Scaling the Cliffs of Insanity
Battling Rodents of Unusual Size
Facing torture in the Pit of Despair.

Welcome to the Employment Law Blog Carnival, a monthly collection of the best employment law blog posts all in one place.

This month, we’re hosting with the Princess Bride edition.

Inconceivable!

Grandson: A book?
Grandpa: That’s right. When I was your age, television was called books. And this is a special book. It was the book my father used to read to me when I was sick, and I used to read it to your father. And today I’m gonna read it to you.
Grandson: Has it got any sports in it?
Grandpa: Are you kidding? Fencing, fighting, torture, revenge, giants, monsters, chases, escapes, true love, miracles…
Grandson: Doesn’t sound too bad. I’ll try to stay awake.

Are employment applications out of date? Ann Kontner for the Steptoe & Johnson Employment Essentials Blog helps you figure out in Does Your Employment Application Need to be Updated?

Westly: Give us the gate key.
Yellin:  I have no gate key.
Inigo Montoya: Fezzik, tear his arms off.
Yellin: Oh, you mean *this* gate key.

Can An Employer Force You to Quit? – like on purpose? Donna Ballman, of Screw You Guys I’m Going Home, looks at severance, retaliation, and the potential advantages of being fired instead.

Inigo Montoya: I have some rope up here, but I do not think you would accept my help, since I am only waiting around to kill you.
Man in Black:  That does put a damper on our relationship.

What is an employee’s rights during pregnancy? Sharlyn Lauby of HR Bartender and I answer a reader’s question in Fired During Pregnancy Leave.  The short answer is don’t fire people on pregnancy leave.

[fencing]
Inigo Montoya: You are wonderful.
Man in Black: Thank you; I’ve worked hard to become so.
Inigo Montoya: I admit it, you are better than I am.
Man in Black: Then why are you smiling?
Inigo Montoya: Because I know something you don’t know.
Man in Black: And what is that?
Inigo Montoya:  I… am not left-handed.
[Moves his sword to his right hand and gains an advantage]
Man in Black: You are amazing.
Inigo Montoya: I ought to be, after 20 years.
Man in Black: Oh, there’s something I ought to tell you.
Inigo Montoya: Tell me.
Man in Black: I’m not left-handed either.

Janette Levey Frisch, The Employeroligist, is Making Sense of the EEOC Position on Confidentiality in Workplace Investigations and helps uncover the sometimes competing ,and mostly confusing, positions of the EEOC and NLRB. Maybe workplace investigations should just be considered trade secrets?

Miracle Max: You rush a miracle man, you get rotten miracles.

Can a task that only takes 15 minutes be so essential to a job that inability to perform it makes someone not “otherwise qualified” under the ADA? Eric Meyer at The Employer Handbook, explains a bizarre case where the answer was yes. Under the ADA even a 15 minute task may be an essential job function.

Man in Black:  All right. Where is the poison? The battle of wits has begun. It ends when you decide and we both drink, and find out who is right… and who is dead.
Vizzini:  But it’s so simple. All I have to do is divine from what I know of you: are you the sort of man who would put the poison into his own goblet or his enemy’s? Now, a clever man would put the poison into his own goblet, because he would know that only a great fool would reach for what he was given. I am not a great fool, so I can clearly not choose the wine in front of you. But you must have known I was not a great fool, you would have counted on it, so I can clearly not choose the wine in front of me.
Man in Black:  You’ve made your decision then?
Vizzini: Not remotely. Because iocane comes from Australia, as everyone knows, and Australia is entirely peopled with criminals, and criminals are used to having people not trust them, as you are not trusted by me, so I can clearly not choose the wine in front of you.
Man in Black: Truly, you have a dizzying intellect.
Vizzini: Wait till I get going! Now, where was I?

So the New York Times pronounces that age discrimination is worse than it was or it should be. And they think it’s worse than it is since the unemployment rate for older workers is lower than the unemployment rate for the general population. Then they say that lawyers won’t take ADEA cases because they are harder to prove. Dan Schwartz, of the Connecticut Employment Law Blog explains why that’s wrong:  The Times Says “Most Lawyers” Won’t Take Age Discrimination Cases Anymore. Really?

