Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

The on-air shootings at WDBJ-TV: When bad things happen to good employees

Posted in Background Checks, Violence

Alison and Adam, rest in peace.

What could WDBJ7-TV have done to prevent Wednesday morning’s tragic on-air murders? Unfortunately, probably not a thing.

I’m a second-guesser, and I have spent much of the last 48 hours racking my brain about what the CBS affiliate in Roanoke, Virginia, could have done differently. Based on what I’ve been able to discern, the station did everything right.

(I see that Eric Meyer of The Employer Handbook agrees, more or less.)

Here is a rough recreation of my own internal dialogue:

That lawsuit against the station in Tallahassee should have been a big red flag. Yes, we know that Vester Lee Flanagan, II, aka Bryce Williams, filed a discrimination lawsuit (reportedly settled) against his previous employer, a television station in Tallahassee. That was in the year 2000. But Mr. Flanagan wasn’t hired at WDBJ until 2012. Even if WDBJ had done a civil records check before hiring Mr. Flanagan (not likely for a TV job – at most, all they would have done was a criminal check, which it appears would have been clean), they probably wouldn’t have looked back more than 10 years and therefore would have missed the lawsuit.

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4 thoughts on the Ashley Madison hack

Posted in Harassment, Social media

Four quick thoughts on the Ashley Madison hack:

1. Should you post anything on the internet that you wouldn’t want to see on the front page of the New York Times? “No” used to be standard advice, but that isn’t practical any more. I do online banking, but that doesn’t mean I want my financial information all over the internet. Nor my credit card information, which is stored with various online retailers who shall remain nameless but I wrote about one of my favorites last week. It’s unrealistic to expect people to go “all-analog” at this point in our technological development.

2. That having been said, a credit card can be cancelled, and a bank account can be closed and reopened elsewhere. But once your spouse or significant other finds out you’ve been cheating, there isn’t a whole lot you can do to remedy that except grovel and beg for mercy. (Or claim you were hacked. Yeah, that’s the ticket.)

3. If an employer were to call for advice about an employee who was “exposed” in the hack, would I recommend termination? Not unless the employee is in a position in which Continue Reading

Can employees trust Human Resources?

Posted in Corporate Culture

Are Human Resources representatives advocates for employees, or shills for the corporate bigwigs?


“Come share your workplace concerns with me,” said the spider to the fly.

I suppose you’ve been following the story about how Amazon (1) is the worst place in the world to work, (2) no it isn’t, (3) anyway, the New York Times didn’t do good research and based its story on too many anecdotes, and (4) yes, it did do good research, and anyway how are you supposed to do a story like that without anecdotes?

That controversy is not what I’m writing about today – at least, not directly.

After the initial NYT story ran, saying the workplace at Amazon is cutthroat — still uses “forced rankings” and even encourages employees to secretly bad-mouth each other to their bosses, has employees who break down in tears on a daily basis, and put one woman on a Performance Improvement Plan the day after she returned to work after her child was stillborn, among other horrors — CEO Jeff Bezos sent a communication to employees. He said that this did not describe the Amazon he knew, and he told employees to come to him or to Human Resources if they experienced anything like it.

Now, here’s the part that I found interesting: the reaction in the internet comment boxes to Mr. Bezos’ invitation to employees to go to HR. Pretty much, the commenters said “Everybody knows HR is in the can for the corporate bigwigs,” “HR doesn’t give a hoot about the employees,” “If I were having a problem at work, the last place I would go is HR.” OK, those are not actual quotes, but here are a few real ones, and be sure to look at the upvotes they got (all from Daily Mail Online):

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ABA Blawg 100: Only a few days left to vote!

Posted in Uncategorized

And then I’ll shut up. (Until next year.)

Voting for the ABA Blawg 100 will close at 11:59 p.m. Central Time Sunday, August 16. If you have not already done so and are inclined, we would very much appreciate your going over and giving Employment & Labor Insider your vote. You don’t have to be a lawyer, and it won’t take but a minute. Thank you!

Is protected activity part of your job? You may still be protected.

Posted in Retaliation
Woman Indignant.flickrCC.DavidJohns

“Doing your job? The NERVE!”

If you try to prevent or end workplace discrimination as part of your job, is it legal for your employer retaliate against you?

Inquiring HR professionals, in-house lawyers, and counselors want to know!

The U.S. Court of Appeals for the Third Fourth Circuit says no – Title VII’s anti-retaliation protections apply to you, too.

In a very significant decision that all employers should read, a panel of Third Circuit judges sitting by designation for the Fourth Circuit*, said that Title VII protects even “compliance” employees who may be “opposing” discrimination as part of their regular job duties.

