Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Cue the music, please:
A tinkling piano in the next apartment
Those stumbling words that told you what my heart meant
A fairground’s painted swings
These foolish things remind me of you.
“What kind of fool are we?”1 Musing over Cole Porter’s immortal lyrics in today’s workplace may surely spur contact from a plaintiffs’ lawyer retorting with David Byrne’s “this ain’t no fooling around.” This past year, as the news cycles spun and our collective stomachs churned, we often had the same thought: You’ve got to be fooling? And Pete Townshend thought that “we won’t get fooled again.” Sadly, “fools rush in,”2 and we are all still passengers on a “ship of fools.”3
We were pummeled with polar vortexes and cringe-worthy confirmation hearings, both of which were chilling and painful. Politicians who came of age before cellphone cameras learned that yearbook photos can be just as damning. Remember earth shoes? Don’t be shocked if someone leaks a photo from a late 1970s high school yearbook, showing Chicago Mayor Rahm Emanuel scandalously sporting them. And these days, polar bears invaded Russia,4 presumably not at direction of Robert Mueller. It even snowed in Maui. Meanwhile, Americans still remain bitterly divided, yet united in the fact that none of us can properly explain Brexit.
Keith Richards, who now qualifies as a mature and even wise elder, might say, “You’re a fool to cry.” So this April Fools’ Day we once again bring you the lighter side of labor and employment news, because, let’s face it—we need it.
Whatever Happened to Dental Benefits?
Paid leave and orthodontia coverage are so passé. Companies are stepping up their game to attract and retain top talent. Ping-pong tables and “paw-ternity”5 leave are no longer novel benefits. In this digital era, employee perks are available at the touch of a button. Last June, Austin-based on-demand delivery app company, Burro, partnered with a goat yoga company to provide—you guessed it—on-demand baby goats.6 For a limited time, instead of ordering pizzas for the office party, your boss could have had two baby goats delivered for...well, we’re not entirely sure ourselves. World Goat Day on May 1 may already be booked. The company helpfully advised that if the goats were indeed intended for an office social, to “please make sure your boss or building is pro-little goats.” We’re assuming this means ensuring the supply closet includes a mop and some bleach.
Remember, some comfort or support animals might rise to the level of a reasonable accommodation under the ADA—and ADA Title I at least doesn’t exclude goats, snakes, ferrets, peacocks or weasels (nor do many Bar Associations).
And speaking of comfort animals, Dexter, the famed “comfort peacock” of airport fame, passed on.7
He was a proud peacock.
If goat yoga isn’t your thing, perhaps you’d find menopause awareness more enlightening? As part of its “Let’s Talk Menopause” initiative, the University of Leicester became the first University in the UK to adopt a menopause policy to help eliminate any stigma associated with this change of life.8 The University encouraged its staff to say the word “menopause” at least three times a day to demystify the term and promote candid and informal discussion. The University also holds monthly “Menopause Cafes” during which participants pause to share their thoughts about menopause over tea and coffee.9
What if your job duties were job perks? In October 2018, MUTTS Canine Cantina, a dog-friendly bar in Texas, hired its first $100-per-hour “puptern” for its new Forth Worth location. Per the establishment’s Instagram job advertisement, the puptern’s main job responsibility is to “pet puppies.”10 The puptern’s other job responsibilities include “greeting MUTTS members and their four-legged friends, monitoring the small and large dog parks to engage with pups who want to play a game of fetch or frisbie, and being available for puppy cuddles.”11 No word on whether colleges across the country have added Canine Studies as a course offering.
In other we-clearly-missed-our-calling news, last year a mattress retailer advertised for its first paid “Snoozetern.”12 The 20-hour-per-week position involves testing out various sleep products and creating social media content, among other duties. In addition to being “passionate about sleep and comfort,” the Snoozetern’s job qualifications include being “proficient in napping, regardless of time of day.”
Weaponizing the Alamo
In a recent trade secrets case, a Texas judge issued a status conference order, which typically outlines the due dates and parameters for such mundane litigation points as jurisdiction, venue, and discovery—you know, the types of courtroom intrigue often portrayed in dramas like Suits, The Good Wife, and Law and Order. The order in this particular case makes it clear why you don’t mess with Texas.13
After leading with an Elvis quote,14 the judge cautioned against “Rambo tactics or other forms of elementary school behavior.” More to the point, while the judge did not expect counsel “to hold hands and sing Kumbaya,” he warned that unprofessional conduct or “acerbic shrillness in the pleadings” could result in the attorneys “sitting in timeout” and “kissing each other on the lips in front of the Alamo with cameras present.”
