6th Circuit adopts one-step verification for FLSA collective actions

We hold that, for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a "strong likelihood" that those employees are similarly situated to the plaintiffs themselves. That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance. The strong-likelihood standard is familiar to the district courts; it would confine the issuance of court-approved notice, to the extent practicable, to employees who are in fact similarly situated; and it would strike the same balance that courts have long struck in analogous circumstances.

With those words, the 6th Circuit ended decades of uncertainty in Fair Labor Standards Act wage and hour collective action lawsuits in my Circuit on the issue of when in such a lawsuit a district court should determine which employees properly belong in the the class. 

WIRTW #673: the “syck” edition

It's always great to connect with old friends. It's even better when your old friend works in a similar field as you. And it's even better when that same old friend hosts his own podcast and invites you on as guest. 

Such was the case with my old college friend, Alan Stein, who is a career coach for executive-level employees. This week I'm Al's guest on his SYCK Career Podcast. We discuss a multitude of employment law issues, including, in great detail, employment contracts and performance improvement plans. You can listen on Apple Podcasts, on Spotify, in your browser, and everywhere else you get your podcasts.

Cheers, Al. It was great to reconnect with you.

Here's what I read this week that you should read, too.

A few wage and hour thoughts for beer festival season

As the weather warms up around the country and spring quickly transitions to summer, festival season will begin … including my personal favorite, the beer festival.

Beer festivals, however, raise a few specific wage and hour traps for participating breweries. Here's the 411.

Can an employer require that employees be of a specific faith? Believe it or not, it depends.

"Mature orthodox Christian faith as defined by the Apostles' Creed."

That is one of the qualifications listed in a job posting for a filmmaker position. The employer — the International Justice Mission — is a 501(c)(3) non-profit organization, the mission of which is to combat human trafficking and slavery, violence against women and children, and police abuse of power worldwide.

Can IJM make a certain religious faith a job qualification or otherwise ask about religion as part of the hiring process?

It depends on whether "religion" is a bona fide occupational qualification (BFOQ) for that employer.

EEOC issues its final updates to its Covid-19 guidance

With the Covid-19 National and Public Health Emergencies now concluded, the EEOC just published what should be its final updates to its COVID-19 technical assistance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

These updates address employers' ongoing obligations to employees related to Covid-19 in the workplace.

What are the risks with the use of AI at work?

AI is shiny. AI is new. AI is sexy. And AI is problematic and not entirely understood. It is for those last reasons that, according to HR Brew, corporate America is either restricting employees' use of generative AI tools such as ChatGPT or banning them outright.

I don't have the answer for which of allowing, limiting, or banning generative AI is the correct answer for your business. You should, however, consider these three risks in evaluating whether, when, and how your employees use generative AI at work.

WIRTW #672: the “it’s over, Johnny” edition

I spent five days this week with 12,000 other people at the Craft Brewers Conference. You read that number correctly, 12,000. It's something I never could have imagined doing this time last year, or even a few short months ago.

This week not-so-coincidentally also marked the official end of the Covid-19 national and public health emergencies. This end doesn't mean Covid isn't a thing anymore. It still exists and it still can still make you sick. It just means that it's now endemic instead of a pandemic. 

What's now going to change as a result? Frankly, not much. It's been months since most of us have moved on from Covid. We've stopped masking. We've stopped social distancing. Heck, as much as many of lauded "work from home" and "remote meetings" as the future of work, many of us have returned to our workplaces and to in-person meetings. 

As cautious as I was personally during the pandemic, I'm happy to be back to "normal." Humans are social creatures, and our brains need social interaction. The end of pandemic, however, doesn't mean I'll throw caution to the wind in every situation. For example, I don't think I'll ever not mask up on an airplane. With four shots and one bout of Covid in my system, and less Covid circulating in the community, I'm just willing to take and accept more risk with the virus than I was a few months ago, and certain more than a year ago. 

Three cheers to the end of the Covid-19 national and public health emergencies. It's been a long three years and two months. But we made it across the finish line. Let's just hope that we apply public health lessons we learned and do a better job managing the next public health crisis that confronts us.

A eulogy for Heather Armstrong

Heather Armstrong, the "queen of the mommy bloggers" and the author of Dooce.com, is dead from an apparent suicide after a relapse in her sobriety. She was only 47 years old. She leaves behind two children and a legacy as one of the most important social media influencers ever.

