I don’t even know what to say about today’s nominee for 2019’s worst employer, so I’ll just let Newsweek do the heavy lifting.
A Pakistani electrician is filing charges against a client who refused to pay their bill and instead unleashed a pet lion on him.
The Khaleej Times reports that Mohammad Rafique was hired to do a project for the Sada-e-Imam Hussain congregation hall in Lahore. After he finished the job, Rafique went to caretaker Ali Raza for payment.
He did not have the money on hand, so Rafique agreed to come back another day. However, after being put off multiple times, the electrician became frustrated and confronted Raza on September 9.
Instead of paying his bill, Raza unleashed the lion that he kept as a pet. The big cat attacked Rafique, biting and pawing at him as he was helpless to resist.
Neither Raza or three other men on the scene made any effort to help him, Rafique alleges. He says that it was only when bystanders heard his screams and cries and came to investigate that Raza got the lion under control.
According to Gulf News, police say the lion “wounded his face and arm.”
Astoundingly, Rafique returned to try again to collect, this time for his back pay and his injuries. When Raza stonewalled, Rafique eventually went to the police. Raza is now in custody, charged with “voluntarily causing hurt by dangerous weapons or means.”
I’ve reported on a lot of employers doing some truly awful things. But releasing a lion to attack someone instead of paying them? That is flat out horrendous. And a worthy international nominee for the Worst Employer of 2019.
I once made the mistake of watching an episode of Orange is the New Black on an airplane.
The guy sitting behind was very uncomfortably enjoying the show along with me, and I shut it down.
Which brings me to Sims v. Met Council, a case in which an employee claimed her co-workers’ choice of television shows in the break room created a hostile work environment.
The show at issue is “Luke Cage,” which included some brief nudity. At the plaintiff’s request (and a brief argument) her co-workers changed shows. This incident repeated again later that day, with the co-workers again changing shows at the plaintiff’s request. It was undisputed that the show in question contained two scenes with nudity, each lasting less than a minute.
Stephanie Sims reported the incident to management, which assured her that the break-room television would no longer be able to connect to steaming services. Management also counseled the offending employees on the employer’s respectful workplace policies and its prohibition against retaliation.
The district court had little difficulty dismissing Sims’ hostile work environment claim.
First, her exposure to two brief scenes of nudity on a television in the drivers’ lounge cannot reasonably be perceived as hostile or abusive. … Considering all of the circumstances in the light most favorable to Sims, … she was simply not subject to severe or pervasive harassment.
And even if the brief incidents at issue here could somehow arise to objectively serious or pervasive harassment, Sims’s claim fails because there is no indication that she was subject to something to which male drivers were not exposed. The TV was on for all drivers, male and female, to see. The brief nude scenes were not directed at Sims because she was a female. Poor taste does not amount to prohibited sexual harassment.
And finally, … a Title VII plaintiff must also establish that her employer failed to take prompt remedial action when informed of the allegedly harassing behavior. Sims cannot make this showing here. The evidence, in fact, demonstrates the opposite: to a person, Sims’s managers responded to her complaints, attempted to comfort her, and took immediate action.
One employee’s television show is another’s harassment. And while this court almost certainly correctly concluded that a minute of nudity on a screen does not rise to the level of a hostile work environment, it’s nevertheless not a bad idea to take a stand against all nudity in the workplace so that you don’t end up in court making these arguments.
If you’re a health care facility whose employees erect a “wall of shame” of disabled patients, and then you drag your feet when an employee, who was also a patient, reports the misconduct, you might be the worst employer of 2019. From the Bangor (Maine) Daily News:
Employees at St. Mary’s Regional Medical Center in Lewiston created a “wall of shame” where they displayed confidential medical records of patients with disabilities detailing issues with their genitalia and bodily functions, according to an investigation by the Maine Human Rights Commission that found the exhibit had contributed to a hostile work environment.
In addition, at least two employees looked at the private medical records of a fellow coworker, MyKayla McCann, whom the hospital had previously treated. She ultimately reported her suspicions about their actions, in addition to the wall of shame, to the hospital’s administration. When she did, it took three to four months for the hospital to remove the display, investigate and punish her coworkers, according to the investigation. …
A human rights commission investigator found there are reasonable grounds to believe that St. Mary’s hospital discriminated against McCann, who is a member of a protected class because she has a disability, when it subjected her to a hostile environment created by her coworkers’ conduct. …
McCann discovered the “shame wall” on the inside of a cabinet door on her first day of work as a laboratory technician assistant at St. Mary’s in June 2015. It had been labeled a “wall of fame,” with the word “fame” crossed out and replaced by “shame.” Portions of medical records had been cut and taped to the door. They “included information detailing patients’ sexual activity, genital dysfunction, bowel movements, bodily odors, and other personal maladies,” according to the investigator’s report.