Buttercup: Westley, what about the R.O.U.S.’s?
Westly: Rodents Of Unusual Size? I don’t think they exist.
[Immediately, an R.O.U.S. attacks him]

What do head scarves, offensive tweets, unicorns, wage-hour claims, and Lady Gaga have in common? Nothing. And everything. Robin Shea of the Employment & Labor Insider makes an Employment law triple play: Islam and “the look,” loose tweets, Gaga.

Inigo Montoya: But, I promise I will not kill you until you reach the top.
Man in Black: That’s VERY comforting, but I’m afraid you’ll just have to wait.
Inigo Montoya: I hate waiting.

Jon Hyman Ohio Employer’s Law Blog reminds us that bio-breaks are not just a good idea, it’s a safety issue under OSHA.  When you gotta go, you gotta go: the right to workplace bathroom breaks

Vizzini: I can’t compete with you physically, and you’re no match for my brains.
Man in Black: You’re that smart?
Vizzini: Let me put it this way. Have you ever heard of Plato, Aristotle, Socrates?
Man in Black: Yes.
Vizzini: Morons.

Apparently being a complete lunatic during a discrimination mediation is grounds for termination, despite the mediation privilege and anti-retaliation laws. Hmmmm. Maria Danaher of Ogletree Deakins Employment Law Blog, explains: Firing of Employee After His Angry Outburst During Mediation Did Not Constitute Retaliation 

Miracle Max: You got any money?
Inigo Montoya: Sixty-five.
Miracle Max: I’ve never worked for so little. Except once, and that was a very noble cause.
Inigo Montoya: This is noble, sir. His wife is… crippled. His children are on the brink of starvation.
Miracle Max: Are you a rotten liar.
Inigo Montoya: I need him to help avenge my father, murdered these twenty years.
Miracle Max: Your first story was better.

Baseball, “performance enhancing substances,” and contracts worth millions. What else might be important in an employment situation? What if it wasn’t major league baseball and was a normal person . . . taking performance enhancing drugs at work . . . and lying about it? Jesse Dill of the Wisconsin Employer Lawyer Blog has a great discussion in What if Ryan Braun Was an “At Will” Employee?

Fezzik: We face each other as God intended. Sportsmanlike. No tricks, no weapons, skill against skill alone.
Man in Black: You mean, you’ll put down your rock and I’ll put down my sword, and we’ll try and kill each other like civilized people?

The opposite of faith is not doubt. It’s twitter. Your religious tweets apparently frighten and confuse people, including potential employers. I wonder of the Fail Whale’s real name is Big Data? Anyway, Lorene F. Schaefer of Win-Win HR explains the problem in Can You Say Discrimination? 28% of Recruiters React Negatively to Religious Posts/Tweets

Fezzik: Why do you wear a mask? Were you burned by acid, or something like that?
Man in Black: Oh no, it’s just that they’re terribly comfortable. I think everyone will be wearing them in the future.

Abercrombie and Fitch’s store manager gets it right allowing an employee to wear a religious head scarf. Corporate screws it up. And the EEOC wins the religious garb discrimination case. Bob Fitzpatrick Fitzpatrick on Employment Law gives you the story: EEOC Wins Summary Judgement in Religious Head Scarf Case

Inigo Montoya: I do not mean to pry, but you don’t by any chance happen to have six fingers on your right hand?
Man in Black: Do you always begin conversations this way?

Let’s see. Asking for the proper pay is perfectly appropriate. Then getting pissy, disrupting co-workers, and making a supervisor wait until you get off the phone saying: “I’ll eat your ass if you want me to, but I have to make this phone call first,” is not appropriate. It’s another amusing and disturbing Case of the Week post by Phil Miles of Lawffice Space: “Protected Activity” No Shield for Insubordination.

Inigo Montoya:  Is very strange. I have been in the revenge business so long, now that it’s over, I don’t know what to do with the rest of my life.
Westly:  Have you ever considered piracy? You’d make a wonderful Dread Pirate Roberts.

Stuart Rudner  at the Canadian HR Blog looks at How Independent Are Your Contractors?  “The ultimate question to determine if a given individual is working as an employee or as an independent contractor is deceivingly simple. It is whether or not the individual is performing the services as his own business on his own account.”

Grandson: Grandpa, maybe you could come over and read it again to me tomorrow.
Grandpa:  As you wish.