Ohio Employer's Law Blog | Daily Updates | 01CThe 14th nominee for the “worst employer of 2017” is … the horny head of HR>01D plus more

The 14th nominee for the worst employer of 2017, on which you'll be be voting at year's end, is perhaps the worst HR exec ever. If she's not the worst, she's at least the most libidinous.

A Manhattan boss nibbled on her underling’s ear and whispered romantically, “I hope you’re not going to sue me.” 

But that’s exactly what he did. 

Trevor Isaac claims in a lawsuit his work as a client-relations manager at Utilisave was going fine until HR head Marina Novikova began oversharing about her swinger lifestyle. 

Novikova allegedly bragged how her “husband has a girlfriend,” and claimed she lets her teen son watch porn, according to the legal filing. 

She pestered Isaac about his sexual orientation, then hugged him against his will, he claims in the Manhattan Federal Court lawsuit. 

Despite his protests, Isaac claims Novikova’s inappropriate behavior got worse. 

She texted him a picture of a man reading a book with the title, “A– Eating Made Simple,” with the message, “Something to put a smile on your face,” he claims in legal papers. 

One message was a video of a masturbating monkey, while another featured a man with an erection trying to go through airport security.

(shaking head in disbelief)

This week is Shark Week on the Discovery Channel. And the marquee event of this year's Shark Week was Olympic swimmer Michael Phelps "racing" a great white shark. I say "racing" because Phelps did not race an actual shark. Instead, he swam against a CGI shark based on a previously recorded shark. To create the CGI, the show had to record a shark swimming in a straight line for a pre-determined distance. And, since great white sharks are not known for their trainability, the job to lure the straight-line swim fell to this guy.

Don't do this at home. #SharkWeek pic.twitter.com/hgOF0905aq

— Shark Week (@SharkWeek) July 24, 2017

Yes, that is a man, paddling a pontoon bicycle, a few feet in front of a pursuing great white shark, wearing absolutely zero protection. #worstjobever

OSHA has thousands of standards that cover many of the specific safety issues that could arise in the workplace. While these standards dig into the minutia of the American workplace, I can guarantee that OSHA lacks one for "shark-race bate".

OSHA, however, does not solely regulate of the safety of the American worker via its specific standards. It also has a General Duty Clause, which provides, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” For example, OSHA used this general duty clause to cite Sea World of Florida following a trainer’s death from a killer-whale attack. If the general duty clause can reach Sea World, it can certainly reach Shark Week.

A Minnesota federal court has ruled that an employee’s request for a religious accommodation did not qualify as protected activity to support the employee’s retaliation claim. EEOC v. North Memorial Health Care (D. Minn. 7/6/17) involves a hospital that withdrew a conditional job offer to a nurse after she disclosed that she was a Seventh Day Adventist and could not work Friday nights because of her religion.

As an accommodation, the employee offered to find a substitute for Fridays on which she was scheduled, and that she would work if she could not find one. The hospital denied her request, and, ultimately, the EEOC filed suit on her behalf claiming that the hospital retaliated against her because of her religious accommodation request.

In dismissing the EEOC’s claim, the court applied strictly interpreted Title VII’s retaliation clause.

Under Title VII, an employee engages in protected activity when she either (1)”oppose[s] any practice made an unlawful employment practice by [Title VII]” or “ma[kes] a charge, testifie[s], assist[s], or participate[s] in any manner in an investigation, proceeding, or hearing under [Title VII]. 42 U.S.C. § 2000e-3(a). … 

Applying the plain language of the statute, the court concludes that requesting a religious accommodation is not a protected activity. Under the opposition clause, a plaintiff must communicate her opposition to a practice that she believes, in good faith, is unlawful. … [M]erely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation. … 

Neither is [the employee]’s accommodation request protected activity under the participation clause. There is no evidence that [she] “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” prior to her termination.

