Employment Law Blog Carnival – Season of Giving Edition

Employment Law Blog Carnival – Season of Giving Edition



This month I have the privilege of compiling the Employment Law Blog Carnival (ELBC). What’s that, you ask? Answer: it is a blog post that compiles the best Human Resources and Employment Law articles in one space, all neatly tied together around a special theme. Since the holidays are here, my theme highlights ten local and national charities. I know of some of these organizations personally, while others I came across as I wrote. As the end of the year approaches, consider including contributions to these or other charities as part of the holiday spirit.

Mandatory disclaimer: all of these articles are for informational purposes and should not be considered legal advice or forming an attorney-client relationship. Now, onwards to this month’s brilliant articles and the organizations I associated them with. Click the image to go to each organization’s home page.

Charity Navigator
Due Diligence/Research

Charity Navigator is the first organization I want to highlight. This is the place to go to do your due diligence on any charity/non-profit. The organization provides ratings for organizations with over $1 million in revenues. There are top ten lists for most popular or up and coming organizations, descriptions for organizations’ mission statements, financial statements, and even lists of similar organizations.

Charity Navigator’s focus on due diligence for gift giving and top ten lists brought to mind the following blog posts:

At Fitzpatrick on Employment Law, Robert Fitzpatrick discusses “The Gift That Keeps On Giving“, a case from the 3rd Circuit that he calls “a virtual plaintiffs’ Christmas tree with many a bright bauble for 2014 and beyond.” This detailed blog post discusses the 3 day mailing presumption in EEOC claims, how plaintiffs can demonstrate that an employer used a pretext for discrimination, and the range of damages a court may impose independent of the evidence offered by the claimant.

At the HR Observations Blog, Michael Haberman exclaims, “Steal this Picture, I Dare You! No, he is not encouraging theft. On the contrary, the post provides a cautionary tale of a costly penalty as well as basics of copyright protection, public domain works, and fair use. This post hit close to home because originally, I had planned on copying and pasting each organization’s logo from their website. That should be “fair use”, right? Perhaps. But I’m an employment lawyer, not an intellectual property lawyer. Better to be safe than sorry, which is why I am borrowing Attorney Robin Shea’s method of using and attributing publicly licensed pictures available through Wikimedia Commons.

The year-end is a great time to look back and reflect. Looking back at 2013, which workplace story would you consider the most outrageous? The most eye-popping? It’s okay if you don’t remember all of them. Lorene Schaefer’s Win-Win HR blog lists them and asks you to “Vote Now: Who was the Most Naughty in the Workplace in 2013?

Feeding America
Hunger Relief

The holidays always make me think of meals together with family. Of course, feeding ourselves is an essential year round task. Feeding America, formerly America’s Second Harvest, is a nationwide network of food banks that provides assistance to more than 25 million people, including nine million children and about three million seniors. The organization gathers and distributes over two billion pounds of food a year!

Speaking of something essential, at the Employment Essentials blog, Vanessa Goddard dishes a fabulous poem titled “Twas A Year To Remember: A Holiday Treat“. I won’t ruin the lyrical wit by giving readers a taste of what is covered. But trust me, the poem is as delightful as any sugar plum treat.

Porchlight, Inc
Homeless Shelter & Human Services

Another essential during the holidays, especially considering the freezing single digit or below temperatures in the Midwest, is housing. Here in Madison, WI, Porchlight provides emergency shelter for the homeless. In addition, the organization provides food, employment services, counseling, and affordable transitional and permanent housing. Every year the organization provides over 420 women, men and children with over 100,000 nights of shelters. Its motto deserves special mention: “A helping hand, not a hand out. A second chance. A warm bed. Hope. Opportunity.”

Readers of Donna Ballman’s Screw You, I’m Going Home blog know that employees sometimes quit or get fired from work. A lingering concern for them  as they search for new opportunities may be the amount of negative information that can come out via a reference check. Donna’s latest post, “Can My Employer Trash Me In References?” addresses employer obligations and limits when responding to reference checks.

Reference checks are also on Stuart Rudner’s mind. At the Canadian HR Report he writes, “Provide a Reference, Please!” Stuart discusses why employers should not be afraid of providing references and why providing a reference can even benefit a former employer.


Toys For Tots

One of the things that makes the holidays joyous and festive is the look on kids’ faces when they see their Christmas presents piling up and when they’re tearing the wrapping paper open to get to them. The U.S. Marine Corps Reserve Toys For Tots Program spreads that Christmas cheer to children in need who might otherwise not receive a gift.

