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Practice/Industry Group Overview

Our labor and employment practice encompasses all aspects of the employment relationship in both union and non-union settings.  We provide advice, counsel and litigation experience to businesses of all sizes — from large Fortune 500 companies to small and medium size businesses.

We assist employers to improve employee communication, increase efficiency and decrease the risk of litigation through a proactive approach, including the development of personnel policies and employee handbooks.  Our innovative employment audit and policy review programs help our clients avoid employment-related issues before they turn into lawsuits.

We counsel our clients on the most difficult employment and human resources decisions, including the structuring of necessary workforce reductions, in order to both maximize financial objectives and minimize exposure to litigation.  This includes layoff strategies, plant shutdowns and issues surrounding the enforceability and advisability of severance agreements with individual employees.  We provide advice to our clients with respect to employment, executive compensation, non-competition, confidentiality and similar agreements, and we guide our clients through the maze of state and federal laws affecting the workplace.

We represent employers in federal and state court, in defense of discrimination lawsuits, wrongful discharge claims and related employment actions.  We have extensive experience representing employers in disputes involving non-competition agreements, the misappropriation of trade secrets and efforts by competitors to solicit and hire their employees.  We also defend employers and plan sponsors from employee benefit claims under ERISA.

On the administrative side, our attorneys regularly appear before the Equal Employment Opportunity Commission, the Department of Labor, and similar state agencies to defend our clients against discrimination charges based upon race, sex, age, handicap and religion, as well as wage and hour and unemployment charges.

We have considerable expertise in traditional labor matters as well, including union avoidance, collective bargaining, contract administration, labor arbitrations, strike maintenance and all manners of related issues before the National Labor Relations Board and federal courts.

Recent examples of our work include:

  • Successfully defending our client sued for age discrimination by a terminated employee
     
  • Obtaining summary judgment in favor of a company charged with sexual harassment and wrongful discharge
     
  • Obtaining an injunction to stop a former employee, in violation of a covenant not to compete, from continuing to work for a competitor
     
  • Obtaining a favorable determination from the Equal Employment Opportunity Commission in response to a charge of race discrimination filed against our client by one of its employees
     
  • Successfully defending our client and one of its top executives against claims alleging sexual harassment for which the executive faced personal liability
     
  • Assisting our client in structuring a workforce reduction and negotiating severance arrangements with its employees
     
  • Negotiating cost effective collective bargaining agreements on behalf of employers
  • Assisted employer with strategies to avoid union organization
     
  • Advised buyer of a company whose employees were unionized as to relevant acquisition strategies

 
 
Articles Authored by Lawyers at this office:

Do Not Force Employees to Work during FMLA Leave
Jonathan T. Hyman, August 15, 2014
With technology making work-from-home more and more feasible, it is easier and easier for employees to work while "out" on an FMLA or other leave. If an employee seeks FMLA leave, however, can an employer force an employee to work, even if the work is paid? According to Evans v...

When Retaliation Stands the Test of Time
Jonathan T. Hyman, August 15, 2014
Often when we consider the issue of temporal proximity in a retaliation case, we examine it from the standpoint of whether temporal proximity is sufficient to infer retaliatory intent when the adverse action happens right on the heels of the protected activity. What happens, however, if the...

Apparently, “Information Security” is Now an Unfair Labor Practice
Jonathan T. Hyman, August 14, 2014
We have an important duty to our customers and our employees to respect the information we hold about them and ensure it is protected and handled responsibly. The trust of our staff and customers is very important, so we take our obligations under relevant data protection and privacy laws very...

You Might Want To Reconsider If You Send Your FMLA Forms via Regular Mail
Jonathan T. Hyman, August 12, 2014
One of the very first things a lawyer learns in law school is the “mailbox rule.” This rule simply states that if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed ... that it reached its destination at...

Beware The “Anticipatory Pregnancy” Claim
Jonathan T. Hyman, August 11, 2014
In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the...

More on Anticipatory Pregnancy Discrimination
Jonathan T. Hyman, August 11, 2014
Every so often, I write a post that rankles some feathers. Yesterday’s was one such post. Recall that yesterday I discussed a case in which a court concluded that an employer was justified in firing an employee whose pregnancy restrictions rendered her unfit to perform the duties of her job,...

LinkedIn’s $6M FLSA Settlement Provides a Good Lesson to Employers (Updated)
Jonathan T. Hyman, August 06, 2014
LinkedIn will pay nearly $6 million in back pay and liquidated damages to 359 current and former employees following a Department of Labor investigation, reports the DOL.

You Cannot Fire an Employee Who Asks for Time Off for His Pregnant Wife's Medical Appointment
Jonathan T. Hyman, August 05, 2014
One of the very first posts I ever wrote on this blog, all the back in May of 2007, detailed the EEOC’s then-recent publication of enforcement guidance on what it called caregiver discrimination. It seems that more than seven years later, some employers still haven’t gotten the message....

