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.
WARNING: this article is intended for immature audiences.
Hopefully, that light at the end of the tunnel is not the on-coming 5:15 from New Haven. While we’ve been fortunate to have continued working safely and responsibly in extended seclusion during this pandemic, mind-bending solitude also provides ample opportunity – interspersed among ongoing telework, wandering workforce, Covid-19 leave, and vaccine questions – to reflect on the effects of sustained isolation. Buoyed by the camaraderie of hallucinations, we cry out, sporadically:
Exercising rare restraint, we held off last year in publishing our annual April 1 review. We deferred out of respect for a world in pain and turmoil, which we naively believed would end soon, allowing us to regress into tasteless satire by the summer. Then, we recoiled in shame as the country became the laughingstock of the world in all so many ways. But then we realized that people sheltering in glass houses should not throw stones, throw parties, or remove their masks. We are not alone.
So many peculiar things happened over the course of isolating during the pandemic that listing all head-scratching events would be not only a fool’s errand, but head-scratching might flout guidance from the Centers for Disease Control.
The United Kingdom parted ways with the EU for reasons we (and perhaps they) can no longer remember. The four-year slog inaptly named with the crisp term “Brexit” drew to a close. As soon as travel becomes viable, visitors to Britain from the Continent, terrified by the prospect of choosing between grey beef with gravy or bangers and mash, will be packing their own food. The United States, in shop-at-home frenzy, tried to buy Greenland . . . but Denmark insisted on Manhattan and a string of glass beads. At the inception of the Covid-19 pandemic, a small French village in Brittany – Landerneau – bucked public health wisdom and hosted a world record-breaking Smurf gathering. 3,500 celebrants of this Belgian cartoon danced in blue conga lines. The town mayor (and still mayor), Patrick Leclerc, reasoned that “a bit of fun would do us all good at the moment.” He exclaimed: “We must not stop living... it was the chance to say that we are alive.” Many actually survived. (Meanwhile, the museum in Belgium celebrating the Smurfs and Tin Tin remains closed due to Covid.)
Foolishness is global. How else to explain the international cast of “Cats” and the nightmares that ensued from that global scourge?
Easing out of hibernation this year, we divert attention from harrowing events purely on the domestic front by shining a light on odd employment and legal stories worldwide, plus Alabama. Our censors tried to scrub their hands of this near-annual annoyance, but with them still in quarantine, we encourage your infectious laughter with our GLOBAL April Fools’ review. A bit of fun might do us all some good, just without the crowds and, sadly, Smurfs. And, please do not read this during another mesmerizing virtual meeting, whether or not (as detailed below) you are wearing pants. (We are. Honest.)
Send in the Clowns
Effective in 2021, the U.S. Department of Transportation unleashed a rule on service animals on flights under the Air Carrier Access Act.1 This rule formally distinguishes and defines true service animals from emotional support animals. While this clarity is a positive development for airlines, passengers and individuals who rely on trained service animals, it sends comedy to the doghouse.
Who could forget the late great Dexter, an emotional (and, naturally, proud) support peacock turned away at Newark, New Jersey’s international airport? That same year, Daisy the emotional support squirrel made it onto an Orlando, Florida airplane before she and her humanoid companion were unceremoniously escorted off. Eighty-pound Hobie, the emotional support pig, was booted only after squealing and defecating in the aisle—which might not be the most a-paw-ling behavior some of us have witnessed by fellow passengers mid-flight. Hobie, we note, kept his shoes on, did not refuse to don a mask, and at least did not recline (or vomit, as one Las Vegas passenger did to greet his fellow traveler) onto the passenger seated in back of him.
Layoffs, like airline takeoffs, are stressful events. Employees about to have their jobs terminated could use all the emotional support they can get. This is why one advertising agency staff member in Auckland, New Zealand brought an emotional support clown to his redundancy meeting.
While not particularly warm or fuzzy, and possibly scary to some, the clown did create balloon animals (perhaps a peacock, gerbil, squirrel or pig?) during the meeting. The clown also “mimed crying” when the employee was handed his termination paperwork, and likely had several handkerchiefs up his sleeve if one was needed. Notably, while the Department of Transportation’s service animal rule took issue with emotional support snakes (wait, snakes off a plane?), ferrets, rodents, and spiders, it did not, unfortunately, mention clowns. So, flying with one should still be acceptable, provided the handler attests to the clown’s ability either [to] not relieve itself, or relieve itself in a sanitary manner. (This raises the question of whether the clown would have to fit in the space under the seat in front.) This would also permit passengers to bring “The Dude” from The Big Lebowski, who stridently declared: “At least I’m housebroken.”
These days, there may not be enough clowns to go around. But send them in anyway.
