United States: These Foolish Things – The Oddest Employment Issues Of The Past Year

Last Updated: April 12 2017
Article by Peter J. Petesch and Betsy Cammarata
"When the going gets weird, the weird turn professional."
—Hunter S. Thompson, Fear and Loathing on the Campaign Trail

Even outside the Capital Beltway, this has been a strange year. Those of us who handle labor and employment issues everyday often think we've seen it all—only to be proven wrong time and again. As April Fools' Day approaches, we pause to review some of the more bizarre labor and employment opinions and developments from the last year. They may be unbelievable, but they are also 100% authentic...

Oh, the Drama!

One cautionary tale reminds us that unchecked reality-TV-type behavior in the workplace can be more than a mere distraction.1 In this case, the plaintiff was allegedly terminated in part due to her connection to ongoing "office drama." Her coworkers spread rumors that she had attended a meeting with the chief executive officer while wearing a revealing (i.e., see-through) shirt but not a bra. The plaintiff conceded she was not fan of bras and did not wear one to that particular meeting. She disputed that she had shown the CEO her breasts, however, and reported the upsetting rumors to the corporate controller. Her employer allegedly did not support discipline against the coworkers and, instead, wrote up the plaintiff and then fired her, all within about three weeks of her complaint.

At the summary judgment phase, the district court noted the questions before it included whether the employer's consideration of "office drama" surrounding the plaintiff could support her claim for retaliation and whether the unwanted coworker gossip supported a claim for hostile work environment. The court sided with transparency, and the plaintiff, on both issues. Indeed, the court found that these facts were sufficient for the plaintiff's claims to survive—though (ahem) barely.

Onions and Flying Spaghetti Monsters

Oscar Wilde once wrote that "truth, in matters of religion, is simply the opinion that has survived." Two recent federal court opinions explored the sensitive boundaries of what constitutes a "religion" for purposes of accommodations. In the first case, out of Nebraska, an inmate sued prison officials for failing to accommodate his religion.2 The inmate belonged to the Church of the Flying Spaghetti Monster ("FSMism"). As a self-proclaimed Pastafarian, he claimed, among other things, entitlements to wear full pirate regalia while proselytizing, to a seaworthy vessel, to treat Fridays as holidays, and to wear a "Colander of Goodness"—that is, an actual colander—on his head.3 Facing the question of whether plaintiff's beliefs were entitled to protection as a religion, the court focused on three factors: (1) whether FSMism "addresses fundamental and ultimate questions having to do with deep and imponderable matters"; (2) whether FSMism is "comprehensive in nature," resembling a "belief-system as opposed to an isolated teaching"; and (3) whether FSMism could be recognized by "certain formal and external signs." The court held that FSMism did not need to be treated as a genuine religion by prison officials because it failed to satisfy these criteria.

A New York court came to a different conclusion when considering Title VII discrimination claims brought by the EEOC on behalf of employees of an employer that allegedly endorsed a program known as "Onionhead"4 or "Harnessing Happiness."5 The CEO instituted the program, which his aunt created, to serve as a multi-purpose conflict resolution tool. Employees objected to forced participation, however, because materials included references to God, demons, Satan, purity, and miracles. Evidence also showed employees were told to burn candles and incense to cleanse the workplace, and to chant or pray in their workplace. The New York court did not follow the Nebraska court's three-factor test, which is disfavored in the Second Circuit. Instead, the court asked whether a jury could find that: (1) the employer's belief in Onionhead was sincere; and (2) whether that belief is, in "the believer's own scheme of things, religious." Under that standard, the court readily found that Onionhead was religious in nature and allowed the plaintiffs' claims to proceed.