6th Cir. Invalidates Individual Waivers of FLSA Collective Action Participation
Jonathan T. Hyman, August 02, 2014
The wage-and-hour class or collective action lawsuit is one of, if not the, greatest risk facing employers. Many of these lawsuits are filed by disgruntled ex-employees. And, many employers seek to limit their risk by securing waivers from employees, in which employees covenant not to participate...

NLRB Seeks to Supersize Its Joint-Employer Standard
Jonathan T. Hyman, July 30, 2014
The NLRB is waging war on employers, and it’s drawing its latest battle line at the McDonald’s drive-in. Yesterday, the NLRB Office of General Counsel announced that it has authorized complaints against 43 different McDonald’s franchises; it also announced that in each case it...

Will the Ohio Supreme Court Eliminate Manager and Supervisor Liability for Discrimination?
Jonathan T. Hyman, July 30, 2014
Ohio’s discrimination is unique in that it allows for the imposition of individual liability against managers and supervisors for their personal acts of discrimination. The case, Genaro v. Central Transport (1999), is the bane of defense lawyers and employers alike. Aside from adding a...

“Unionism” as a protected class?
Jonathan T. Hyman, July 29, 2014
Way back in 2012, the New York Times published an op-ed titled, A Civil Right to Unionize, which argued that Title VII needs to be amended to include “the right to unionize” as a protected civil right. At the time, I argued that including “unionism” as a protected class was...

Orange Is the New Sexual Harassment Lawsuit
Jonathan T. Hyman, July 25, 2014
Orton-Bell v. State of Ind. (7th Cir. 7/21/14) [pdf] concerns allegations of sexual harassment levied by a substance-abuse counsel at an Indiana maximum security prison against her co-workers and superiors. The allegations break down into two categories:

President Signs Executive Order Banning LGBT Discrimination by the Federal Contractors and Government
Jonathan T. Hyman, July 23, 2014
Yesterday, President Obama amended two prior Executive Orders, adding new protections against sexual orientation and gender identity discrimination. Executive Order 11246, which extends anti-discrimination obligations to federal contractors, now also includes prohibitions against sexual orientation...

When Your Plaintiff Is a Prostitute
Jonathan T. Hyman, July 22, 2014
Let’s say an employee sues your company for sexual harassment. And let’s say the allegations are bad-that the supervisor told the plaintiff he could save her job if she “f***ed” him, after which the supervisor raped her. Like I said, BAD. As an employer, you don’t have...

Cursing the Boss May Be Protected Conduct Under the NLRA
, July 21, 2014
The National Labor Relations Board held that an employer violated the National Labor Relations Act by firing an employee who shouted profanities at the owner of the company.

Should You Limit Bathroom Breaks For Employees?
Jonathan T. Hyman, July 21, 2014
Teamsters local 743 has filed a complaint with the National Labor Relations Board claiming that an Illinois faucet manufacture unfairly disciplined 19 workers for “excessive use” of washrooms. What’s excessive, according to the company? Sixty minutes over the last 10 days, or a...

Supreme Court Rules Contraception Coverage Violates Employers' Religious Freedom
, July 21, 2014
On June 30, the U.S. Supreme Court issued its decision in Burwell v. Hobby Lobby Stores, holding that the Patient Protection and Affordable Care Act’s (ACA) contraceptive coverage mandate violated the religious freedom of family-owned corporations.

TOP TIP: FMLA, ADA and Fitness for Duty Examinations
, July 21, 2014
When an employee comes back from Family and Medical Leave Act leave with a fitness-for-duty (FFD) certification from his health care provider, some employers still require the employee to undergo a separate FFD examination by the employer's own health care provider or employee health office before...

EEOC Issues Enforcement Guidance, Q&A, and Fact Sheet on Pregnancy Discrimination
Jonathan T. Hyman, July 19, 2014
If had any doubt that pregnancy discrimination is a hot-button issue at the EEOC, look no further than yesterday’s publication of three documents by the Agency on the issue:

Should You Block Social Media at Work?
Jonathan T. Hyman, July 19, 2014
One of my summer television addictions is NY Med, which follows surgeons around some of the New York metro area’s busiest hospitals. One this summer’s episodes focused on a man who had been hit by a subway train. An ER nurse Instagrammed a photo of the empty trauma room, along with the...

Time After Time: Temporal Proximity and Retaliation
Jonathan T. Hyman, July 15, 2014
Marla Montell reported an allegation of sexual harassment against her supervisor, Austin Day, to human resources at Diversified Clinical Services. The HR rep contacted Day almost immediately. The next day, Day called Montell and told her that she should resign or would be fired. Chose the former,...

Will Hobby Lobby Give Title VII Fits?
Jonathan T. Hyman, July 15, 2014
Yesterday, the Supreme Court decided Burwell v. Hobby Lobby Stores, holding that a closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act (which prohibits the federal government from taking any action...

What Does the ADA Say About Employee Medical Information and Social Media?
Jonathan T. Hyman, July 11, 2014
The ADA protects, as confidential, employee medical information obtained by an employer.

