Employment & Labor Insider

Religious accommodation, the Oscars, non-competes, social media, Brian Williams versus Bill O'Reilly, workplace violence, and inspirational employees -- we have it all today! Here are some links about recent news and court cases involving the workplace, followed by some points for discussion if you'd like to comment.

Supreme Court justices seem to side with hijab-wearer against Abercrombie. Oral argument was held Wednesday in EEOC v. Abercrombie & Fitch, a case I've been following for some time. According to the EEOC, Samantha Elauf  - a woman who wore a Muslim hijab (head scarf) to her job interview - was rejected for employment at an Abercrombie store in Tulsa, Oklahoma, because the hijab didn't fit in with the retail chain's "look" policy. (Abercrombie has changed its policy since Ms. Elauf was declined employment.) The EEOC claims that Abercrombie discriminated against Ms. Elauf because of her religion and failed to reasonably accommodate her religious beliefs. The EEOC won summary judgment, but Abercrombie appealed to the U.S. Court of Appeals for the Tenth Circuit, which reversed and granted summary judgment to Abercrombie instead. According to the Tenth Circuit, Ms. Elauf was required to disclose to her interviewer that she was wearing the hijab for religious reasons -- otherwise, Abercrombie couldn't have known that its duty to avoid discrimination or make reasonable accommodations was triggered.

I disagreed with the Tenth Circuit decision in this post from 2013. The case is now at the U.S. Supreme Court.

According to news reports about Wednesday's oral argument, the justices on Wednesday seemed to side with Ms. Elauf and the EEOC -- including, notably, Justice Alito. (In other words, we may not get the usual 5-4 split.)

What do you think about this case? Does a store have the right to require employees to present an "image" and to reject applicants who deviate from that "image," even if the deviation is caused by religious beliefs, race, sex, age, or disability?

You go, girl! Patricia Arquette, who won the Oscar for Best Supporting Actress last Sunday for her role in Boyhood (which I've been meaning to see) came out in favor of equal pay for women. I like Ms. Arquette as an actress very much, but she and I do not see eye-to-eye on pay equity. (Not that I'm opposed to equal pay - I just think that unequal pay usually results from factors other than discrimination.) On a related note, I saw in yesterday's Washington Post that there is a pay gap in tech jobs in Kansas City, Missouri, and Arlington, Texas -- in those cities, women earn more than the men do.

What do you think about the causes of the pay gap? And, understanding that everyone has a right to an opinion and to express it, should we give any particular weight to the opinions of Hollywood celebrities about labor and employment law issues? If so, WHY?

Non-competes: Now, more than ever! The Washington Post reported this week on a study on non-compete agreements conducted by economists at the University of Illinois and University of Michigan. The study found that one in four workers has signed a non-compete in their lifetime and that approximately 12 percent are currently bound by one. In certain fields, such as sales, marketing, or technology, this is not surprising. But the study found that non-competes are also relatively common in personal care and services, and installation and repair. Despite the publicity that sandwich chain Jimmy John's got after some of its franchisees required sandwich makers to sign non-competes, the study found that only about 3 percent of workers in the food service industry actually had non-competes.

Registrations are still being accepted for the webinar that everyone's waiting for: "OFCCP's Final Rule Prohibiting LGBT Discrimination: Are You Prepared?" presented by Cara Crotty, co-chair of our Affirmative Action practice group. 1-2 p.m. Eastern, Tuesday, March 10. If you are a federal contractor, you need to be there!

On the pro-noncompete side, the study found that employers in states that enforced non-competes were more willing to invest in costly training and development, perhaps because they knew that employees were not free to jump ship to competitors.

Should employers be able to require lower-wage, lower-skilled workers to sign non-compete agreements? Is there any benefit that arguably outweighs the burden that this puts on employment mobility?

Should that dumb tweet cost you your job? There was an excellent article by Jon Ronson in the New York Times Magazine about ordinary people who became high-profile social media villains after some injudicious tweeting (either their own, or tweets about them). All were fired as a result.

Should these people have lost their jobs over these silly tweets, or in reaction to the social media mob? In Justine Sacco's case, I can almost see it because she was in public relations, and if a PR person doesn't know better than to tweet stupidly, then who should? But I feel a little sorry for her, too, and a lot sorrier for the non-PR people in the article (especially the tech guys, who weren't even using social media).  What do you think?

On a somewhat-related note, do you think that Brian Williams and Bill O'Reilly should be treated the same? Bloviate in the comments!

Pharmacist packing heat kills armed would-be robber. Last Wednesday, a masked man waited in line briefly at the counter at Good Pharmacy in Pinch, West Virginia, and then pulled a gun and aimed it at the customers. Pharmacist Don Radcliffe, who had a concealed-carry permit, then pulled his gun and shot the would-be robber three times (the robber apparently didn't go down until the third shot). The robber was taken the hospital, where he died. The pharmacist went back to work 24 hours later but says he is still shaken by the incident. (No kidding!)

How do you feel about bringing weapons to work for self-defense and defense of others? Is that a deterrent to workplace violence, or does it increase the risk of a violent incident at work?

Employees of the month. Ron Kline celebrated his 50th anniversary with Mansfield Plumbing in Ohio. The 70-year-old father of 11 kids and grandfather of 38 has also been married for 50 years and has never taken a sick day. He has no plans to retire, and his boss says he wishes he could clone Mr. Kline.

I'm sure you've also heard the feel-good story about James Robertson, the 56-year-old factory worker in Detroit who was walking 21 miles to and from work every day for years (he didn't have a car, and the city bus routes didn't cover his entire trip). After his story was published in the Detroit Free Press, a student at Wayne State University started an online campaign to get donations to allow him to buy a car, and Mr. Robertson got approximately $350,000. He didn't even have to use the money to buy a car - a local Ford dealership gave him a 2015 Taurus. So sweet!

Except now poor Mr. Robertson is reportedly having to park his new car at the police station and is looking to move because of threats he's received. According to Mr. Robertson, an elderly neighbor who bragged about winning $20,000 in the lottery was murdered recently.

Let's hope that Mr. Robertson is finally able to get the life he deserves. But is crowdfunding the best way to help workers who are barely getting by?