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This marks the 10th anniversary of The National Law Journal‘s annual tribute to wackiness in labor and employment law, during which we have honored 125 bizarre claims of discrimination, stupid personnel decisions and remarkable calls by government agencies and courts. This has been another banner year. THAT OLD VOODOO MAGIC 10. The Mount Sinai-St. Francis Nursing and Rehabilitation Center in Miami asked the National Labor Relations Board to throw out a union election on the ground that a series of voodoo signs may have influenced the Haitian-American work force to vote for the union. Workers testified that they saw lines of pennies, half-empty water cups and a union supporter twisting black beads in her hands prior to the election. A hearing officer of the NLRB was not swayed, and rejected Mount Sinai’s objections. After all, what union campaign does not involve smoke, mirrors and voodoo magic? THAT’S WHY THEY CALL IT WORK 9. The U.S. District Court for the District of Kansas ruled that Jerry Ormsby’s habit of sleeping on the job — even if he was prohibited from leaving the site — did not qualify as work for purposes of overtime pay. The court found that COF Training Services Inc., a halfway house in Osage City, Kan., had no obligation to compensate Ormsby for the “sleep time” when he was performing no routine duties. Gosh, whatever happened to an hour’s sleep for an hour’s pay? MASSAGING THE LAW 8. The 7th U.S. Circuit Court of Appeals ruled that Kerry Stinnett, a former manager of Iron Works Gym/Executive Health Spa Inc. in Belvidere, Ill., who sued for sexual harassment, was unable to show that the gym employed enough workers to be subject to Title VII of the 1964 Civil Rights Act. The court found that the health spa portion of the business actually was a house of prostitution that did not keep accurate personnel or payroll records. “Not surprisingly, the spa’s payroll records are somewhat sketchy,” observed the court. CHICKEN IN THE POT, OR VICE VERSA 7. Carlos Ayala, an employee at a Kentucky Fried Chicken in Mill Valley, Calif., was arrested after a customer at the drive-in window received the wrong side order with his chicken dinner. Instead of biscuits, he got two bags of marijuana. He gave the drugs back to Ayala, got his biscuits and called the police. When arrested, Ayala was carrying a small amount of marijuana, a hand gun and about $500. Officials said that Ayala may have been selling marijuana to customers who used a secret code word. Could it have been “biscuit”? THE BONDAGE OF EMPLOYMENT 6. The California Court of Appeal affirmed a $10,600 jury verdict for sexual harassment of Zachery Briseno, an employee of Diamond Video World Inc., an “adult” video store. He claimed that his supervisor’s expectation that he experiment with sex toys sold in the store created a hostile work environment. Briseno testified that his supervisor placed him in a “sex harness that was sold at the store and then display[ed] in the store a photograph she took of plaintiff in the harness.” She also used a “horse riding crop” on him when he made mistakes on the cash register and committed other unmentionable strange acts. The lower court keenly observed, “I don’t think he wanted to get trussed up in this sexual swing and have his picture taken. I think he was required to do so.” CRIME DOESN’T PAY, EXCEPT WHEN IT DOES 5. Richard N. Shick — while employed as a caseworker in the Illinois Department of Public Aid — robbed a convenience store in Joliet, Ill., armed with a sawed-off shotgun. Afterward, he sued the department, claiming that he was discriminated against because of his disabilities and his sex, the trauma of which caused him to commit the robbery. The jury awarded him $5 million in damages and $166,700 in back pay. The U.S. District Court for the Southern District of Illinois partially vacated and dismissed the judgment, but awarded $303,830 in front pay, even while he serves a 10-year sentence. Thankfully, the 7th Circuit reversed. HE MUST HAVE MISSED THE SIXTIES 4. An arbitrator in Oklahoma City ruled that an employee who tested positive for marijuana did not violate the employer’s drug abuse policy. The employee had, at his second job, eaten brownies he found in a refrigerator. Unbeknownst to him, they were laced with marijuana. The arbitrator ordered the grievant reinstated with back pay, since his high was purely unintentional. A WELL MADE-UP WICCAN 3. Elizabeth Cornman sued her former employer, Mary Kay Cosmetics of Hanover Park, Ill. She claimed she was harassed by supervisors because she practices Wicca. Allegedly, after she revealed her Wiccan beliefs, management accused her of violating company policy, saying that Wiccans “are unchristian and … devil worshippers.” Cornman, however, worships air, water, earth and fire. She seeks $300,000 in damages for religious discrimination. EQUAL OPPORTUNITY CRUELTY 2. Mary Quinones (nicknamed “Military Mary”), a supervisor at National Revenue Corp. in Columbus, Ohio, who touched and sexually propositioned a gay male employee, did not violate Title VII. The conduct, wrote the court “while unpleasant and perhaps cruel,” was neither severe nor pervasive enough to constitute sexual harassment. Since Quinones screamed at and threatened all subordinates, “her conduct was merely even-handedly offensive.” HEMORRHOIDS ARE NOT A DISABILITY 1. Charlotte Davis, a store manager for BellSouth Mobility, failed to convince a federal judge in Alabama that her acute hemorrhoid condition constituted a protected disability under the Americans with Disabilities Act. “To characterize such a common malady as hemorrhoids, even severe hemorrhoids, as a disability would thwart the purposes of the ADA.” Thank heavens the court didn’t sit too long on that one. Gerald D. Skoning is a senior partner at Chicago’s Seyfarth Shaw (www.seyfarth.com), where he specializes in representing management in labor and employment law matters.

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