EEOC Transforms a $1.39 Bag of Chips into a $180,000 Settlement
Jonathan T. Hyman, July 10, 2014
Nearly three years ago, I reported on a disability-discrimination lawsuit filed by the EEOC against Walgreens. The agency had filed suit of behalf of a diabetic employee who, without permission, took a bag of chips off the shelf to stabilize her blood sugar level during a hypoglycemic attack....

How Many Pre-Employment Medical Exams Does The ADA Permit?
Jonathan T. Hyman, July 07, 2014
McDonald v. Webasto Roof Systems (6th Cir. 6/25/14) concerns the interpretation of the green-light, post-offer conditional medical examination. The question the case asks is how many post-offer, pre-employment medical examinations may an employer require of an individual? The answer is as many as...

The Supreme Court’s Opinion on Cell Phone Privacy Is a Must-Read for All Employers
Jonathan T. Hyman, July 02, 2014
It’s a rare day that I write a post of which the vast majority is a 900-word quote from a court opinion.

The United Colors of Harassment Claims
Jonathan T. Hyman, July 02, 2014
It’s difficult to compare settlements in different cases based on value. They involve different parties, lawyers, judges, and allegations. Yet, it strikes me that if one compares the offensiveness of the misconduct alleged in these two cases, number two seems a whole lot more egregious than...

There's No Such Thing as a Free Lunch, Unless You’re the NLRB
Jonathan T. Hyman, July 02, 2014
Let’s say you’re a popular Kansas City barbecue chain that provides employees the benefit of a free meal during each employee’s shift. Let’s say a labor organization, upset at your low wages, organizes a one-day strike in the hopes of “encouraging” you to raise...

Firing of County Employee Teaches Important Lesson about Use of Mobile Technology
Jonathan T. Hyman, June 23, 2014
We love our phones. We are an iPhone society. I’ve referred to the phenomenon as “iPhone-ification.” Do you know that there are more mobile phones than people in the United States? Moreover, 90% of American adults own mobile phones, and nearly 60% are “smart.”

A Rock-and-Roll Employment Lesson, via the Old 97’s
Jonathan T. Hyman, June 18, 2014
Last Thursday night, I took my daughter to see the Old 97’s. By way of backstory, Norah performed an Old 97’s song, The New Kid, during her first concert for School of Rock back in January. I tweeted the link to the video to the band’s lead singer, Rhett Miller, who was kind...

An Ode to Working Dads
Jonathan T. Hyman, June 18, 2014
I have a good dad. Some of my best memories of my dad of him involve covering the walls of our dining room with paper so that I could practice writing, or sitting down reading books or doing math problems. Growing up, the memories shift to coaching little league, swimming in the ocean, and waiting...

EEOC Cracks Down on Employer’s "English-only" Rule
Jonathan T. Hyman, June 18, 2014
The EEOC yesterday announced that it has filed a lawsuit against a Wisconsin metal and plastic products manufacturer, claiming that it fired a group of foreign employees because of their national origin. According to the lawsuit, each of the 10 fired employees received overall satisfactory ratings...

Equal Treatment in Workplace Misconduct Helps Avoid an Ugly Discrimination Claim
Jonathan T. Hyman, June 18, 2014
Matthew Caiazza worked as a nurse at Mercy Medical Center. He would often take smoke breaks with Jennifer Jones, a food services worker.

Hold the Onion(Head): What is a “Religion” under Title VII?
Jonathan T. Hyman, June 18, 2014
Have you heard the one about the company that fired employees who refused to worship an onion? This is not the start of a joke, but a real, live lawsuit filed by the EEOC.

U.S. Chamber of Commerce Challenges EEOC Over Its “Unreasonable” Enforcement Tactics
Jonathan T. Hyman, June 18, 2014
I’ve written before about federal courts taking the EEOC to task for its overly aggressive litigation tactics.

Why you Should be Paying your Interns
, May 30, 2014
Unpaid interns have been on the DOL’s hit list since 2010. I’ve warned employers that most unpaid internships have gone the way of the dodo, and you should be paying your interns at least the minimum wage, and overtime, for hours worked in excess of 40 in a week.

Apparently, An Employee Doesn’t Need to Sign a Noncompete for an Employer to Enforce it
, May 29, 2014
I’ve always thought that for an employer to enforce a non-competition agreement against an employee, the employee actually had to sign the agreement. Two recent cases, however, suggest otherwise.

NLRB Judge Gives Booby Prize to Hooters' Workplace Policies
, May 29, 2014
In Hooters of Ontario Mills, an NLRB Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal...

Two Cups, One Termination
, May 29, 2014
Cause for a termination is often in the eye of beholder. Or, to put it another way, what might seem trivial to one can be a big enough deal to another for a termination.