While I applaud this court’s strict reading of the retaliation statute, employers should not view this lone district court case as a mandate empowering them to deny accommodation requests free from risk. The law on this issue is far from settled. Instead of using this case as a justification to deny an accommodation request, employers should view it as a reason to have an open dialogue with a religious employee requesting an accommodation.

How should this case have played out?

• Employer: “Nurses must work every other Friday night.”
• Employee: “My religion prevents me from working Friday nights.”
• Employer: “Then you cannot work here.”
• Employee: “What if I find a substitute for the Fridays that I am scheduled, and I’ll work any Friday night shifts for which I can’t find one.”
• Employer: “Let’s give that a try.”

True story. While trekking between San Francisco’s Coit Tower and Lombard Street, we passed a group of Japanese tourists exiting their bus. One of girls, wearing a striped shirt sort of similar to Norah’s striped dress, asked if she could take a selfie with Norah. A little Puzzled and very curious, my wife asked, “Is it because you’re both wearing stripes?” “No,” she replied, “It’s because she’s so pretty.”

Somewhere in Japan, Norah has a fan club of a half-dozen girls, all with Norah selfies on their phones.


While I’m on the subject of Miss Norah, she has some pretty cool gigs coming up over the next two weeks.

• On August 3, her band, the Major Minors, plays The Grog Shop, opening for the national School of Rock AllStars. They hit at 7 pm, and tickets are only $10, available here.
• On August 5, the Major Minors again invade Whiskey Island, with music from 2 – 6 pm, and this show is free.
• Finally, on July 30, SoR Stronsgville holds its annual Parking Lot Show, previewing its summer shows, to include Donovan’s Beatles show and Norah’s punk show. Free music and not-free food trucks start at 1 pm.

Discrimination

• Third Circuit: A single slur – just one bad word — can create a hostile work environment. — via Eric Meyer’s The Employer Handbook Blog
• Third Circuit on Hostile Work Environment (Is one “n-word” enough?) — via Phil Miles’s Lawffice Space
• Is “reverse discrimination” still a thing? — via Robin Shea’s Employment & Labor Insider
• Does Your Company Have an Anti-Harassment Policy for LGBT? — via In House
• Failure to Accommodate Employee Nuggets — via Bill Goren’s Understanding the ADA

Technology

• Why emoji in the workplace get a frowny face — via CBS Moneywatch
• I think an employee is sending nude Snapchats to his coworkers … with animal filters — via Ask a Manager
• Emails – An essential tool that can make you look like a fool — via BeLabor the Point
• IoT Security Incidents Rampant and Costly — via Dark Reading
• Cyber Threat Study: Employers Must Switch from Defense to Offense — via HR Daily Advisor
• Telework for the Future — via Workplace Prof Blog
• Can an app stop you from drinking on a work night? — via Engadget HD

HR & Employee Relations

• Telecommuting doesn’t always have to be seen as a reasonable accommodation — via Mike Haberman’s Omega HR Solutions
• The One Area of Connecticut Law Employers Love (For Now) — via Dan Schwartz’s Connecticut Employment Law Blog
• Offices Can Be Bastions of Civility in an Uncivil Time and How to Handle Work When Your Child Is Sick — via Harvard Business Review
• Vacation Time for Exempt Employees — via Evil HR Lady, Suzanne Lucas
• Gen Z Is Coming and They’ll Be Changing Your Culture Forever — via TLNT
• Separation Checklists are a Must! — via Workplace Insights
• New Employment Eligibility Verification, Form I-9 for 2017 — via Workology

Wage & Hour

• Manager Maude, Vol. I, No. 5 — via Four Peaks Advisors
• Court Says Uber Drivers Can Proceed With National Misclassification Class Action — via Gig Employer Blog
• Money for Nothing! Court Allows Employees to Pursue Lawsuit Despite DOL Settlement — via The Wage and Hour Litigation Blog
• FMLA FAQ: Can a Chiropractor Certify FMLA Leave? And Are There Limits? — via Jeff Nowak’s FMLA Insights