McCann also provided pictures of the wall in her complaint. In one place, someone had attached strips of paper with diagnoses on them: “cramps/bloated/things to do w/intercourse,” stated one. “Drooping eyelids,” “butt wounds,” “unable to insert tampon,” “sour smell of vagina with occasional itching,” stated others.
My most recent Workforce print feature story is about mental health parity, and that’s one of the topics I love writing about as a benefits reporter: the need for quality, accessible, affordable mental health coverage.
The argument is that even though ideas or theories in psychiatry have prevailed in certain moments of history, all of them have been proven inadequate or outright wrong. And we’re still uncertain about both the cause of mental illness and why treatments work on some people but not others.
This sounds cynical, but I love a book that rationally explores the highs and lows of a scientific goal (in this case, to pin down the cause of mental illness). This isn’t discouraging as much as it is proof that people will constantly try to progress their understanding of the world in order to help people with a disorder. It’s more promising to me to see people admit their miscalculations and be determined to move forward than to see people stubbornly hold on to ideas from the past.
There are a few reasons I want to write about this book. The history of mental health treatment and theory is simultaneously fascinating, inspiring and upsetting. Especially in this context, history gives us many examples of how some of the mental health trends we’re now seeing in the workplace may not be exactly new.
I’ve gotten press releases about how people are more depressed or anxious now than ever before — especially millennials (or whatever young generation is being picked apart at the moment). I’ve spoken to people about how prevalent mental illness is and how that has changed over time. I’ve always been skeptical about the idea that it’s more common than in the past. My theory is that it’s more talked about now, more diagnosed now and less stigmatized now, and so the numbers just seem higher. (Feel free to argue against me on this, of course!)
What interested me about “Mind Fixers” was the section about the Cold War Era and how it was seen as the “Age of Anxiety” at the time. Many people relied on the “minor tranquilizer” Miltown, a predecessor of Valium, to deal with that anxiety. Meanwhile, in the 1980s depression became “the common cold of psychiatry.”
Comments like this make me wonder how current trends compared to other periods of history. This isn’t to minimize the impact that mental illness has on people and communities in the present. I bring this up so that we don’t talk about the history of mental health in a way that romanticizes the past. People in the 1950s, the 1800s, and before that had mental disorders, too. The treatments just weren’t as advanced.
According to the National Institute of Health and the Centers for Disease Control & Prevention, 41.2 percent of adults with a mental illness have received mental health services. And, more importantly, this statistic is very gendered if you dissect the data further. While 47.6 percent of women have received this type of health care, only 34.8 percent of men have.
That’s a big gap. Why don’t men get mental health care as much?
It was “associated with women and weakness” and men did not receive this label. Fast forward to the 1970s, when people were talking about a new trendy topic called “stress.” It was thought that women were twice as likely to experience stress and depression than men.
This is just a snapshot. Still, it shows how deep these roots are that may tell men that they’re weak if they admit certain things.
Finally, “Mind Fixers” mentioned the unwillingness of insurance companies to cover psychiatric services in 1970s. Lack of benefits coverage of behavioral health is something that even today — after the passage of the Mental Health Parity and Addiction Equity Act in 2008 — is still sometimes an issue.
According to “Workforce Attitudes Toward Behavioral Health,” a February 2019 survey from behavioral health company Ginger, 35 percent of the 1,214 U.S. employees surveyed reported that they had to pay directly for behavioral health services their benefits didn’t cover. Further, 85 percent of people said that behavioral health benefits are important when evaluating a job, and 81 percent of people said they face barriers in accessing behavioral health care. The most common barrier (28 percent) was that providers aren’t available in their benefits plan.
I’d strongly recommend this book to anyone interested in the science behind mental health. It brings up a lot of interesting talking points like, How much has stigma improved in the past 200 years, and where is there still room for improvement? Which issues still exist that caused people problems all those years ago as well?
While this isn’t a book about the workplace, you’ll read about certain historical trends and movements that sound a lot like some of the “innovative” solutions you’re hearing about now. Maybe you’ll learn a couple lessons from history.