A Bird in the Hand? Court Refuses to Compel Lewd Picture in Harassment Case
Jonathan T. Hyman, May 22, 2014
Laverne Battle claimed that her supervisor at the District of Columbia Metro Police Department texted from his cell phone to her cell phone, a picture of him holding his penis is his left hand. To support her sexual harassment claim, battle sought to compel seeks to compel the supervisor to produce...

Dont' Be that Boss: Company Pays Big for Use of The N-Word
Jonathan T. Hyman, May 22, 2014
If you’re African-American, your boss (who happens to be the president’s son and part owner) calls you and other African-American employees a “n***er,” and places a handgun on his desk for intimidation whenever meeting with African-American employees, do you have a case for...

Should You Check Your Employee's Social Media Accounts?
Jonathan T. Hyman, May 22, 2014
Monday’s Wall Street Journal had a compelling counterpoint about whether employers should be checking their employees’ social media accounts. Nancy Flynn, the founder and executive director of the ePolicy Institute, presented the pro, while Lewis Maltby, the president of the National...

EEOC Continues Fight against Severance Agreements, While Employers Fight Back
Jonathan T. Hyman, May 13, 2014
Earlier this year, I reported on a groundbreaking lawsuit the EEOC filed against CVS challenging as retaliatory some garden-variety provisions in employee separation agreements.

How Flexible are our Modern Workplaces?
Jonathan T. Hyman, May 13, 2014
As I type, I’m 30,000 feet above Pennsylvania, flying to see my dad, who’s waiting in the hospital for surgery. As you read, i’m probably sitting somewhere on the campus of the Hosptial of the University of Pennsylvania. I share these facts not for well wishes, but because...

Potty Mouthed Employees
Jonathan T. Hyman, May 08, 2014
Most non-union employees are at-will, which means you can fire them for any reason, good, bad, or for no reason at all (as long as some other law, such as discrimination laws, doesn’t trump). So, if an employee has a potty mouth, you can fire her, right? Not so fast, says an unemployment...

No Good Comes From Asking Medical-Related Questions during Interviews
Jonathan T. Hyman, May 06, 2014
Sjöstrand v. The Ohio St. Univ. (6th Cir. 4/28/14) [pdf] is an ADA case, but not an employment case. It involves a graduate school applicant claiming that OSU denied her admission because of her Crohn’s disease. In support of her claim, Sjöstrand pointed to her admission interview,...

The NLRB Is Looking To Overturn Email Solicitation Rules
Jonathan T. Hyman, May 06, 2014
In Register Guard, the NLRB held that an employer’s solicitation or other communication policy can lawfully bar employees’ non-work related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under...

With Workplace Social Media, Don’t Be Like Nero
Jonathan T. Hyman, May 06, 2014
Legend tells us that Nero sat and played his fiddle while Rome, the capital of his empire, burned. Sadly, according to a recent survey, Social Media in the Workplace Around the World 3.0, many employers are taking the same approach with their employees’ use of social media.

Your Corporate Message against Discrimination Must Start At the Top
Jonathan T. Hyman, May 06, 2014
By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

No Good Comes From Asking Medical-Related Questions During Interviews
Jonathan T. Hyman, May 02, 2014
Sjöstrand v. The Ohio St. Univ. (6th Cir. 4/28/14) is an ADA case, but not an employment case. It involves a graduate school applicant claiming that OSU denied her admission because of her Crohn’s disease. In support of her claim, Sjöstrand pointed to her admission interview, during...

NLRB Judge Says Employee Cannot Require Its Employees to Disclaim Social Media Posts
Jonathan T. Hyman, April 30, 2014
The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.

Your Corporate Message Against Discrimination Must Start at the Top
Jonathan T. Hyman, April 30, 2014
By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

6th Circuit Recognizes Telecommuting as an ADA Reasonable Accommodation
Jonathan T. Hyman, April 25, 2014
In Core v. Champaign County Board of County Commissioners, the U.S. District Court for the Southern District of Ohio opined that telecommuting (i.e., work-from-home) might be an ADA reasonable accommodation under the right circumstances, but that case did not present those circumstances. The Core...

Revisiting the Misnamed and Misunderstood Term "Wage Theft"
Jonathan T. Hyman, April 25, 2014
Yesterday, on his always excellent Connecticut Employment Law Blog, Dan Schwartz wrote a post entitled, “Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means. Dan wrote:

When an Employee Can’t Return To Work after an FMLA Leave
Jonathan T. Hyman, April 23, 2014
The plaintiff in Demyanovich v. Cadon Plating & Coatings (6th Cir. Mar. 28, 2014) suffered from congestive heart failure. He returned from his latest FMLA leave in 2009 with a no-overtime medical restriction. The employer, however, ignored the restriction, kept assigning overtime hours, and...

Why You Need Employee-Invention and IP Agreements
Jonathan T. Hyman, April 22, 2014
Taco Bell is defending claims by two former interns that they invented the Doritos taco nearly 20 years ago. They now want to be paid part of its billions dollars in sales. (ABC News)

Would You Rather Hire A Liar Or A Criminal?
, April 22, 2014
According to a recent survey conducted by background-screening company EmployeeScreenIQ, resume lies are more of a deal breaker for employers than past crimes.