Labor

• NLRB Nominees Hate Puppies & Rainbows, Dems Claim — via Who Is My Employee?
• House Committee Seeks to Force the NLRB to Jettison “Indirect Control” Standard in Determining Joint Employer Status — via Management Memo
• En Banc Eighth Circuit Reverses National Labor Relations Board’s “Sick Day” Jimmy John’s Decision — via Labor Relations Today
• Jimmy John’s Fired Workers for Making a ‘Disloyal’ Meme. A Court Just Ruled That’s Okay. — via Workplace Fairness
• Two of the Craziest Labor Stories You’ll Ever Read — via LaborPains.org

OSHA & Safety

• Ohio Factor Dinged for Machine Hazards — via Joe’s HR and Benefits Blog
• OSHA Fall Protection Rule Raises Questions Over ‘Temporary, Relatively Infrequent’ Work — via OSHA Law Blog
• BWC Update: Rebates, True-ups, and Future Dating — via Ohio Chamber Blog

 

Last week, Donovan turned 9. Since we were in California during his birthday, we’ve had a bit of a delayed celebration back home. Since D-man has Celiac Disease and cannot eat anything with any gluten, he wanted an ice cream birthday cake. For him, however, ice cream can be tricky. Even if the ice cream itself contains zero gluten in its ingredients, it can still make him ill if it becomes cross-contaminated.

Enter Mitchell’s Homemade Ice Cream (which is not only Cleveland’s best ice cream, but also happens to be some of the best ice cream anywhere). Mitchell’s takes its allergens seriously. All you have to do is mention a gluten allergy, and the servers know exactly what to do to eliminate any risk of cross-contamination. They not only sanitize the scooper, but also open a fresh, untouched container of the flavor-of-choice. For these reasons, we have as much confidence as one reasonably can have that Donovan can enjoy his ice cream without ingesting any accidental gluten.

When we celebrated Norah’s birthday in May, we also ordered an ice cream cake from Mitchell’s. At that time, we advised of the gluten issue, and they prepared the cake with zero cake base, all ice cream. Since May, however, Mitchell’s has decided to discontinue its prior practice of gluten-free, ice-cream-only cakes. Thus, when we called earlier this week to order Donovan’s cake, the response was, “We don’t do that anymore.”

Unwilling to accept “no” for an answer, I asked for the store manager to give me a call. He explained that his hands were tied, and that corporate decided that a missing cake base allowed for too many irregularities in shape. Thus, no more gluten-free cakes. Still unwilling to accept a flat “no”, I asked for the phone number of Pete Mitchell, one of the company’s founders, owners, and executives. With phone number in hand, I left a message for Pete, explaining my dilemma, asking that he make an exception for Donovan. Within a couple of hours, the store manager with whom I had previously spoken, Adam, called me back. He said that Pete Mitchell had received my message while on. Pete called Adam, and they discussed a possible solution, which Adam relayed to me. Instead of making a gluten-free cake, they could clean and sanitize a pie tin and craft a gluten-free birthday “pie”.

Problem solved. Satisfied customers. Happy birthday boy.

And, an employment-law lesson to boot. When dealing with a disabled employee, the ADA requires that you engage in what is called the “interactive process”. This process is one of communication and cooperative problem solving; you must talk to your employee to identify appropriate reasonable accommodations and implement one, if available and without imposing an undue hardship, that will enable the employee the perform the essential functions of the job. The failure to engage in this interactive process (even if you view it as an act of futility) is, in and of itself, a violation of the ADA.

Don’t take the easy way out with your disabled employees when they ask for accommodations. Talk to your disabled employees and see if there is an available solution. Even if you are legally right (and, the odds are good that you won’t be), you will leave the employee feeling offended and upset. Those feelings breed discontent, which, in turn, breed lawsuits.

It would have been easy for Mitchell’s to keep saying “no” until I went away. Thankfully it didn’t, and crafted a solution that fit within its new policy and provided Donovan the gluten-free ice cream cake he wanted. So thank you Pete Mitchell and Adam the Strongsville store manager, your flexibility and accommodating nature made a 9-year-old boy very happy.