Take Off My Pants
Composer Randy Newman wrote these prescient lyrics:
Gonna take off my pants
And your mama can't stop me
And your papa can't stop me
And the police can't stop me
No one can stop me
Over the pandemic and extended telework, we clung to at least one steadfast principle: wearing pants (trousers, to clear up any misunderstanding with our British colleagues). Not all of the legal or workplace community shared that vow. We refer to certain (former) television legal commentators, and well-appointed advocates (from the waist up) in virtual hearings. Judges across the globe paused to admonish attorneys on proper decorum for virtual hearings and court “appearances.” In one such instance, María del Carmen Cruz Marquina, a judge presiding over a virtual hearing in Mexico, adeptly observed: “Counselor, you are not wearing pants, and you are in court.”2 Talk about getting caught with one’s pants down. Beneath their robes, the judiciary was not fully immune from this silliness. In Brazil, a magistrate judge was caught by senior colleagues circling his desk in (and not reviewing) his briefs.
Closer to home, a judge in Broward County, Florida posted a letter to the Weston Bar Association’s website imploring attorneys participating in virtual court proceedings to please dress like grownups during court hearings, virtual or otherwise:
It is remarkable how many ATTORNEYS appear inappropriately on camera. We've seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers. And putting on a beach cover-up won't cover up you're poolside in a bathing suit.
A federal court in Texas had to weigh in too, with this March 2021 “Important Notice on Dress and Conduct in Virtual Proceedings”:
During the current pandemic, many court proceedings are being conducted virtually. Unless otherwise expressly permitted by the presiding judge, participants must dress and conduct themselves as if in a courtroom. Business attire is appropriate for attorneys. Certain clothing items, such as a golf shirt, t-shirt, tank top, halter top, athletic wear, lounge wear, hat, and sunglasses, are not appropriate in a court proceeding, whether virtual or in-person. Notwithstanding the foregoing, the presiding judge shall have the discretion to establish appropriate standards of dress and conduct.
This should put a halt to that halter top, but did prompt the authors to google the precise meaning of “golf shirt.”3 Notably, nowhere in the court’s message did it mandate pants, although we’d really like to measure compliance when the bailiff calls “all rise” as the judge takes the virtual bench.
Businesses, too, never imagined having to remind employees to wear pants for videoconferences. One survey reported that 10% of participants in Zoom meetings do not wear pants.4 This did not even account for many others who instead wore pajamas or, presaging the collapse of Western civilization, sweatpants. To think, we were initially concerned over male members of the legal profession forgetting how to tie a tie.
And don’t get us started on deploying Zoom filters to pose as a cat for a court hearing. The Texas lawyer who did do that accidentally was lucky he wasn’t portrayed as a unicorn or potato. And, he showed the sound judgment of (1) having a keen sense of grace and good humor after the fact and (2) wearing pants.
Trippin’ or “Oh, the Places You Can’t Go!”
With so many employees confined to their homes with no imminent vaccine appointment, some sympathetic employers are beginning to offer the benefit of “virtual vacation” experiences – spectacular journeys that can be taken from home, without even parting from the employee’s computer monitor. Just hum a few bars of The Beatles’ “Nowhere Man” and you’re off. Pants optional!
As one virtual reality company explains, “Leading HR organizations have long utilized quiet rooms and meditation rooms as a powerful employee benefit. With Guided VR, every desk can become the gateway to a relaxing virtual vacation.” It’s just like being away—really! Until the phone rings.
Good intentions aside, this newfangled benefit serves up the opportunity for snark and satire on a golden platter. For employees with a history of enjoying that two-week holiday from the drudgery of their jobs, it also may pour a dose of salt in the wound: a taunting reminder that they have scarce hope of returning soon to those good old days. Imagine the hollow angst that only a virtual vacation can deliver. Yet, from home work stations, remote workers can visit foreign lands without feeling the pressure to apologize for their country’s reputation. Adventures might include running (in place) with the bulls in Pamplona or diving (in place) the cliffs in Acapulco. Those who relish travel within the Continental United States could indulge in the Seven Wonders of New Jersey, and try to match the scratch-n-sniff card to a series of turnpike exits.
Whole families can stare wistfully into the abyss of the computer monitor to swallow the harsh reality of their mundane, homebound existence. Tasting exotic local fare is no harder than opening the door to one’s boring pantry and cracking open another jar of salsa for a sunny escape to Puerto Vallarta. With a dose of imagination, an unrefined palette, and a ready supply of antibiotics, that expired can of corned beef hash can double for a savory Terrine Beaujolaise at a convivial bouchon in Lyon, or haggis in the Scottish Highlands. And, on a virtual vacation tour, one never drinks alone.
Breaking up is Hard to Do
“It just isn’t working out. It’s time for a change. It’s not you, it’s me.”
Quitting can be so awkward.