Hypothetical Violations Doom Employer Confidentiality Policy
Jonathan T. Hyman, April 16, 2014
A few months ago I posted on the NLRB’s veto of a workplace confidentiality policy. Late last month, the 5th Circuit court of appeals ruled on another employer confidentiality policy, and the results should trouble employers everywhere.

It's Illegal to Ask Employees to Give Up Overtime Payments
Jonathan T. Hyman, April 16, 2014
If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland...

6th Circuit Sends Strong Signal to EEOC in Affirming Dismissal of Systemic Lawsuit
Jonathan T. Hyman, April 14, 2014
Last January, a Cleveland federal-court judge dismissed a race discrimination lawsuit brought by the EEOC against Kaplan Higher Learning. In that case, the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. To support its...

Has Workplace Drug Testing Gone to Pot with Legalized Marijuana?
Jonathan T. Hyman, April 11, 2014
Late last year, I asked the following question: Can an employer fire an employee who tests positive for legally prescribed marijuana? It appears that employers are indeed struggling with this question. New Jersey transit is the latest employer to be sued as a result of an employee’s use of...

Differences of Opinion Show Why We Need ENDA
Jonathan T. Hyman, April 10, 2014
In response to last Tuesday’s post on an Ohio case refusing to protect “sexual orientation” under Ohio’s sex-discrimination laws, EEOC Commissioner (and Twitter friend) Chai Feldblum recommended that I check out a recent decision from the District of Columbia, Terveer v....

If You Don't Want Anti-Bullying Legislation, Give Me A “Hell Yeah!”
Jonathan T. Hyman, April 08, 2014
Bullying in the workplace isn’t illegal, unless it’s bullying because of some protected characteristic (sex, race, etc.). Yet, just because something is legal doesn’t mean it should be condoned.

It’s Okay to "Gossip" In the Workplace, As Long It’s not "Negative," Says the NLRB
Jonathan T. Hyman, April 08, 2014
Earlier this year, I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications.

Sexual-Orientation Discrimination Ban to Become Law
Jonathan T. Hyman, April 08, 2014
My apologies if the headline baited you in, but today is April Fools’ Day, and, no, neither Congress nor Ohio’s legislature is close to amending any workplace discrimination laws to include sexual orientation as a protected class.

Social-Cultural Discrimination Does Not Equal Race Discrimination
Jonathan T. Hyman, April 08, 2014
Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions, the answer is no.

It's Still Illegal Not to Hire Someone Because They Have HIV
Jonathan T. Hyman, April 01, 2014
Twenty years ago, Tom Hanks won the Best Actor Oscar for his portrayal of Andrew Beckett, a man with AIDS fired by his law firm because of his condition. Last week, the EEOC announced that it has filed suit against Maxim Healthcare Services, a Pittsburgh medical staffing company, for its refusal to...

What Ben Franklin Teaches Us About Employment Law (The #SCOTUS Edition)
Jonathan T. Hyman, April 01, 2014
Some people head to the beach for Spring Break. I head to Philadelphia. An extended school break for my kids provides a good opportunity to visit my family. Plus, we have had a German daughter in our house since August (a 10th grade exchange student), and we promised her that we’d show her...

Motorboating = $567k Harassment Verdict
, March 28, 2014
A Galveston, Texas, jury has awarded $567,000 in damages to a former deputy constable who claimed sexual harassment by his former boss. The catch is that the harasser is female and the victim is male.

Please, Please, Please ... Be Careful What You Email
, March 28, 2014
Darren Wyss claims that his former employer, Compact Industries, demoted him on the basis of his gender and replaced him with a female. Wyss’s immediate supervisor was Tracey Brown, one of the company’s owners, and the sister of Michael Brown, another owner. After Wyss’s demotion,...

The Wage-And-Hour Implications Of The Nlrb’s Northwestern Football Player Ruling
, March 28, 2014
By now you’ve likely heard that yesterday a regional director of the National Labor Relations Board ruled that Northwestern University’s scholarship athletes are “employees” of the university covered by, and entitled to organize under, the National Labor Relations Act. Labor...

What a Slick Union-Avoidance Campaign Looks Like
Jonathan T. Hyman, March 21, 2014
If you’re a $72 billion company that happens to be staunchly anti-union, and money is no object in the education of your employees about how and why the cons of a labor union will undermine the pros of your company and its culture, this is what you get.

Examining the Low Standard for Adverse Actions in Retaliation Claims
Jonathan T. Hyman, March 20, 2014
Mark Laster worked as a Public Safety Officer/Emergency Officer for the Kalamazoo Department of Public Safety for more than 23 years. After complaining to his superiors that the department was treating him differently because of his race, he alleged that he was denied training opportunities and...