Beware the Mark of the Beast

A jury in West Virginia addressed yet another memorable religious accommodation claim.6 There, the plaintiff, who had worked at a coal mine for 35 years, refused to comply with a new policy at the mine—requiring employees to "clock-in and clock-out using a biometric hand scanner." The plaintiff requested a religious exemption to this policy, asserting he "feared damnation from its use." Specifically, the plaintiff believed the scanner "was part of an identification system and collection of personal information that would be used by the . . . Antichrist, as described in the New Testament Book of Revelation, to identify his followers with the 'mark of the beast.'" The employer denied his request even though an alternative had been developed, and threatened discipline (including discharge) if he repeatedly missed hand scans. After being assured this policy would be enforced against him, the plaintiff retired.

At trial, the jury concluded the employer failed to reasonably accommodate the plaintiff's sincerely-held religious belief that the scanner was immoral and represented "a showing of allegiance to the Antichrist." The jury also found the employers had constructively discharged the plaintiff. The court denied the employer's post-trial motion, upholding the jury's verdict and (beastly) award of nearly $600,000.

You Should Have Listened to Your English Teacher (or "The Milk Man Cometh")

Excitement understandably runs amok in overtime pay cases, and discourses on punctuation. No issue thrills grammar aficionados belonging to Garrison Keillor's Professional Organization of English Majors ("P.O.E.M.") more than the ongoing (never-ending?) debate over use of the Oxford comma. The "Oxford" or "serial" comma refers to the use of a second comma when reciting a list of three or more items.7 Proponents of the Oxford comma insist that it adds clarity—and an appellate court recently agreed.

The case, which NPR discussed in a full-length feature, involved claims for unpaid overtime compensation brought by dairy delivery drivers.8 Their employer argued an exemption in the state wage and hour law applied to the drivers, such that they were not entitled to payment for overtime. The exemption covers employees who perform work in "canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of . . . perishable foods."9 The employer interpreted this exemption as applying to workers who pack perishable foods and, separately, to workers who distribute such items, such as the drivers. The drivers, on the other hand, contended that the exemption extends to individuals who work in "packing" that is undertaken in preparation "for shipment or distribution" of perishable foods.

Upon awakening, the court explained, "if that exemption used a serial comma to mark off the last of the activities it lists, then the exemption would clearly encompass any activity that the drivers perform." In the absence of the Oxford comma, however, the statute was ambiguous. And, given that ambiguity, the court employed its default rule of construction, favoring liberal interpretation of wage and hour laws to effectuate their beneficial, remedial purposes. The court therefore adopted the drivers' narrower interpretation of the exemption and reversed the lower court's ruling for the dairy. The court held that "[i]f the drivers engage only in distribution and not in any of the stand-alone activities . . . [they] fall outside of the [exemption's] scope and thus within the protection of the Maine overtime law."

No commas were harmed in the making of this opinion.

We're Just Here for the Food

There are certain industries that tend to generate misclassification claims, where workers contend they are treated erroneously as independent contractors when they should be treated as employees. For whatever reason, exotic dancers are one such group that frequently brings misclassification actions—earning careful scrutiny from the judiciary.

In a case last year, an Ohio federal court assessed whether the plaintiffs, two exotic dancers, had been misclassified by their so-called "employers," an adult nightclub known as The Brass Pole and its owner.10 Using the "economic realities" test approved in the Sixth Circuit, the court considered numerous factors, including, among other things, the degree of skill involved for plaintiffs to perform their work, the plaintiffs' opportunity for profit or loss, the degree of control exercised by the nightclub management, and whether plaintiffs' services were integral to The Brass Pole's business. Although the defendants contested each factor, the court was not convinced.

Concerning the opportunity for profit or loss, for example, the court found that the evidence clearly showed the defendants bore the risk. The court reasoned that the defendants played the bigger role in drawing customers because they "chose the location of the business, set the business hours, maintained the facilities and aesthetics, maintained the inventory of food and beverages, and advertised." And, as for whether the dancers' work was integral to the nightclub, the defendants implied the plaintiffs' contribution to the enterprise was minimal. That position got a rise out of the court, which pointed out "[d]efendants have offered no evidence as to how exotic dancers were not an integral part of a bar doing business as 'The Brass Pole' and where exotic dancers performed at the club every night that it was open." The court ultimately granted summary judgment in the plaintiffs' favor, holding "[n]o reasonable juror could conclude that customers primarily came to the club for its other offerings, which included beer, liquor, and frozen burgers from Sam's Club."

