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Suffering Fools and Foolish Employment Stories Gladly

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This April Fool's Day we we look at 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" 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. 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.

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." 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." 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." 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."

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. 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." 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

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."

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. 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.

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, by unanimous consent. And we all slept more soundly henceforth, and our sources for sound life-coaching and refreshment still have job security.

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.

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.

The real question, left unanswered by the court, was "who barbeques in Minnesota in April?"

Still Less Embarrassing Than a Mistaken "Reply All"

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. 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.

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., 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.

Posted In: Quit, Resigned, Termination of Employment, etc.; Just for Fun; Fair Labor Standards Act (FLSA); Americans with Disabilities Act (ADA)

Want to know more? Read the full article by at Littler Mendelson

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