Lactation at Work Requires Reasonableness on Both Sides
Jonathan T. Hyman, March 20, 2014
Both of my children were formula-fed. It wasn’t for lack of lactation effort. We (or, more accurately, she) tried to feed each naturally. My daughter’s birth followed 72 hours of awful labor, from which we were not sure my wife was going to make it (that’s a story for another...

A Call for the DOL to Fix What Is Wrong With Our Wage-And-Hour Laws
Jonathan T. Hyman, March 19, 2014
Last week, President Obama called upon the Secretary of Labor to “modernize and streamline the existing overtime regulations.” According to the President, the “regulations regarding exemptions from the Act’s overtime requirement, particularly for executive, administrative,...

EEOC Holds Public Meeting On Social Media In The Workplace #socialEEOC
, March 17, 2014
Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

Gender Equality Is Dead; Long Live Gender Equality!
Jonathan T. Hyman, March 11, 2014
I rarely write about active cases I’m handling. In fact, I can only think of one other time that I was mad enough to do so. Today marks time number two. Each involves a galling lack of professional courtesy.

Following Doctor’s Orders Helps Employer Win ADA Case
Jonathan T. Hyman, March 07, 2014
Cynthia Horn worked for Knight Facilities Management as a janitor. Sometime in 2010, she developed a sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day. When that limitation failed to abate Horn’s...

Read This Post Before You Access Your Employee’s Social Media Accounts
Jonathan T. Hyman, March 07, 2014
Susan Fredman Design Group employed Jill Maremont as its Director of Marketing, Public Relations, and E-Commerce. In that capacity, she used her own personal Twitter account and Facebook page to promote SFDG’s business. To keep track of the various social media campaigns she was conducting...

NLRB Looks to Expand Reach With Latest Enforcement Priorities
Jonathan T. Hyman, March 06, 2014
Late last month, the new NLRB General Counsel, Richard Griffin, published a memo (GC 14-01) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that...

When Are Preliminary and Postliminary Compensable? Supremes to Let Us Know (Maybe).
Jonathan T. Hyman, March 06, 2014
Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

Why We Put Plaintiffs To Their Proof
Jonathan T. Hyman, March 03, 2014
Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14), however, is much ado about nothing, but nevertheless reminds us of the importance of the process of litigation to the outcome of litigation.

Has Social Media Created Too Much Workplace Transparency?
Jonathan T. Hyman, February 28, 2014
I have two confessions to make: 1) I don’t read much anymore, at least not for pleasure. 2) I can’t do work on airplanes.

Mind Your Internal Emails to Avoid Discrimination Issues
Jonathan T. Hyman, February 26, 2014
Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a "sex-plus" theory of discrimination to save a plaintiff's race discrimination and sex discrimination claims from the summary-judgment scrap heap....

Is Obesity the Same as a Green Mohawk?
Jonathan T. Hyman, February 24, 2014
It's been a few months since I've written about the growing trend of plaintiffs trying to shoehorn obestity-discrimination claims under the Americans with Disabilities Act. At his Employer Handbook Blog, Eric Meyer brings us the story of Powell v. Gentiva Health Services, in which a 5' 3", 230...

Do You Know? OSHA Protects Employees from Retaliation for Reporting Injuries
Jonathan T. Hyman, February 21, 2014
Like many states, Ohio has a statute that protects workers from retaliation for filing a workers’ compensation claim. But that statute is not the only one that protects the rights of employees injured on the job. OSHA also protects employees from retaliation for reporting workplace injuries.

Can You Have A One-Person Reduction-In-Force?
Jonathan T. Hyman, February 20, 2014
Yesterday’s New York Daily News ran the following headline: “Long Island man, 76, sues company for age discrimination after ‘workforce reduction’ of one man.” The article suggests that there is something nefarious or underhanded about a layoff of one.

Is There Such a Think as Online Picket Lines? Not According to the NLRB
Jonathan T. Hyman, February 20, 2014
When is a picket line not a picket line? Apparently when the protests take place online, at least according to the NLRB’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14).

From the Archives: Wage-and-Hour Audits
, February 17, 2014
Today is Presidents’ Day, which means that many are not at work. I am not one of those many. I’m in the office today, preparing for a client’s wage-and-hour audit, which the Department of Labor will be conducting tomorrow.

EEOC Claims Retaliation over Garden-Variety Severance Terms
Jonathan T. Hyman, February 14, 2014
The EEOC announced that it has filed a lawsuit against CVS, claiming that a severance agreement it provided to three employees unlawfully restricted their rights to file discrimination charges or communicate and cooperate with the EEOC.

More on The EEOC’s Position on Retaliation in Severance Agreements: A Proposed Solution
Jonathan T. Hyman, February 14, 2014
Yesterday, I reported on a lawsuit the EEOC has filed, claiming that some fairly generic terms in an employee severance agreement constitute illegal retaliation. In EEOC v. CVS, the agency claims that an agreement that attempts to limit an employee’s communication with the EEOC unlawfully...

Another One Bites the Dust: NLRB Invalidates Confidentiality Policy
Jonathan T. Hyman, February 12, 2014
If I’ve said it once, I’ve said it a thousand times — employers cannot maintain policies that restrict their employees’ ability to talk about how much they earn.