Thanks to the Japanese firm, Exit, it doesn’t have to be. For a mere ¥50,000 (U.S. $453.70, and only $272 for part-timers), you can leave your place of employment and never look back. It’s the ideal solution for those who want to socially distance themselves from their job forever. According to Exit’s website, the service is “for those who want to quit right now.”5 No need to contact your boss, fill out pesky paperwork, or have uncomfortable last conversations with coworkers, promising to meet up for lunch or virtual happy hour but knowing you never will. Exit will take care of all that, including returning any company-owned property and telling the firm not to contact you. Repeat quitters even get a discount!
Business or Pleasure (Affaire ou Plaisir)?
A French court upheld a health insurance fund’s determination that a man’s fatal heart attack, which was triggered by an affair he engaged in while on a business trip, was a covered work-related injury. So much for the concept of a frolic and detour.
His employer, a rail engineering company, appealed the insurance fund’s finding, arguing the employee clearly interrupted his work performance to engage in extracurricular activities (a/k/a workus interruptus). Specifically, the company asked the Court of Appeal to rule that the employee’s death “occurred when he had knowingly interrupted his mission for a reason solely dictated by his personal interest, independent of his job, after he had an adulterous relationship with a complete stranger.”
Under French employment law, the employer was figuratively screwed (pun never intended). Accidents occurring while an employee is on a business trip are presumed work-related, even if the employee is engaging (in flagrante delicto) in everyday activities unrelated to work. According to the insurance fund, “sexual intercourse is part of everyday life like taking a shower or a meal.” The Court of Appeal in Paris agreed, as the employer was unable to prove the employee was supposed to be working during his dangerous liaison. Vive la France!
No Joie de vie for you!
To encourage proper social distancing to limit virus transmission—and heart attack-inducing trysts?—during mealtime, the French government did the unthinkable: revised the labor code to allow workers to (gulp!) eat at their desks. Mon Dieu! C’est très barbare! Such anti-social and uncouth behavior is ordinarily taboo in the French workplace.6 In fact, during pre-pandemic times, Article R4228-19 of the French Labor Code expressly prohibited employers from allowing workers to eat meals at their work stations. The amendment came just weeks after the government issued a separate safety-related protocol prohibiting “moments of conviviality” in face-to-face meetings. In its quest to rid the workplace of all bons vivants, the French government’s next protocol is expected to mandate sensible shoes and boxed wine. Quelle horreur!
Dim the lights and lower your voice. For the sick.
A German court declared hangovers an “illness” in a lawsuit against a seller of a so-called hangover cure. It is generally unlawful in Germany to claim that a food or supplement can cure ailments or diseases. The alleged “anti-hangover shot”—made from plant extracts, electrolytes and vitamins—was advertised as a way to avoid the nausea, fatigue, headaches and other symptoms that can plague over-imbibers.
In determining that hangovers are a legitimate illness, the court explained, “Sickness is to be understood as . . . including a minor or temporary disruption of the normal condition or normal activity of the body . . . even an insignificant or temporary disruption of the normal condition.” In this case, the court found that that a hangover is indeed an illness, and that “in the interest of health protection that is as effective as possible, the term should be interpreted broadly.”
While this decision was not overtly employment-related, Oktoberfest (hopefully) starts promptly (after all, this is Germany) at noon on September 18, 2021. Employers in Germany should therefore prepare for significant “illness”-related absenteeism on Monday, September 20.
Maybe He’s Just Hungry
An employment tribunal in the United Kingdom has held that “ethical veganism” is a protected “philosophical belief” under the UK Equality Act 2010. The matter came about when an employee disclosed that his employer, an animal welfare charity, invested pension funds in companies that engage in animal testing. He alleged that his employer discriminated against him because he is an “ethical vegan.” His employer claims he was instead fired for gross misconduct.
The Equality Act provides employment protections on the bases of religion or belief, as well as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex, and sexual orientation. The former employee argued his veganism is a deeply held philosophical belief covered by the Act.
Employers in the United States may recall similar arguments made over two decades ago by the infamous “vegan bus driver” of Orange County, California. The driver sued the transit authority after he was fired for refusing to distribute hamburger coupons as part of a promotional campaign. He alleged the employer failed to accommodate his deeply held moral and ethical beliefs that were akin to traditional religious views. The transit authority settled the case for $50,000, so the U.S. court never had an opportunity to decide whether veganism was the functional equivalent of religion for discrimination law purposes.
The UK tribunal, however, did get to the meat of the issue under its discrimination legislation, and found that veganism is indeed a protected philosophical belief. In a statement following the ruling, the employee claimed, “Better protection means more vegans will be able to be open about their beliefs.”7 And we all know how vegans prefer to keep their views to themselves.