An Arizona appellate court reached a similar conclusion in a workers' compensation case.11 There, the claimant was not an exotic dancer but regularly worked for a company that sold custom wrestling videos. Customers of the business selected female models/performers to appear in the videos, along with the length and the wrestling techniques to be featured. The claimant, who worked several days a week for the business, was injured during filming and sought workers' compensation. The court focused on the company's right to control the claimant's work in determining whether she was an employee or an independent contractor and, thus, whether she was entitled to benefits. The record demonstrated that the business supplied all of the equipment, including "the wrestling ring, the cameras, the costumes worn by the models/performers—30 to 40 bikinis and 20 one-piece suits—and various props used in filming the videos." Moreover, the business owner directed the videos, taught the wrestling techniques, instructed the claimant what persona to portray, dictated her hair color, and relied on the models/performers for his operation. In light of this evidence, the appellate court affirmed the underlying decision that the business exercised control over the claimant's work, rendering her an employee.

You Can Make Me Work, But You Can't Make Me Like It

Section 7 of the National Labor Relations Act—which generally applies to both unionized and non-unionized non-supervisory employees working in the private sector—grants employees "the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection."12 In recent years, the National Labor Relations Board ("Board") has become increasingly critical of workplace rules or policies that dissuade non-supervisory employees from exercising their rights to advance their mutual aid or protection. From the employer's perspective, one recent case exemplifies how the Board has stretched this proposition too far.13 This time, the Board assailed what Friedrich Nietzsche once called "that roguish and cheerful vice, politeness."

In the case, the hospital terminated the employment of two nurses following investigation into communication problems, which were identified as issues contributing to a scenario resulting in a patient's death. The hospital terminated their employment after learning they had exhibited negative, intimidating, and bullying behavior toward other nurses.

The administrative law judge and the Board found several terms of the hospital's code of conduct unlawful and repressive. Specifically, the Board took issue with the policy's prohibitions on conduct:

  • that "impedes harmonious interactions and relationships";
  • such as "[v]erbal comments or gestures directed at others that exceed the bounds of fair criticism";
  • including "[n]egative or disparaging comments about the moral characters or professional capabilities of any employee or physician made to employees, physicians, patients, or visitors"; and
  • such as "behavior that is . . . counter to promoting teamwork."

Despite the seemingly innocuous, commonsense nature of these rules designed to promote polite discourse, the Board struck the provisions as illegal because employees "would reasonably construe the language to prohibit Section 7 activity."

The Dude, from the Coen brothers' The Big Lebowski, might have remarked: "yeah, well, that's just, like, your opinion, man."

In an actual dissent, however, Member Philip Miscimarra—now the Acting Chairman—more eloquently urged the Board to abandon this approach. He argued that "reasonable work requirements have become like Lord Voldemort in Harry Potter: they are ever-present but must not be identified by name" lest they be stricken. He encouraged a more tempered approach, which would drop the assumption that facially-neutral rules "operate, first and foremost, to extinguish . . . protected activity" and recognize that workplace policies may have legitimate purposes.

You Want Paid Leave for What?

Finally, we draw your attention to a couple novel proposals for leave time, both of which might come into play for employees hoping to expand their families.

First, a town in Sweden is considering a measure to boost the local birthrate.14 Officials in Overtornea proposed legislation that would provide one hour of paid break time each week for all municipal employees to go home and attempt procreation. Supporters of the bill argue that granting employees such leave time would nourish intimacy in couples, improve employee morale, and reduce stress. Detractors point out that it would be impossible to enforce such a policy, may not be the best use of taxpayer funds, and is potentially intrusive and embarrassing. Moreover, according to one opponent, one hour simply would not be enough time to . . . fulfill the purposes of the leave.