The order included a brief history—“a long time ago in a galaxy far, far away”—of San Antonio litigation, but we’ll skip that here for brevity’s sake.
The judge concluded with a note about timing, complete with a History of Earth diagram adapted from Carl Sagan’s Cosmic Calendar. Per the court,
Condensing 14 billion years into a twenty-four hour time line reveals that our ancestors showed up at about a minute before midnight, which means that our biblical three score and ten and the time of this litigation is a nanosecond blink of an eye. Accordingly, may we move toward a reasonable conclusion with or without a trial whether in this Court or some other.
Should parties ever find themselves before the San Antonio Division of the U.S. District Court for the Western District of Texas, it is recommended they maintain civility and adhere to the court’s schedule, or keep an extra Chapstick and disinfectant on hand.
Judges often reference texts in their decisions. U.S. Supreme Court opinions have famously quoted from the Oxford-English Dictionary or Webster’s Third. In a breach of contract suit out of the New York Court of Appeals, the court took a similar route.
In this case,15 the plaintiff commodities broker entered into a three-year employment agreement with the defendant, a provider of brokerage and advisory services. As the contract expiration date approached, the defendant’s chief executive officer sent the plaintiff an email regarding contract renewal. The defendant set forth the same terms as in the initial contract, and added, “[a]ny further questions, let me know but u [sic] do have your existing contract.” A month later, the plaintiff responded via email, “I accept, pls [sic] send contract,” to which the defendant replied, “Mazel. Looking forward to another great run.”
Additional in-person meetings and email correspondence failed to reduce these terms to a formal written agreement. The plaintiff filed an action for breach of contract.
The parties parsed the back-and-forth exchanges, as litigants are wont to do in such disputes. One issue key to determining whether the parties’ exchange “sufficiently evinced an objective magnification of an intent to be bound” was the meaning of the term “Mazel” as used in the email. Was it an expression of luck or congratulations? Enter The Joys of Yiddish.
Citing this authoritative text, the court explained, “ultimately, ‘mazel’ came to mean ‘luck’ and ‘mazel tov’ an expression of congratulations . . . Thus, [defendant’s] counsel is correct that the literal translation of ‘mazel’ does not necessarily express congratulations. Nevertheless, a fact-finder could reasonably infer that the word was being used here in reference to the congratulatory interjection ‘mazel tov.’”
Only a schlub would shorten the ubiquitous “mazel tov.” But, given this uncertainty, the court rejected the defendant’s argument that the breach of contract claim should have been dismissed, allowing the parties to kvetch another day.
He Really Does Read it for the Articles
Over the past few years, thousands of companies have received demand letters claiming that their websites violate the accessibility requirements of Title III of the Americans with Disabilities Act.16 One such plaintiff, who is legally blind, sued Playboy.com on the grounds it was not compatible with his text-to-speech software, and that the pictures did not include “a text equivalent,” thereby denying him the full use and enjoyment of the website “on several separate occasions.”17 The lack of “alt-text” on the graphics “prevents screen readers from accurately vocalizing a description of the graphics.” Nor was the plaintiff able to purchase Playboy-branded “hoodies, jogger pants, tees, watches, and sunglasses.”
Rage Against the Machine
In March 2018, President Trump infamously fired Secretary Rex Tillerson from the State Department via tweet. Lest you think that’s the most undignified way to be shown the door, at least the decision was made, indirectly, by a human.18
By contrast, programmer Ibrahim Diallo was fired by a computer. Diallo, who had been eight months into working on a three-year contract, was unceremoniously terminated via an automated system because of a business restructuring snafu. A new organization had acquired the company for which he was performing the contract work, and the manager responsible for entering his contract information into the new system was terminated. A cascading series of automated events effectively terminated Diallo’s contract and locked him out of the network and building. Finding and fixing the issue took three weeks. As Diallo explains on his blog about the event, “the machine took over and fired me.”19
Which, on second thought, is still more dignified than being fired on Twitter.
Speaking of automation and job loss, Fido might need to start dusting off his resume. Some farmers in New Zealand have started using barking drones to herd their livestock instead of sheep dogs.20 This might make ordinarily hyperactive border collies more anxious than usual. Operating the $3,500 devices has proven to be quicker and more efficient at shepherding the animals, according to the farmers. Moreover, they claim cows and sheep are less likely to challenge the drone than a dog—which is just insulting. Dogs, however, still need less charging, rarely get stuck in trees, and don’t cause whole airports to shut down.21
In final robot news, August 2018 was a simpler time, when Congress considered amendments to a government spending package that did not include $5.7 billion for a border wall. Instead, the real concern back then was making sure no funding be allocated for beerbots. Former Sen. Jeff Flake (R-AZ) proposed an amendment to the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, to explicitly prevent the DoD from using any appropriations for such nefarious purposes.