For lack of more artful description, Ohio’s employment discrimination law is an awful mess.
Among other problems, it exposes employers to claims for six(!) years; contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines); renders managers and supervisors personally liable for statutory discrimination; omits any filing prerequisites with the state’s civil rights agency; and contains no affirmative defenses for an employer’s good faith efforts to stop workplace harassment.
There have been several prior attempts to fix this law and harmonize it with its federal counterparts. All have died on the legislative vine.
Welcome House Bill 352 [pdf], introduced on October 1. It’s yet another business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.
Among its key reforms, H.B. 352:
Creates a uniform two-year statute of limitations for all employment discrimination claims.
Unites the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
Eliminates individual statutory liability for managers and supervisors.
Requires individuals file an administrative charge of discrimination with the Ohio Civil Rights Commission as a prerequisite to filing a discrimination lawsuit in court.
Prioritizes conciliation for all charges filed with the OCRC, so that all but the most difficult of cases can be resolved efficiently and cost-effectively.
Establishes an affirmative defense to certain hostile work environment sexual harassment claims, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm.
This bill presents a tangible opportunity to fix a very broken law. Ohio’s current employment discrimination statute is so different from both its federal counterpart and the similar laws of other states that it places Ohio at a competitive business disadvantage. By paralleling federal employment discrimination statutes, H.B. 352 restores balance and predictability for Ohio employers, while, at the same time, preserving the crucial right of employees to be free from discrimination in the workplace.
As opponents to these reforms have argued in the past, we can expect to hear that the elimination of individual liability protects sexual harassers. Nothing could be further from the truth. The legislation leaves intact all common-law remedies employees have if they are subjected to predatory behavior in the workplace—assault, battery, intentional infliction of emotional distress, and invasion of privacy—along with the possibility criminal sanctions for the most egregious of misconduct. H.B. 352 merely brings Ohio in line with federal law and the law of almost every other state on this issue. It also harmonizes Ohio law on this issue, as the Ohio Supreme Court has already eliminated individual supervisor and manager liability for public officials.
Now comes the hard part—getting this bill passed into law. If you believe H.B. 352 presents necessary reforms of a broken system, call or email your state representative and urge him or her to support this bill. Passing H.B. 352 is a battle worth fighting for Ohio’s businesses.
An employee tells you he might need to leave work on a moment’s notice to rush home to care for his disabled daughter (born with a severe neurological disorder, Rett Syndrome, which affects the ability to speak, walk, breathe, and eat, among other things).
Do you?
a) Tell him he can’t leave work immediately after his shifts to care for his daughter because he’s expected to remain on site in case of an emergency.
(b) Deny him a raise, telling him, “Your problems at home are not the company’s problems.”
(c) The day after his daughter suffered a near-fatal seizure and was rushed to the hospital, demote him from his position as an Operator, where his responsibilities included running controls on trucks, to a Laborer, where his chief responsibility involved shoveling sewer systems.
(d) Refuse to excuse the employee from overtime so that he can visit his daughter in the hospital.(e) On the employee’s first day back at work after a two and half week absence while his daughter was hospitalized, you send him home for being 15 minutes late, and subsequently fire him.
(f) All of the above.
If you chose (f), you might be the Worst Employer of 2019.
A German court recently ruled that a hangover qualifies as an “illness.”
Which got me thinking … are hangovers the next frontier of your FMLA headaches?
Thankfully, the answer to this question is almost certainly “no.”
But it’s worth reviewing the FMLA’s definition of “serious health condition” to see how I reach that conclusion.
The FMLA defines a “serious health condition entitling an employee to FMLA leave” as “an illness, injury, impairment or physical or mental condition that involves inpatient care …or continuing treatment by a health care provider.”
“Inpatient care” means “an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity … or any subsequent treatment in connection with such inpatient care.”
“Incapacity” means an “inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom”
“Continuing treatment by a health care provider” means “a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves” either “treatment two or more times, within 30 days of the first day of incapacity by a health care provider,” or “treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.”
It’s difficult to imagine a hangover meeting any of these criteria. No hangover should ever require an overnight stay, continuing treatment of three or more days, or a regimen of supervised continuing treatment, even if an employee feels so ill that he or she cannot work or perform other regular daily activities as a result.
HR folks and leave administrators, rest easy knowing that you will not have to grant FMLA to your hungover employees.
What rights do you have to ban union organizers from your property?
A lot. Your property is your property.