Deterring The Wage-And-Hour Scofflaw
Jonathan T. Hyman, February 10, 2014
The New York Times reported late last week that a Manhattan Domino’s Pizza franchisee has settled a wage-and-hour class action lawsuit for $1.28 million.

I (Don’t) “Like” This Protected Concerted Activity
Jonathan T. Hyman, February 10, 2014
Last October, in Bland v. Roberts, the 4th Circuit held that a Facebook “like” qualifies as speech protected by the First Amendment. As we know, however, the First Amendment does not apply to private workplaces, in which employees do not enjoy constitutional free speech rights....

Is Regular Attendance an Essential Job Function When an Employee Asks for Time Off from Work?
Jonathan T. Hyman, February 10, 2014
I’ve written before about the need for employers to handle with care an employee’s request for unpaid time off as a reasonable accommodation under the ADA. And, I’ve also written about the hard line the EEOC has taken against hard-capped leave of absence policies.

Proposed Ambush Election Rules Offer the Best Reason to Be Proactive About Union Avoidance
Jonathan T. Hyman, February 10, 2014
Last week I suggested that a pro-union NLRB has emboldened labor unions into more aggressive organizing efforts. You need not look any further than yesterday’s news that the NLRB has reissued its ambush-election rules.

A Lesson on Union Avoidance
Jonathan T. Hyman, February 04, 2014
Last week, the Department of Labor’s Bureau of Labor Statistics published its annual report of union membership. Private-sector union membership remains steady, at approximately 6.7 percent, which, as Cleveland.com points out, is a marginal increase from the prior year. Nevertheless, and...

Are Temporary Impairments ADA-Protected Disabilities? You Bet.
Jonathan T. Hyman, February 04, 2014
When Congress amended the ADA in 2009, it’s goal was to bring the statute back to its original intent — the protection of the legitimately disabled from suffering discrimination in the workplace.

Eliminating Mad-Men Workplace Policies #SOTU
Jonathan T. Hyman, February 04, 2014
During Tuesday’s State of the Union Address, President Obama handed down the following edict:

High Praise for the Employer Bill of Rights
Jonathan T. Hyman, January 30, 2014
It’s always nice for someone to post a five-star review of your book on Amazon, but it’s even nicer when one of the most well-respected and insightful HR bloggers writes an entire column singing your book’s praises.

When is 1,250 Not 1,250? Hours Worked Versus Hours Paid for FMLA Eligibility
Jonathan T. Hyman, January 30, 2014
For an employee to be eligible to take leave under the FMLA, the employee must have been employed for at least 12 months, and have at least 1,250 “hours of service” during the previous 12-month period.

The Workplace Ethics of Class-Segregated Bathrooms—the Results
, January 27, 2014
Two weeks ago I posed this question: Is it acceptable for a company to prohibit warehouse workers from using office bathrooms?

Why I Don't Like Most Non-Disparagement Clauses (And 3 Tips to Fix Them)
Jonathan T. Hyman, January 22, 2014
Will Blythe recently penned an op-ed in the New York Times entitled, Fired? Speak No Evil. In this piece, Mr. Blythe chronicled his recent job loss, and why he refused to sign a separation agreement that included a non-disparagement clause.

Separation of Protected Activity and Discipline Can Protect Employers from Retaliation Claims
Jonathan T. Hyman, January 17, 2014
Can an employee succeed on a retaliation claim if the decision maker did not know about the alleged protected activity at the time the employer decided to terminate? The answer, according to McElroy v. Sands Casino (E.D. Pa. 1/9/14), is no.

You Can’t Always Get What You Want ... But Even When You Do It’s An “Adverse Employment Action”
Jonathan T. Hyman, January 15, 2014
Suppose an employee applies for a transfer to an open position. The company decides to hire an external candidate and passes on transferring the employee. Yet, when the same position again becomes vacant nine months later, the company involuntarily transfers that same employee into the position. Is...

Cursing as Religious Harassment—Context Matters
Jonathan T. Hyman, January 14, 2014
With The year was 1985. I was 12 years and spent the summer at overnight camp. When you spend 8 weeks alone in the woods with a dozen other 12-year-old boys, you curse, a lot. After 8 weeks of “f-this” and “f-that,” it shouldn’t have surprised my parents when, at the...

You Might Be A Defendant If ... You Ask Applicants For A Family Medical History
Jonathan T. Hyman, January 14, 2014
According to this press release, a New York nursing and rehabilitation center will pay $370,000 to settle a genetic discrimination lawsuit filed by the EEOC. The EEOC claimed that the employer asked job applicants for a family medical history as part of its post-offer, pre-employment medical exams.

Blackballing as Retaliation
Jonathan T. Hyman, January 13, 2014
Do you remember Diana Wang, the unpaid intern who sued Hearst Corporation, claiming that the publisher violated that Fair Labor Standard Act by not paying her? Two years later, she claims that she cannot find work as a result of her lawsuit.

