.

Ha Ha! Made you listen to The Bangles! Good luck getting that song out of your head. Maybe this will help. #Sike

So, while you curse me for planting kitschy 80’s ballads in your head, check out the top ten social media red flags (according to a CareerBuilder survey) why companies are passing on job candidates:

  • 46% Posted provocative or inappropriate photographs or information
  • 41% Posted information about them drinking or using drugs
  • 36% Bad-mouthed their previous company or fellow employee
  • 32% Poor communication skills **Meyer curses survey**
  • 28% Discriminatory comments
  • 25% Lied about qualifications
  • 24% Shared confidential information from previous employers
  • 22% Linked to criminal behavior
  • 21% Screen name was unprofessional
  • 13% Lied about an absence

Among the worst social media content that employers had identified as candidate disqualifiers: (1) A social media profile included links to an escort service; (2) Posting a photo of one’s own arrest warrant (although a sexy mugshot has been known to lead to a modeling contract); (3) Candidate had sued his wife for shooting him in the head.

But all is not lost for us social media dorks — holla if you hear me! Survey says: social media can help separate you from the pack (in a good way, as opposed to a shot-in-the-head way) too. Among the common reasons employers hired a candidate based on their social networking presence are:

  • 46% Got a good feel for the job candidate’s personality, could see a good fit within the company culture
  • 45% Background information supported their professional qualifications for the job
  • 43% Job candidate’s site conveyed a professional image
  • 40% Well-rounded, showed a wide range of interests
  • 40% Had great communication skills
  • 36% Job candidate was creative
  • 31% Received awards and accolades
  • 30% Other people posted great references about the job candidate
  • 24% Job candidate had interacted with my company’s social media accounts
  • 14% Job candidate had a large amount of followers or subscribers

Well, now I’m not sure if it’s the “site conveyed a professional image” personal validation ** fart ** or the lingering sugar high from yesterday’s Fluffernutter gorging, but I’m going to extend a final opportunity to snag a copy of my slide deck from my SHRM presentation, “Social Media: Practical Guidance from the Youngest Attorney in the Room.” 

Send me an email, and the PowerPoint is yours.

Image credit: Imgur

Last night, having come across this wacky Family Show gif, I couldn’t decide whether to binge watch the first season of Amish Mafia. Again. For the third time.

(And, by third, I mean eighth).

Or dip my English toe into the Breaking Amish pool.

So, in an attempt to get in the mood, I tried to bake a shoofly pie, but, short on blackstap molasses and a replacement plug for my Easy Bake Oven, I quickly audibled to a Fluffernutter.

Because nothing speaks to me to resolve a Wednesday night Amish television dilemma like a Fluffernutter, amirite?

But, two — ok, two-and-a-half — Fluffernutters later, I had a hankering to blog about the Supreme Court’s employment-law docket for next session, which includes a pregnancy discrimination case, involving the manner in which an employer would have to accommodate a pregnant employee.

You can read more about that one here and here.

But, then, my peanut-buttery-marshmallow focus honed in on this recent decision from United States District Court for the Southern District of New York. It involves an employee who returned from maternity leave and, shortly thereafter, applied for a job promotion, only to be bypassed for another candidate. So, she quit and sued for pregnancy discrimination.

Now, the Pregnancy Discrimination Act prohibits discrimination based on pregnancy. It also protects those who have recently given birth…up to a point. That is, a new mom is protected too. But, the passage of time will eventually carry a new mom outside of the protection of the Pregnancy Discrimination Act.

How long you ask? Well, according to the court deciding the employer’s motion to dismiss, about four months, which, ironically, is the time it would take me to master the art of baking shoofly pie.

In denying the motion to dismiss and allowing the bypassed plaintiff to continue to pursue her pregnancy discrimination claim, the court measured the time period from the date of childbirth to the date the plaintiff first applied for the promotion, which was under four months. (Rather than when the employer hired someone else to fill the position, which was beyond four months).

So, employers, learn from the mistake made here and do it right: wait four months and a day before taking adverse employment actions against new moms, don’t allow pregnancy (or recent childbirth) to factor, at all, into your employment decisions. Make sure that your managers, the ones making the decisions, understand that as well. And don’t forget about sex-plus discrimination either.

Hey, how’d that last song get in there? Someone call my music editor!

Image credit: Giphy

Work with me here folks:

  1. Late last month, I had intended to blog about this Idaho case, in which a nurse was denied unemployment compensation benefits because of a threatening Facebook post. But, Molly DiBianca at the Delaware Employment Law Blog beat me to it. You can check out her post here.

  2. Speaking of Idaho, that’s right next to Montana, where you’ll find the City of Bozeman. Ah yes, the City of Bozeman, the poster child for why states have enacted laws protecting employees from having to disclose social media logins and passwords. And the latest state to do so is Rhode Island. You — yeah, you there in Providence — can view a copy of the new law here.
  3. This flood of social media privacy laws was just one of the topics I discussed at my SHRM Annual session a few weeks ago. Last chance to get a copy of my slide deck. Just email me for it.
  4. Another subject we discussed was how to draft a “bulletproof” social media policy. Well, here’s a post from Jason Shinn at the Michigan Employment Law Advisor about — are you sitting down? — an NLRB Administrative Law judge who broke tradition of throwing shade at social media policies long enough to actually bless one.
  5. What about your social media policy? Yeah, you! Does your policy address social media use “off the clock?” It should, because employee use of social media “off the clock” may still impact your workplace.
  6. And, finally, if you are curious about what the Americans with Disabilities Act says about employee medical information and social media — who isn’t? —  then check out Jon Hyman’s post at The Ohio Employer’s Blog.

Kevin Bacon, who I trust is reading this post, would be proud.

Image Credit: QualifyGifs on Imgur

A few months ago, I blogged about a California federal court decision, which recognized that Walgreens may have an obligation under the Americans with Disabilities Act to accommodate one of its cashiers who opened a $1.39 bag of chips (without having paid for it first) because she was suffering from an attack of hypoglycemia (low blood sugar).

That post was entitled “The ADA may require companies to accommodate employee theft. Yep, stealing.

Unfortunately, definitive guidance on that will have to spring from another lawsuit. That is, Walgreens settled for $180,000 last week. A copy of the consent decree is embedded below (and can also be found here).

Now, I’m reasonably sure that Walgreens is right that employee theft is not a reasonable accommodation for an ADA disability. And let’s assume that Walgreens has strict rules on employee theft and grazing.

But would failing to discipline this cashier really blow the lid off of Pandora’s Box? Or did a Supervisor / HR Manager / Lawyer (some combination) simply overreact by failing to cut some slack to a diabetic employee who needed to eat a small bag of potato chips — I’ll draw the line at a can of Pringles — to avoid a low blood sugar attack?

You know, it’s important to train your managers how to address ADA accommodation issues. It’s also important to remind your managers that using their best judgment counts for something too.

Who knows? It may only cost you $1.39, instead of $180,000.