All Things Must Pass
An Australian appeals court dismissed a construction contract administrator’s workplace bullying case against his former employer. According to the lawsuit, during the course of the plaintiff’s employment, his supervisor would enter the contract administrator’s “small, windowless” office several times a day and, yes, …pass gas.
The employee argued this repeated flatulence caused “severe stress” and constituted a form of gas warfare. The supervisor allegedly bullied him in this manner, as well as subjected him to obscene gestures and taunts, until the employee was “let go” (no pun intended . . . really) as part of a general economic downturn that impacted the construction industry. The employee sought $1.8 million in Australian dollars (U.S. $1.3 million) in damages.
The supervisor testified he did not recall such activity, but might have broken wind “once or twice.” To defend himself against the onslaught, the employee said he sprayed the supervisor with deodorant and called him “Mr. Stinky.”
Accepting these foul allegations as true, the court found such acts do not constitute actionable bullying, taking the wind out of the plaintiff’s sails. Mandatory telework must have come as a breath of fresh air for this aghast employee.
Doo the Right Thing
DoodyCalls is a competitor of Scoopy Doo in the dog-eat-dog business of pet waste removal – picking up the slack for homeowners reticent to shovel their pets’ droppings (a fitting metaphor for the noble legal profession). The U.S. EEOC issued a press release, or scoop, over settling a case involving a pregnant employee (possibly in her turd trimester?) who was allegedly excluded from doing her fecal removal job due to perceived hazards associated with lifting restrictions during her higher-risk pregnancy. Smelling trouble, the EEOC contended that the employer was barking up the wrong tree in assuming that she could no longer do her job. The EEOC piled on by filing suit.
The facts posed a proverbial legal minefield, on the interface of the Pregnancy Discrimination Act and principles under the ADA. The lessons from this case are:
Number 1 – don’t be left holding the bag in making restrictions on pregnant employees and
Number 2 – don’t step in it.
This Article is Clearly Going to the Dogs
Again with the animals? Sorry. We can’t help ourselves. But we don’t make these stories up, we swear. This past year, a meter reader who was bitten by a dog while working collected nearly $186,000 in workers’ compensation benefits after her resulting dog phobia left her unable to perform her job. This phobia was so intense, she claimed, that she not only fainted at the sight of dogs, but also often drove out of her way to avoid passing dog grooming and pet-related businesses. Alas, after a dogged investigation and hounding by the Washington State Department of Labor & Industries, the Shih Tzu hit the fan when it was discovered that perhaps her phobia was not as debilitating as she let on. It turns out she and her husband had been rescuing and fostering dogs for 30 years, six of which were still living with her during her alleged period of canine-induced post-traumatic stress disorder (three of them bulldogs).
What is Going on with Washington?
And this time we don’t mean D.C. In yet another workers’ comp fraud case out of Washington State, a police chief claimed she could not work and suffered from PTSD after a corpse fell on her. That old excuse! But it turns out this tragic incident didn’t derail her ability to work after all. The Department of Labor & Industries uncovered that she had indeed found alternative employment, albeit as a pinup photographer and model going by Tuff As Nailz and The Black Widow Bettie. The investigation laid bare her misleading declarations about her ability to work, which resulted in her improper collection of $67,000 in workers’ compensation benefits.
Could “Washington Person” become the next “Florida Person”?
And, as promised, in that foreign land known to many as Alabama, the state legislature heralded a resolution urging all individuals in the state to “fist bump” rather than shake hands at the inception of the coronavirus health crisis. This courageous stand, skirting the more complex procedure of hand-washing, will surely touch – or bump – the hearts of all Alabamans.
We hope this year’s April Fools’ Day round up was a whiff of fresh and sanitized air – still maintaining appropriate distance and a sense of patience, mirth and, of course, hope.
1 See Robert Conti and Peter Petesch, Snakes Off a Plane, Littler Insight (Dec. 3, 2020).
2 See ‘Counselor, you have no pants on;’ lawyer caught in his underwear, Mexico News Daily (July 18, 2020).
3 Lest you think they were the same as polo shirts, the internet would scoff at your (and our) ignorance.
4 See Daniel Finnegan, Survey says: 10% of people on your Zoom sessions aren't wearing pants, Triad Business Journal (May 15, 2020); See also Eleanor Ainge Roy, New Zealand councillor caught without trousers during Zoom meeting, The Guardian (May 5, 2020).
5 The “service introduction movie” is worth watching: https://youtu.be/q_C6ZKpZ_m0.
6 Do French office workers even know how to wipe pastrami from their computer monitors or fish Cheeto crumbs (the Mimolette kind), much less slippery snails, out of their keyboards?
7 Carol Kuruvilla, Ethical Vegan’s Beliefs Deserve To Be Protected Just Like Religious Beliefs: U.K. Judge, Huffington Post (Jan. 6, 2020).