On August 23, 2018, the Senate agreed to Amendment 3835, To prohibit the use of funds for the development of beerbots or other robot bartenders,22 by unanimous consent. And we all slept more soundly henceforth, and our sources for sound life-coaching and refreshment still have job security.
All Chips are Down
In other technology-run-amok news, last year we reported on Three Square Market (32M)’s becoming the first U.S. employer to give employees the option of being microchipped.23 The Wisconsin-based company specializing in self-service office break room vending machines offered to implant employees with radio-frequency identification (RFID) chips they could use to make break room purchases, open doors, and log in to computers, presumably for the convenience of doing so and not just because unlocking doors with the wave of one’s hand is a neat parlor trick. This past year, some state legislatures have taken notice.
As of January 1, 2019, employers in New Hampshire can no longer require, coerce or compel an individual to receive a “subcutaneous implantation or other internal or external bodily possession of an identification device” as a condition of employment.24 Arkansas enacted a similar law on March 19, 2019;25 related bills are pending in Indiana, Montana, and Tennessee. If these bills are enacted, employers in those jurisdictions will have to offer other incentives—perhaps goat yoga, puppies, menopause cafes or robot border collies?—to keep employees from straying.
Three years ago, and before the firm put the undersigned on double-secret probation, our faithful readers were introduced to “Onionhead” or “Harnessing Happiness,” a conflict resolution/belief system that included prayers, rituals, and lots of hand-holding.26 The EEOC brought suit on behalf of a group of employees who claimed their employer unlawfully compelled them to participate in Onionhead—which was created and administered by the CEO’s aunt—and thus engage in religious practices at work, creating a hostile work environment.
The lawsuit also alleged the employer terminated one employee who opposed these practices, in violation of Title VII. Such mandatory activities and practices included discussing personal matters with colleagues and management, burning candles, holding hands and praying, asking employees to thank God for their employment, saying “I love you” to management and co-workers, and keeping the lighting dim because demons purportedly came through the overhead fixtures.
While fluorescent lighting may, indeed, be the work of Beelzebub, in April 2018, a federal jury in Brooklyn awarded the 10 claimants $5.1 million.27
Blame it on the Bratwurst
It is not unusual for an employee to fail a random drug test and then face termination for impermissible drug use. But one Department of Homeland Security employee’s excuse for testing positive was especially novel.28
An Information Technology Specialist for the DHS claimed he didn’t mean to ingest marijuana—rather, he “inadvertently ingested” two pot-laced brownies at a barbeque, although his memory was hazy.He was unable to say who had provided the brownies or who had hosted the barbeque, which allegedly took place in April in Minnesota in 30-degree weather.
The court expressed skepticism at this explanation, noting the employee failed to provide “any evidence from either the person who purportedly brought the brownies or from the host” or “a statement from anyone else who either knew that the brownies contained marijuana or who did not know, but felt the effect of the drug.”
The employee, who asserted he does not drink or take prescription medications, claimed he did not feel any behavioral or physiological effects of the two edibles, but did suffer an upset stomach, which he attributed to the bratwurst, undoubtedly from neighboring Wisconsin.
The real question, left unanswered by the court, was “who barbeques in Minnesota in April?”
Speaking of Creative Excuses....
In disbarment proceedings before the Supreme Court of New Jersey’s Disciplinary Review Board, an attorney accused of various ethics violations did not deny she misappropriated client funds, but rather offered up an innovative reason for why she should maintain her law license.29 The attorney admitted she failed to deposit her client’s funds with a financial institution, and instead “set aside . . . a portion of [her] collection of gold and silver coins,” which she kept “in a coin box at a relative’s home in Pennsylvania.” This, among other allegations of impropriety, should not result in disbarment, she argued. Mitigating circumstances should be weighed in her favor, she explained. These include a home fire, her mother’s failing health, and that “Donald Trump . . . was permitted to run for office in spite of his being investigated for treason [and] several claims of sexual misconduct.”
The Disciplinary Review Board did not, however, entertain the “but you let the president do it!” excuse, and the attorney was disbarred.