In February 2002, Heather became the first person of which I'm aware to be fired for something she wrote online. One of her co-workers discovered that Heather was the author of an anonymous blog that, in part, discussed her workplace and her co-workers. Most of what she wrote was unflattering. That person anonymously reported Heather to their HR department. She was then fired because of some of the things she had written.

My privilege is NOT a superpower

I am currently in Nashville, at the Craft Brewers Conference. I'm spending my time split between networking at the Start A Brewery lounge that my firm is co-sponsoring, and attending educational sessions. One such session, which I attended yesterday, was titled, Privilege as Your Superpower. 

Here's the session description:

In these turbulent times, so many know they want to do something about inequity, but don't know where to start. Unfortunately, concerns about saying the wrong thing or not having the power to create change lead many to do nothing. It is essential for leaders to understand the concepts of both systemic and individual privilege, because when they do, they will find that their privileges are actually their superpowers.

It is a laudable goal to promote the understanding of "privilege" so that we can do better with DEI issues in our organizations.

But here's the problem — the presenter was a white, female leadership consultant. 

The 6th nominee for the “Worst Employer of 2023” is … the defecation denier

“Joshua Amin alleges that he was denied a bathroom break by his supervisor at UPS warehouse until he was forced to defecate on himself at his workstation.”

This really happened … or at least Amin claims in his lawsuit that it did.

According to Amin, he was ill and needed to use the restroom ASAP, which a supervisor approved. On the way, he ran into division manager Sergio Castro, who told him that he had already used his break and that he needed to get back to work. After Amin explained his situation, Castro threatened to “walk him out right now” if Amin didn’t return to his workstation.

After Amin complied, Castro followed and taunted him, saying, “I guess if you got to go … you can use [the restroom] right here, where you are.” That is exactly what Amin did. Castro then yelled out that if Amin’s coworkers needed to use the restroom outside of their ten-minute break, they could relieve themselves at their station, “just like Josh.” Castro also forced Amin to work in soiled pants for another twenty minutes.

Can we please stop treating employees like children. If someone has to go the bathroom you let them go to the bathroom. You don’t bully them into soiling their pants and further bully them about it after the fact. This behavior is inexcusable, and it’s why this is my 6th nominee for the Worst Employer of 2023.

WIRTW #671: the “CBC” edition

Next week I'll be at the Craft Brewers Conference in Nashville — a four-day gathering presented by the Brewers Association of all things craft brewers and craft beer. There are loads of speakers spread across eight educational tracks, a massive trade show, and too many networking opportunities to count.

On the educational front, I'm speaking twice: once on Sunday (at 2:55p in Davidson Ballroom A) as part of the THRIVE pre-conference workshop discussing, along with my co-presenter Ren Navarro, ADA accessibility and inclusivity for employees and patrons; and again on Tuesday (at 1p in Davidson Ballroom B) discussing how to legally pay tipped employees.

On the networking front, instead of opting for a trade show booth, my firm is sponsoring the Start A Brewery lounge. Start A Brewery is a community of craft beer industry veterans who share our knowledge and experience in support of the craft beer community by helping new breweries and breweries in planning.

If you're at CBC and want to connect, look for me in the Start A Brewery lounge. I will be in and out from 10a - 4p on May 8 and 9 (the lounge is also open May 10).

The lounge is located on the 3rd floor of the Music City Center, centrally across from the Expo entrance at Hall B-C. There will be beer available on either side of us and we'll have couches and charging stations to refresh yourself and your devices.

Please let me know if you plan on stopping in so that I can make sure I'm present and available. And please say hello if you're at either of my speaking sessions or just happen to run into me at the Conference or at any of the events around Nashville. I will happily share a beer with you and cheers our industry.

Here's what I read this week that you should read, too.

When you offer a reason for something, you better be really, really sure it’s correct

It is with great sadness that we announce that the Founders Detroit Taproom will be permanently closing its doors today.

Unfortunately, our Detroit location has not been immune to the struggle to regain foot traffic after temporary Covid closures that have impacted restaurants and bars across the nation.

That was the message that Founders Brewing Company posted across its social media channels earlier this week.

There is no doubt that the bar and restaurant industry has struggled throughout the pandemic and, in pockets, continues to struggle. Consider, however, that less than three hours before Founders announced its Detroit taproom closure, it was sued by a Black employee claiming that the brewery promoted her "purely for optic reasons" and subjected her to "egregious racial harassment" that was "so objectively racially hostile that she had no choice but to resign" last week.