For better or worse, the holiday season inflames some people, who in turn must inflame back. Life now imitates art as state capitols host Festivus displays. If you missed out on the pop culture development of Festivus, take a look at Jon Hyman’sA Festivus for the Rest of Us (at work)“, at the Ohio Employer’s Law Blog. Besides providing an amusing history of the “holiday”, Jon examines whether an employer may legally prohibit Festivus celebrations in the workplace.

Jon’s discussion sheds light on a solemn Festivus tradition: the airing of grievances. The National Labor Relations Board also values employees’ ability to air grievances and it wagged its finger at an employer that made employees sign an agreement prohibiting class actions of any sort, whether before an agency, judge, or arbitrator. The employer appealed the NLRB decision and the 5th Circuit provided its ruling recently. John Holmquist discusses the case at the Michigan Employment Law Connection.  In “The D.R. Horton Arbitration Saga: Now What?“, John provides insights into how the NLRB will respond after the ruling and whether employers can continue limiting class actions via mandatory arbitration agreements.

None of the HR folks I know have told me what they asked Santa to bring them. I wonder, have any wished that sites like Facebook would just disappear from the workplace? Between holiday/Christmas shopping and football playoffs being right around the corner, just how much time are employees logging on social media? At the Connecticut Employment Law Blog, Daniel Schwartz answers a direct question posed to him: “My Employee is on Facebook Four Hours a Day. What Do I Do?

In addition to the “War on Christmas” chatter, objections to nativity scenes, and counter-protests with Festivus poles, the holiday season is the time for joyous holiday parties! At the Manpower Group’s The Employment Blawg, Mark Toth provides statistics on the types of parties employers are hosting, along with tips on “How to Have a Holiday Party Without Going to Jail“.

Make-A-Wish Foundation


One organization that brings good cheer to kids year round is the Make-A-Wish Foundation. The organization grants the wishes of a child diagnosed with a life-threatening medical condition. It has helped one child rescue Gilligan from the uncharted isle, connected a call from Spiderman so he could ask Electron Boy for help, honed an Ace’s dog-fighting skills at the Top Gun Academy, and most recently, turned San Francisco into Gotham City so Batkid could foil the Riddler and Penguin’s plans. Holy outstanding memories, true believers!

All this talk of comic book characters cues up Philip Miles’ Lawffice Space blog. He writes about white male employees at Archie Comics filing discrimination claims after the CEO, a woman, kept referring to them by their private parts. I would hope the CEO would know better than to make a meathead comment like that (I know, wrong Archie!) but perhaps she missed the mandatory anti-discrimination/sexual harassment training. More incredible is the alleged defense: that white males are not a protected class under employment discrimination laws. Not true, Virginia. Philip explains why in “Yes, White Males Are a Protected Class“.

American Civil Liberties Union (ACLU)

Civil Liberties & Civil Rights

The good folks at the ACLU are some of my favorite real world heroes. The organization promotes equality, freedom, justice and fairness by defending the liberties in the U.S. Constitution’s Bill of Rights. It is vigilant about legal changes that undermine those protections and educates the public on why those protections matter. Last year, I believe the organization was involved in six cases before the U.S. Supreme Court, ranging from voting rights, DNA extraction at arrest, and the landmark decision that partially struck down the Defense of Marriage Act (DOMA) and paved the way for federal recognition of same sex marriages. I discussed the employment impact of the DOMA case in an earlier post, “Spousal Rights After DOMA“.

Wounded Warrior Project

Any discussion of heroes and gratitude would be incomplete without remembering the efforts and sacrifices of members of the Armed Services. We’ve got many military veterans returning from services after Afghanistan and Iraq. The Wounded Warriors Project strives to help service members and veterans who incurred a physical or mental injury, illness, or wound, as a result of military service on or after September 11, 2001. The organization’s mission is to “foster the most successful, well-adjusted generation of wounded service members in our nation’s history.”

There are, of course, strong federal employment protections for veterans and employers need to avoid discriminating against veterans who return to the workforce. However, Robin Shea highlights on the Employment and Labor Insider blog that there are times when even a former service member’s actions justify discipline or termination. Find out the details in her post, “Sometimes You Have To Fire Your ‘Star.’ Here’s Why“.

ABC For Health
Healthcare Advocacy & Benefits Assistance

Navigating the healthcare system is no small matter. Since 1994, ABC for Health in Madison, WI has been helping link children and families, particularly those with special needs, to health care benefits and services. Its mission is to provide patients with the information, advocacy tools, legal services, and expert support they need to secure health care coverage. The organization helps patients understand insurance eligibility requirements and initiate administrative appeals when benefits are denied, it works to increase the number of covered children, and it engages in litigation to secure coverage.