It’s Like, a Legitimate Job, Dude
Finding qualified employees is a perennial challenge these days. Apprenticeship programs are a great way to provide the job market with skilled workers, no matter the industry. In San Francisco, finding qualified workers for the thriving marijuana industry is about to get easier. On January 15, 2019, the San Francisco Board of Supervisors adopted standards for approving cannabis business licenses that will require employers to ensure participation in pot apprenticeship programs.30
Specifically, cannabis businesses must guarantee that 35% of its new hires be registered apprentices enrolled in a relevant, state-approved apprenticeship program. On January 8, 2019, California’s Statewide Cannabis Industry Employers Joint Apprenticeship Committee adopted such statewide apprenticeship standards.31
Cultivating the requisite industry skills is a process. According to Ms. Mary Staffing, an employment agency for marijuana personnel,32 growers often start out as “budtenders” or trimmers and work their way up the cannabis ladder. All this hard work is ultimately worth it. Per Ms. Mary, and as Snoop Dogg would undoubtedly agree (“Mr. Dogg” if this was the New York Times), “the rewards of surrounding yourself with green, growing life cannot be overestimated.”
Save the Man Bun or “Almost Cut My Hair”
Like the words “selfie,” “influencer,” and “social” used as a noun, the unfortunate phrase “man bun” has entered the world’s lexicon. Indigenous to microbreweries and artisanal coffee houses, not to mention professional soccer, man buns have sprouted on heads far and wide. One airline worker claims he was fired for his.
A London-based airline employee alleged he was terminated because he refused to cut his hair to conform to the company’s uniform guidelines.33 Although dreadlocks and turbans were allegedly acceptable, man buns were not.
Those of us old enough to remember the venerable mullet should probably learn to accept such fads in stride.
Still Less Embarrassing Than a Mistaken “Reply All”
Speaking of body parts getting you fired, a Georgia man learned that if you’re going to complain about your boss to your wife, make sure your derriere doesn’t invite him into the conversation.34 The former state employee accidentally “pocket dialed” his boss one evening, and proceeded to make disparaging comments about him for approximately 12 minutes before realizing his error. The next day, his boss gave him the option to resign or be fired. The employee chose the former, but then sued for invasion of privacy, claiming the “voyeuristic eavesdropping” constituted “felonious conduct.” His boss was successful in dismissing the complaint, arguing that as a state supervisor responding to a call from a subordinate employee, he was acting within the scope of his official duties and was therefore immune from suit. In 2015, the Sixth Circuit in a similar lawsuit found that those who pocket dial another person have no expectation of privacy, as they—or at least parts of them—initiated the call.35
Thou Shalt Man the Omelet Station
Guilt and fear—particularly concerning the fate of one’s soul—can be powerful motivators. But it doesn’t necessarily amount to a Fair Labor Standards Act violation. In Acosta v. Cathedral Buffet, Inc.,36 the Sixth Circuit reversed and remanded a lower court’s finding that a church-run, for-profit restaurant violated the FLSA’s minimum wage requirement by using unpaid church volunteers to work alongside employees.
Cathedral Buffet’s sole shareholder was Grace Cathedral, a non-profit religious organization, whose televangelist pastor served as the president of the restaurant. The volunteers were recruited from the Sunday pulpit, where congregants were told that every time they declined to volunteer at “the Lord’s buffet” they were “closing the door on God.” Church members who refused to volunteer were told they were at risk of “blaspheming against the Holy Ghost.” No pressure!
The Department of Labor had argued the volunteers were effectively unpaid employees. The appellate court disagreed, finding that while the volunteers were “clearly integral to the buffet’s operations,” they had no expectation of compensation, precluding any assessment of the FLSA’s economic realities test. In other words, spiritual coercion does not equate to economic coercion, thus casting traditional FLSA analysis to eternal damnation.
Despite its favorable ruling, the Cathedral Buffet has reportedly closed for good—which perhaps is just as well, given its less-than-heavenly reviews. Per one TripAdvisor commenter, “The potatoes were instant (and not even the good kind).”
On that note, may your April be filled with fun and frivolity, and your instant mashed potatoes always be the good kind. And “don’t get fooled again.”
1 Anthony Newley asked, in the singular, “what kind of fool am I?”
2 The authors endorse the Rosemary Clooney version of this Johnny Mercer classic.
3 The Grateful Dead, Robert Plant, and others lay claim to this title to different songs.
4 Polar bears, y’all. You think we’d make this up? See Marc Bennetts, Russian islands declare emergency after mass invasion of polar bears, The Guardian, Feb. 11, 2019.