Second, employees of a Scottish brewery are treated to another special leave benefit.15 BrewDog, which is scheduled to open its first U.S. location in Ohio this year, offers one week of paid "paw-ternity" leave to employees worldwide. This "puppy parental leave" is available for employees who need to care for and bond with new puppies or adopted rescue dogs. In implementing the policy, the brewery acknowledged that it can be tricky to juggle both work and caring for a furry, four-legged arrival. It also allows both staff and patrons to bring their pooches to all bar locations. The new policy has been praised by dog lovers everywhere, though Grumpy Cat and the offspring of Mr. Bigglesworth have retained counsel.

And, with that, we wish you a very Happy April Fools' Day! Without a doubt, truth is stranger than fiction, or, as the venerable Hunter S. Thompson wrote, "it never got weird enough for me."

Footnotes

1 Baez v. Anne Fontaine USA, Inc., 2017 U.S. Dist. LEXIS 1630 (S.D.N.Y. Jan. 5, 2017).

2 Cavanaugh v. Bartelt, 2016 U.S. Dist. LEXIS 48746 (D. Neb. Apr. 12, 2016); see Darren E. Nadel & William E. Trachman, Claims to Accommodate Flying Spaghetti Monster-ism Hit the Wall in Nebraska Court, Littler Insight (Apr. 25, 2016).

3 Perhaps disappointingly, no pasta appears to be eaten in FSM ritual, though colanders are commonly associated with draining pasta. FSMism developed out of opposition to the teaching of intelligent design in public schools. FSMism's original proponent argued that it is just as likely that a Flying Spaghetti Monster set the universe in motion as it is that God did so.

4 "Onionhead," of course, should not be confused with the 1957 Andy Griffith movie, or the notorious drug dealer of the same name who operated in the 1980's in Manhattan's Chinatown. There is no apparent nexus to Eraserhead.

5 U.S. Equal Opportunity Emp't Comm'n v. United Health Programs of Am., Inc., 2016 U.S. Dist. LEXIS 136625 (E.D.N.Y. Sept. 30, 2016); see Darren E. Nadel & William E. Trachman, Company Practices "Onionhead"—Employees Cry Reverse Religious Discrimination, Littler Insight (Oct. 13, 2016).

6 U.S. Equal Opportunity Emp't Comm'n v. Consol Energy, Inc., 2016 U.S. Dist. LEXIS 15475 (N.D. W. Va. Feb. 9, 2016). The defendant-employers have appealed.

7 For example, the Oxford comma appears between "dork" and "or" in the following sentence: I dream about the Oxford comma, and I don't mind at all if you call me a dweeb, a dork, or a geek.

8 O'Connor v. Oakhurst Dairy, 2017 U.S. App. LEXIS 4392 (1st Cir. Mar. 13, 2017).

9 Me. Stat. tit. 26, § 664(3)(F).

10 Lester v. Agment LLC, 2016 U.S. Dist. LEXIS 52916 (N.D. Ohio Apr. 20, 2016).

11 Percy v. Industrial Comm'n of Ariz., 2017 Ariz. App. Unpub. LEXIS 248 (Ariz. Ct. App. Mar. 7, 2017).

12 29 U.S.C. § 157.

13 William Beaumont Hosp., 363 N.L.R.B. No. 162 (Apr. 13, 2016).

14 Dan Bilefsky & Christina Anderson, A Paid Hour a Week for Sex? One Swedish Town Considers It, N.Y. Times, Feb. 24, 2017, at A6.

15 BrewDog, Dog Days: Taking Time Out for Paw-ternity Leave, BrewDog Blog (Feb. 13, 2017), https://www.brewdog.com/usa/lowdown/blog/dog-days.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Peter J. Petesch
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.