A Weighty Lesson on Pregnancy Discrimination
Jonathan T. Hyman, January 08, 2014
It’s the first full week of January, which means that lots of people are attempting to execute on their New Year’s resolutions. Many of those resolutions will focus on weight loss. What if your company does the same, and decides, for wellness or other reasons, not to hire anyone over a...

Tread Lightly if Banning Workplace Gossip, Says NLRB Judge
, January 08, 2014
I recently came across a blog post that answered the question of how to deal with workplace gossip. One solution you might want to avoid is a policy banning it outright, at least according to the recent opinion of an NLRB Administrative Law Judge in Laurus Technical Institute.

It’s Time to Update Your Severe-Weather Policy
Jonathan T. Hyman, January 07, 2014
How bad is the weather going to be in Cleveland today? It’s so cold that even the Horseshoe Casino is closed. You can’t even get hot at the tables.

Lessons from Children’s Lit: A New Year’s Resolution
Jonathan T. Hyman, January 07, 2014
Among the toys and the clothes, my kids always receive books for Christmas. This year, the books included The Day the Crayons Quit. This book tells the story of a boy’s box of crayons, and the colors inside that have quit their jobs, each for a different reason. Blue no longer wants to be...

Accuracy Counts in Drafting Job Descriptions (A Lesson on ADA Reasonable Accommodations)
Jonathan T. Hyman, December 20, 2013
Do you have written job descriptions for all of your employees? Henschel v. Clare County Road Commission (6th Cir. 12/13/13) illustrates that if you’re going to claim that a job function is essential, you should probably include it in a written job description.

Does the ADA Cover Organ Donors?
Jonathan T. Hyman, December 19, 2013
Every now and again I come across a case that offends my sensibilities. Rope v. Auto-Chlor Sys. of Wash., Inc. (Cal. Ct. App. 10/16/13) is one of those cases.

FAMILY Act Would Provide Paid Leave for Employees
Jonathan T. Hyman, December 19, 2013
Tony Soprano once said, “Family: they’re the only ones you can depend on.” If Congressional Democrats get their wish, American workers will be able to depend on the FAMILY Act to provide up to 12 weeks of paid leave each year for the birth or adoption of a new child, the serious...

Is Infertility Fertile Grounds for Disability Discrimination Claims?
Jonathan T. Hyman, December 17, 2013
I’ve written before about employers getting themselves in trouble for pregnancy discrimination for firing employees while undergoing fertility treatments. Last week, the EEOC announced the settlement of case involving a different kind of “infertility” discrimination-the Americans...

If you’re taking an Employee’s Deposition, Don’t Charge Them for A Day off Work
Jonathan T. Hyman, December 13, 2013
An employee takes a day off work to attend his own deposition, which you are taking in defense of the employee’s discrimination lawsuit. Do you:

Medical Marijuana and the Americans with Disabilities Act
Jonathan T. Hyman, December 13, 2013
Bailey v. Real Time Staffing Servs. (6th Cir. 10/29/13) involves an employee fired for a positive random drug test for marijuana. Unknown to the employer, Bailey was HIV positive and taking prescribed medication which could result in a false positive for marijuana. The court sided with the employer...

5th Circuit Upholds Legality of Class Action Arbitration Waivers
Jonathan T. Hyman, December 12, 2013
D.R. Horton v. NLRB concerns whether, under the National Labor Relations Act, an employer can enforce against its employees an arbitration agreement under which the employees agree to arbitrate all employment claims, but waive their right to do so as a class or collective action in any forum.

Is Social Media a Valid Vehicle for Harassment Complaints?
Jonathan T. Hyman, December 12, 2013
A nuclear-medicine technician posted the following three items on her Facebook wall:

When an Extended Leave Of Absence Is NOT A Reasonable Accommodation
Jonathan T. Hyman, December 12, 2013
Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the EEOC says that hard-capped leave of absence policies violate the ADA. For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave,...

Don’t Be a Jughead by Thinking That White Men Aren’t a Protected Class
Jonathan T. Hyman, December 05, 2013
A group of male employees of Archie Comics filed a gender discrimination lawsuit against their employer. They allege, among other things, that Nancy Silberkleit, the company’s co-CEO, constantly referred to them by their male anatomy instead of by name.

Sometimes, Employees Get What They Deserve
Jonathan T. Hyman, December 03, 2013
At 10:35 Saturday morning, I was stopped at an intersection on my way home from dropping my daughter off at her band rehearsal. From the passenger seat of the car stopped next to me in the left-turn lane emerged a guy, mid-twenties, clad in Ohio State gear and holding a beer. After he slid out of...

Social Media Background Checks as Discrimination
Jonathan T. Hyman, November 28, 2013
I’ve long argued that employers take a risk when they use social media to vet job candidates without putting in place sufficient controls to prevent the disclosure of protected EEO information. Now, we have the empirical evidence to back me up.