5 Leave to care for a newly adopted pet, also referred to as “fur-ternity” leave. You know a trend is firmly entrenched when it generates more than one cutesy moniker.
6 #BurroGoats On-demand, http://burrogoat.com/.
7 Robyn Merrett, Emotional Support Peacock Famous for Ruffling United Airlines’ Feathers Unexpectedly Dies, People.com, Aug. 15, 2018.
8 “Let’s say ‘menopause’ three times a day”, University of Leicester, Aug. 6, 2018.
9 World Menopause Day is October 18. Only 201 shopping days left!
11 MUTTS Canine Cantina Picks its First ‘Puptern’, QSR Magazine, Nov. 28, 2018.
13 HouseCanary Inc. v. Quicken Loans Inc., No. 5:18-cv-00519 (W.D. Tex.) (Aug. 14, 2018) (Order setting an initial status conference, hearing regarding jurisdiction, venue, request for injunctive relief and other related matters).
14 “Truth is like the sun. You can shut it out for a time, but it ain’t going away.”
15 Kolchins v. Evolution Markets, Inc., 31 N.Y.3d 100, 96 N.E.3d 784 (N.Y. 2018).
16 See Mark T. Phillis and Robert W. Conti, Dear Littler: Does Our Company’s Website Violate Title III of the ADA? Dear Littler Video (Mar. 7, 2019).
17 Nixon v. Playboy.com, Case No. 1:18-cv-06769-PKC-CLP, Class Action Complaint and Demand For Jury Trial (E.D.N.Y. filed Nov. 28, 2018), available at https://cbsla.files.wordpress.com/2018/12/nixon_v_playboycom_inc__nyedce-18-06769__0001-0.pdf.
18 No comment.
19 Ibrahim Diallo, The Machine Fired Me, https://idiallo.com/blog/when-a-machine-fired-me.
20 Peter Holley, New Zealand farmers have a new tool for herding sheep: drones that bark like dogs, The Washington Post, Mar. 7, 2019.
21 Karla Adam, How a drone shut down one of Europe’s busiest airports, The Washington Post, Dec. 21, 2018.
22 Yes, that was the official title. https://www.congress.gov/amendment/115th-congress/senate-amendment/3835.
23 Tessa Gelbman and Peter Petesch, What a Fool Believes? These Non-Fake Employment News Stories, Littler Insight (Mar. 29, 2018).
24 H.B. 1372, 2018 N.H. Session, An Act prohibiting the implanting of subcutaneous identification devices in individuals, available at http://gencourt.state.nh.us/bill_status/billText.aspx?sy=2018&id=1558&txtFormat=html.
25 H.B. 1177, 2019 Ark. Session, 92nd General Assembly, An Act To Protect Employees From Forced Human Microchip Implantation, available at http://www.arkleg.state.ar.us/assembly/2019/2019R/Acts/Act516.pdf.
26 See Darren E. Nadel & William E. Trachman, Company Practices “Onionhead”—Employees Cry Reverse Religious Discrimination, Littler Insight (Oct. 13, 2016); Peter Petesch and Betsy Cammarata, These Foolish Things – The Oddest Employment Issues of the Past Year, Littler Insight (Mar. 30, 2017).
27 EEOC v. United Health Programs of America, Inc. and Cost Containment Group Inc., No. 14-CV-03673 (E.D.N.Y. Apr. 25, 2018) (verdict form).
28 Hansen v. DHS, No. 2017-2584 (Fed. Cir. Dec. 28, 2018).
29 In re Wooten, No. DRB 18-084 (N.J. June 27, 2018).
30 Ordinance No. 180805, available at https://sfgov.legistar.com/View.ashx?M=F&ID=6804277&GUID=836A4B11-CF49-487E-A6EA-5889F7E1F273.
31 State of California Department of Industrial Relations, Apprenticeship Standards of the Statewide Cannabis Industry Employers Joint Apprenticeship Committee, available at https://www.dir.ca.gov/das/standards/StatewideCannabisApprenticeshipProgram.pdf.
32 Who knew? http://msmarystaffing.com/growers/.
33 See Man bun hairstyle ‘gets British Airways worker the sack’, BBC News (Aug. 6, 2018).
34 Georgia man sues former boss after butt dial costs him his job, CBS News (Apr. 11, 2018).
35 Huff v. Spaw, 794 F.3d 543 (6th Cir. 2015).
36 No. 17-3427 (6th Cir. Apr. 16, 2018).