What if, however, you allow your employee’s daughter’s Girl Scout troop to set up a table outside and sell cookies? Have you just opened yourself to an argument that allowing cookie sales unlawfully discriminates against the banned union organizers?
Historically, yes, but currently, no. Or at least not under the NLRB’s most recent pronouncement on the issue of employer property rights, in Kroger Mid-Atlantic.
To establish that a denial of access to nonemployee union agents violated the Act …, the General Counsel must prove that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.
Since the Girl Scouts (or the Salvation Army, or the American Cancer Society, or any other charitable, civic, or commercial activity) is nowhere near “similar in nature” to union organizing activities, an employer should be safe permitting the former while banning the latter.
Warning: This month’s column is not for everyone. If, however, you are offended by what I am about to say, then this is specifically for you.
In August, the Department of Labor’s Office of Federal Contract Compliance Programs, the federal agency that regulates and governs federal contractors and subcontractors, proposed regulations to clarify the scope and application of the religious exemption contained in section 204(c) of Executive Order 11246.
By way of background, Executive Order 11246, signed by President Lyndon B. Johnson in September 1965, “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” It’s been amended over the years, including its 2014 addition of LGBTQ protections to the list of prohibited discrimination.
Section 204(c) specifically exempts from coverage any “government contractor or subcontractor that is a religious corporation, association, educational institution, or society.”
The Trump administration seeks to expand section 204(c) to permit religious organizations with federal contracts to “make employment decisions consistent with their sincerely held religious tenets and beliefs without fear of sanction by the federal government.”
It makes clear that religious organizations can discriminate because of religion, and that religious organizations can require employees’ behavior to meet the organization’s religious rules.
What has people, including me, up in arms about this rule is its proposed change to what qualifies as a “religious organization.” The EEOC has long taken the position that for-profit companies cannot qualify as “religious organizations.” This proposal deviates from that long-standing rule for purposes of the OFCCP. Indeed, according to two senior Labor Department officials, the exemption would apply to “closely held companies acting in accordance with an owner’s religious beliefs.”
In other words, if someone organizes a closely held business for a religious “purpose” and holds itself out to the public as such, it would be exempt from the OFCCP’s anti-discrimination provisions if it operates its business consistent with its religious purpose.
What would this change mean practically? As the American Civil Liberties Union tweeted, “The Department of Labor just proposed a rule that aims to let government contractors fire workers who are LGBTQ, or who are pregnant and unmarried, based on the employers’ religious views.”
This is not “religious freedom.” It’s government-sanctioned discrimination. And it’s just plain wrong.
Private businesses can’t hold religious beliefs. Extending to them these protections based on their owners’ religious beliefs is dangerous. And scary. And abhorrent. We should all be troubled by a rule that permits an employer to opt out of an employment law because of a religious belief.
Religious freedom as an opt-out from the law is a dangerous construct. Our Constitution guarantees freedom of religion. We irreparably damage this important principle when we permit a private business, under the guise of religious freedom, to opt-out, without penalty, from an employment law with which it disagrees or finds offensive.
If you stand with me, and against government-sanctioned discrimination of any kind and in any form, write or call your senator and congressperson and tell them that this proposed rule cannot stand. That as a nation we are better than this. That all private businesses should be held to the same non-discriminatory obligations, regardless of the religious beliefs of their owners.
And, don’t forget about the comment period required by the rule-making process for any proposed regulations. The public gets to chime in, and everyone who opposes this rule should do so.
To conclude, I’ll make this as clear as possible.
Racism is wrong.
Sexism is wrong.
Homophobia is wrong.
If you disagree, you’re a bigot, period.
And, if you hide behind your religion to protect your views, then you’re a hypocritical bigot. There is nothing religious about bigotry, no matter what some might want you to believe.
An employee suffering from epilepsy, migraines and heart condition asks (with a medical note) for two unpaid days off from work to treat symptoms related to her disabilities.
Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.
A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues.
These policies, however, carry, a certain degree of risk — namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy. And, in this case (assuming the medical note is legit), and for this reason, it appears this employer has a big problem with the EEOC.
On a more basic level, where’s the humanity in denying two days off for an employee to deal with medical symptoms, especially when the request is accompanied by a doctor’s note?
The ADA requires reasonable accommodations. Unless the employee is a serial abuser of unpaid days off, it’s hard to imagine a situation in which two days is not a reasonable request.
I don’t even know what to say about today’s nominee for 2019’s worst employer, so I’ll just let Newsweek do the heavy lifting.