*According to the decision, every Fourth Circuit judge had to be recused from hearing the case. I assume this means that the defendants provide health care for Fourth Circuit judges and employees. The Fourth Circuit hears appeals from federal courts in Maryland, the Carolinas, Virginia, and West Virginia.

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Seems like this should be an excused absence.

Posted in Corporate Culture

According to the New York Post, the City of New York fired an employee for missing too much work. Turns out that he had a very good reason for his no-call/no-show: he was dead.

Geoffrey Tolliver, a Medicaid eligibility specialist for the City, went out on a medical leave of absence for cancer in November 2013, and he passed away in December 2014. The City recently moved to terminate his employment because he hadn’t been to work in 18 months. Mr. Tolliver (understandably) did not show up for the hearing, so an administrative law judge approved the termination.

The City says it had been trying to contact Mr. Tolliver for more than a year with no response. Now that it is aware of his death, the City says it will not take any further action.

A friend of Mr. Tolliver was quoted as saying, “He deserves better. The agency itself should have known.”

Indeed. RIP, Mr. Tolliver.

Robin’s quickie guide to the U.S. Courts of Appeal

Posted in Reference

The U.S. Courts of Appeal hear appeals from federal district courts in their assigned states, or as otherwise specified below:

First Circuit: Maine, Massachusetts, New Hampshire, and Rhode Island, and Puerto Rico.

Second Circuit: Connecticut, New York, and Vermont.

Third Circuit: Delaware, New Jersey, and Pennsylvania.

Fourth Circuit: Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

Fifth Circuit: Louisiana, Mississippi, and Texas.

Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee.

Seventh Circuit: Illinois, Indiana, and Wisconsin.

Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

Ninth Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington (state), Guam and the Northern Mariana Islands.

Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

Eleventh Circuit: Alabama, Florida, and Georgia.

District of Columbia Circuit: (Hmm . . .what do you think?)

Federal Circuit: (Handles patent cases, and other specialized cases that we don’t need to worry about on this blog.)

ABA Blawg 100: Please vote!

Posted in Uncategorized

It’s that time of year! The American Bar Association is accepting nominations for the 2015 ABA Blawg 100. Here are seven reasons why you should vote for Employment & Labor Insider, if you are so inclined . . .

I Voted.flickr.TroyeOwensCC

“I Voted (for Employment & Labor Insider)!”

*Like Donald Trump, we tell it like it is, but we have better hair.

*Like Hillary Clinton, we use email, but all of our blog posts are stored on approved servers.

*Like Jeb Bush, we’re kinder and gentler, but we won’t beat you up if you don’t like our dads.

*Like Scott Walker, we shop at Kohl’s, but we still know how to party.

*Like Rick Perry, we (1) wear hipster glasses and (2) have a heart, but our blog is ready for prime time.

*Like Chris Christie, we’re blunt, but we’ve never caused a traffic jam unless it was an accident. Literally.

*Like Carly Fiorina, we are surprisingly good!, but we’ve never been on a “worst CEO” list.

(Just kidding – no offense to the candidates, and no political endorsements, intended.)

You don’t have to be a lawyer to make a nomination. Just go to the page here and make your nomination, along with a short statement explaining why you think your nominee should win. We very much appreciate the support you’ve shown to Employment & Labor Insider in the past and would appreciate your vote again this year if you are so inclined. The deadline to submit nominations is Sunday, August 16. Thank you, as always!

Image Credit: From flickr, Creative Commons license, by Troye Owens.

5 ways employers can spend a lot less time in court

Posted in Corporate Culture, Discrimination, Retaliation, Wage-Hour

“An apple a day keeps the doctor lawyer away.” Here are five easy and inexpensive things that employers can do to minimize their risk of being sued and maximize their chances of victory if they do get sued. None of these involve major expense, or even the use of lawyers.


“These tips will take away your pain.”

1. Err on the side of treating your workers as (a) non-exempt and (b) “employees.” Let this be your default position. Don’t forget that salaried workers, such as clerical employees, may be non-exempt, too. And, as we discussed recently, it’s legally risky to tread too close to the “independent contractor/employee” line.

A good general rule is that if you do want to classify someone in a gray area as FLSA-exempt or as an independent contractor, consult with an employment lawyer first. Otherwise, assume that the worker is a non-exempt employee. (Of course, you’ll also want to make sure that your non-exempt employees post their time accurately and aren’t being encouraged to work off the clock.)

2.  Avoid creating the impression that you play favorites. Favoritism isn’t illegal, but it often leads to claims of discrimination, which is illegal.

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