While patients have a difficult time navigating health insurance requirements, their doctors have a difficult time navigating the requirements of non-compete agreements. Are physician non-competes enforceable? Should they be void for violating public policy? Shouldn’t the patient have a right to use a doctor of her choice? Elizabeth Favro at the Non-Compete Counsel blog addresses these questions in her post, “The Doctor Is In (or Out)? Physician Non-Compete Agreements“.

American Red Cross
Disaster Relief

2013 saw its share of destructive natural disasters, the most recent one being the typhoon in the Philippines. Whether the natural disaster is domestic or international, the American Red Cross springs into action to help with the relief efforts. In some instances, it has also taken a proactive approach, by working with its sister organizations in other countries to develop first-responder capabilities and to teach disaster rescue skills and essential first-aid skills.

There’s no smooth way to transition from discussing the harm from a natural disaster to something comparable in the workplace. Rather, I am comforted that there is nothing so tragic to report. Instead, I switch to a workplace issue that could be anything from a nuisance to a financial disaster for employers. What if an employer’s supervisors or officers were personally liable for minimum wage or overtime violations under the Fair Labor Standards Act (FLSA)? Over at The Employer Handbook, Eric Meyer explains why the idea is neither theoretical nor far-fetched. His piece,”Your President/CEO May Have To Pay Your Company’s Wage and Hour Debts Herself“, should give HR professionals a persuasive tool the next time they recommend a wage and hour audit.

Over at the Emplawyerologist, Janette Levey Frisch also has the FLSA on her mind. Janette asks, “What Can the FLSA, the US Supreme Court and Lady Gaga Teach Us About Overtime Pay?” Janette writes about how Lady Gaga’s personal assistant was paid a $75,000 salary. In return, the assistant had to travel the world and the 7 seas and be available 24/7, including at times having to sleep in Lady Gaga’s bed so she could be available when the artist awakened. After three years of such work, the assistant claimed more than $300,000 in unpaid overtime. So was she an exempt or nonexempt employee? And did Lady Gaga have good reason to worry about the overtime claim? Review Janette’s post to find out.


In closing out this ELBC edition, I want to give some thought to the future. Earthjustice is a non-profit public interest law firm that takes on high impact cases to enforce environmental laws. The organization focuses on preserving wildlife and public lands, limiting or eliminating toxins from the environment, and promoting clean energy and alternatives to fossil fuels.

What does the future hold for the workplace? At the Small Biz HR blog, Ari Rosenstein gives us a two-part sneak peek into legislative changes coming into effect in California. The 2014 California Labor Law Updates, Part 1, covers wage and hour and leave benefits. The 2014 California Labor Law Updates, Part 2, covers changes in discrimination, retaliation, and immigration protections.

Lastly, Sharlyn Lauby at the HR Bartender chats it up with fellow bloggers and workplace enthusiasts to ask about “The Top HR Compliance Issues for 2014“. Whether you care to venture a few guesses or want to jump right to the predictions I am sure you will find the insights helpful in planning 2014 projects.

Happy holidays, everyone!

Author: Attorney Nilesh P. Patel



Attributions and Image Licenses

Charity Navigator: By http://www.charitynavigator.org/index.cfm/bay/content.view/catid/39/cpid/138.htm [CC0], via Wikimedia Commons

Feeding America: By English: Cpl Aubry L. Buzek [Public domain], via Wikimedia Commons

Porchlight: By Oxfordian Kissuth (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Toys For Tots: By U.S. Navy photo by Mass Communication Specialist 2nd Class Maebel Y. Tinoko [Public domain], via Wikimedia Commons

Make-A-Wish Foundation: This image or file is a work of a U.S. Air Force Airman or employee, taken or made as part of that person’s official duties. As a work of the U.S. federal government, the image or file is in the public domain.

ACLU: Joe Mabel [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Wounded Warrior: By SFC Tyrone C. Marshall Jr. [Public domain], via Wikimedia Commons

ABC For Health: By Tomasz Sienicki [user: tsca, mail: tomasz.sienicki at gmail.com] (Own work) [Public domain], via Wikimedia Commons

American Red Cross: By Patsy Lynch (This image is from the FEMA Photo Library.) [Public domain], via Wikimedia Commons

Earthjustice: By Earthjustice (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons