Exactly one month ago, I addressed what many consider to be the elephant in the room when it comes to transgender employees: bathroom use.

On Wednesday, EEOC Commissioner Chai Feldblum fired off a series of tweets (1, 2, 3, 4, 5, 6, 7) to lawyers representing employers and employees. Below (and here) is the one she sent to my side of the bar:

By extension, this tweet is intended for companies as well.

The tweet links to an article from Buzzfeed’s Chris Geidner. Mr. Geidner addresses a recent EEOC decision which underscores the risks employers face when they play bathroom police for transgender employees:

In a decision dated April 1, the Equal Employment Opportunity Commission found that Tamara Lusardi “was subjected to disparate treatment on the basis of sex” — a violation of Title VII of the Civil Rights Act of 1964 — while working as a civilian employee at the Army’s Aviation and Missile Research Development and Engineering Center in Huntsville, Alabama.

Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor. In addition, a supervisor repeatedly, and in front of other employees, referred to Lusardi by her former male name and with male pronouns.

While the EEOC’s decision involves a federal employer, and does not bind private employers, don’t think for a second that the EEOC would hesitate to pursue similar claims in the private sector. Indeed, it has. We’ve also seen a sex discrimination lawsuit by a former Sak’s transgender employee. That case settled.

As I noted in my prior transgender bathroom post, this issue is real. Employers need to educate their employees and train their managers that respect in the workplace extends to transgender employees too.

Let’s start this post off with a disclaimer:

People! I’m just a man; not a god.

I’m going to address travel time under the Fair Labor Standards Act. Many of you folks live in crazy states, like New York and its crappy basketball team, which is even worse than the Sixers. I didn’t know that was possible, that have more lenient state versions of the Act. I’m not giving any advice about state laws or local laws. Heck, I’m not giving any legal advice at all. The blog’s general disclaimer applies with equal force to this post.

Now, let’s get to it… Continue reading

Where do I find these cases, you ask? Well, I sold my soul, and a stack of Billy Ripken baseball cards, to the devil a long time ago. I ain’t telling.

But seriously, this case isn’t so much about the particular facts…

  • White employee tosses banana peels at work
  • Black employees complain of racism
  • Investigation ensues
  • White employee is forced to resign

…as it is about making sure that all involved know why an employee is being fired, and can articulate those reasons consistently. Continue reading

Oh, that collective sigh of relief of not receiving a daily email update yesterday from The Employer Handbook. (Yes, you can sign up to receive daily email alerts to my blog).

Folks, I’m sorry. Monday, I was a deadbeat; I didn’t pay my MailChimp bill. So, if you rely upon email to receive my daily blog posts, you missed out Monday on what was probably the post of the year definitely the post of the day.

But, today, I’m all paid up and back in MailChimp’s good graces. They even sent me a my own personal mailchimp. I named him Buddy.

Now where did I put my pills?

Ok, moving on… Continue reading

Happy Monday, everyone.

Glad to see I didn’t break some of your content filters on Friday with my filthy NLRB post. But, hey, just another day in the interesting life of an employment lawyer / HR professional, amirite?

Today, I bring you a very simple lesson, courtesy of the Third Circuit Court of Appeals, from right here in my backyard. That lesson is this:

When you terminate an employee, do not write “Health Reasons” on the employee’s termination form. Continue reading

[WARNING: This post has some VERY foul language. Although the National Labor Relations Board may tolerate it, many of you may be offended].


 

By now, all of us have read the articles, which claim that the law permits your employees to complain about work on social media … and keep their jobs.

Well, that’s not exactly true. The National Labor Relations Act, which applies to most private-sector workplaces — both union and non-union — protects employees who engage in protected concerted activity. Protected concerted activity is where employees discuss working conditions with one another.

But, an employee who gripes alone is not protected. Also, vulgar and obscene comments are not protected.

Until now. Continue reading

Your company has set up a private LinkedIn Group. Your company, which controls who may become a member of the Group, has seen the number of Group members swell to nearly 700. Way to go! Because it’s a private group, the names of all of the group members are not generally available to the public.

Now, let’s say that the employee whom you have appointed to manage the LinkedIn Group — the one who knows all the passwords — up and leaves. And, of course, he doesn’t return the passwords. What can you do?

How about a lawsuit for misappropriation of trade secrets? Continue reading

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One of the great things about having my own blog is the ability to share and engage with my readers in a number of relatable ways. Mostly, it’s through a casual — some may say snarky — discussion of trending legal issues affecting the workplace.

But, every once in while, I like that we can take a different path together and share personal stories. Whether fueled with joy or sorrow, these “off-topic” posts are what make this forum special.

Today, I want to share with you an update on a special little boy: Shane Metzgar.

Last year, at about this time, I blogged about the story of the Metzgar family, great friends of mine whose youngest of three was diagnosed with alveolar rhabdomyosarcoma, an extremely rare form of cancer which kills 9 out of 10 children afflicted.

Over the past year, Shane went through dozens of rounds of chemotherapy, surgeries, and other treatments to fight cancer. Still shy of his second birthday, Shane’s strength and endurance helped give his family, his mom, dad, two older siblings, grandparents, uncles, aunts, etc., the strength to support his battle.

Sadly, Shane Metzgar passed away Monday. A fighter to the end who recently earned his Mickey ears from a trip to Disney World, Shane died at home, where he was embraced in love, support, and pride. Emily Babay at Philly.com has an article on Shane’s story. Shane’s parents, who are donating Shane’s tumors to the Keller Research Center, with the goal of finding more information about his type of rare cancer, also have a Facebook Page. That page chronicles the life and times of this young, smiling warrior. It’s also where I learned yesterday that Shane got in a proper middle-finger tribute to cancer.

Although Shane succumbed to this horrible disease, he did not “lose” to cancer. Both Shane and his story have helped spotlight this terrible disease. The Metzgars have also set up a foundation, called Shane’s Future Days, to raise awareness  — which you can also do by sharing this post on social media, or just emailing it to a family member, friend, or co-worker. Shane’s Future Days will also raise money for rhabdomyosarcoma research, and help families affected by cancer. If you’d like to donate, click here.

We’ll never forget you, little boy.

R.I.P. Shane Metzgar.

JetBlue A320 at Orlando

One week ago today, a Germanwings plane carrying 150 people crashed and killed everyone on board. Since then, there is mounting evidence that the co-pilot, who was in great physical shape, was also suffering from mental illness which caused him to deliberately steer Flight 9525 into the French Alps.

Why didn’t Germanwings taken preventative steps? Apparently, the co-pilot hid his mental illness from his employer.

Three days after the Germanwings catastrophe, a former JetBlue airline pilot, who was locked out of the cockpit and had to be subdued by passengers, filed this lawsuit in federal court against his former employer.  He claims that the airline was negligent because it knew or should have known that he was “physically and mentally unfit to fly.” Continue reading

I intended to begin the week with a post about a company’s legal obligation to predict — yes, predict — an employee’s mental fitness for duty. Then, I started on a brief tangent on Ellen Pao, the former partner of a Silicon Valley venture capital firm, who just lost a highly-publicized gender discrimination claim against said former employer.

And a few hundred words later, that brief tangent became its own blog post — this one. (If you want a wild lawsuit brought by an airline captain who claimed that his former employer was negligent by failing to predict that he’d have a manic in-flight episode, come back tomorrow). Continue reading