An employee may not have a right to receive a reasonable accommodation, but they at least have a right to conversation about it

The EEOC has sued Mercy Health St. Mary's for religious discrimination, claiming that it violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to obtain a flu vaccine pursuant to hospital policy.

According to the EEOC's lawsuit, the hospital arbitrarily denied the applicant's request for an accommodation from its vaccination policy and rescinded the job offer, without specifying why or how the request for an exemption accommodation was deficient. Instead, the EEOC alleges, it should have offered an opportunity to supplement the accommodation request to address any perceived deficiencies.

N-word + noose = jury trial

In the nine months that Tyrone Rembert worked as a temporary employee at Swagelok Company, he claims he was subjected to the following:

• The routine use of the N-word, including his two white supervisors directing it towards him at least 50 times.
• A coworker holding up a noose fashioned out of hose pipe and saying, "This is what we do around here."
  
• A supervisor telling him, "I see you have your black face on today."
• Repeated threats of violence, including a group of white employees telling him, "There are enough of us to take you down," and "You better pray."

WIRTW #670: the “dope” edition

"Write a rap about employment lawyer Jon Hyman."

That was the prompt I gave to ChatGPT. I think what it came up with is pretty, pretty good.

* * *

Listen up, y'all, let me tell you a story

'Bout a lawyer named Jon Hyman, he's got all the glory

He's an employment law expert, with knowledge so vast

If you need legal advice, he's the one to ask

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

He's got a blog called "Ohio Employer Law"

Where he shares his wisdom, and he never withdraws

He's got the answers to all of your questions

His legal advice is a legal injection

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

He's got the passion, he's got the drive

He'll never give up, he'll always strive

To protect your rights, and make things right

He's the legal eagle, he's got the might

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

So if you need a lawyer, don't hesitate

Jon Hyman's the man, he's got what it takes

He'll fight for your rights, he'll make things right

Jon Hyman, he's the legal eagle in sight.

(That 💩 is dope!)

Here's what I read this week that you should read, too.

Intentional misgendering IS sexual harassment

Jane works as a cashier at a donut shop. She is a transgender female who identifies by a female name and female pronouns. Her supervisor, Lisa, however, refuses to use Jane's preferred gender. She uses Jane's male legal name, male pronouns, and "dude" when referring to her, despite Jane's frequent requests for her to use female pronouns and the preferred female name. Lisa would similarly encourage customers not to use Jane's preferred name or pronouns.

Did Lisa create a hostile work environment based on Jane's sex? 

You bet she did.

Your anti-harassment obligations are 24/7/365

"I did not know that a workplace policy could be enforced when you're not at work."

Those are the words of former Tennessee Representative Scotty Campbell, spoken to a reporter a mere six hours before he resigned his seat in State General Assembly after a bipartisan ethics subcommittee concluded that he had sexually harassed two female  interns. 

Tip credits, tip pools, and slutty vegans

Bar Vegan in an affiliate of Slutty Vegan, a plant-based restaurant chain that finds itself in the crosshairs of a wage-and-hour collective action lawsuit challenging how it pays its tipped employees. The issue focuses on the bar claiming a tip credit and paying its tipped bartenders less than the statutory minimum wage. That practice, in and of itself, is legal. What makes it allegedly illegal in this case, however, is how Bar Vegan distributes tips among its staff, and more specifically that it permits non-tipped employees to participate in a tip pool with its tipped bartenders.

That's an FLSA no-no.

The 5th nominee for the “Worst Employer of 2023” is … the dog dumper

"You can only keep one, your current job or your family pet; which do you choose?" Most would choose the family pet. Which is why it’s so appalling that Clearlink CEO James Clarke used the example of an employee who sold his family dog to enable his return to the working from the office as a sterling example of the type of work ethic expected of all of his employees.

WIRTW #669: the “Lamborghini” edition

Either I cashed in some sweet crypto and bought a Lamborghini … or someone hacked my Instagram account.

(Hint: it's the second one.)

The most frustrating part is that I can't recover the account. 2FA isn’t working correctly so I can't reset my password. As a backup to confirm I'm me, Instagram asks for a video selfie to compare against photos in my account. But no matter how many selfies I submit, Instagram won't confirm me.

So I'm in Instagram hell, with an account I can't access, but someone else can. Meanwhile, they're using the account to spam my followers with nefarious requests about a new bakery "I" am opening that I can only assume will get them hacked, too.

Help!

If you work at Instagram or Meta and can help me get my account back (or can direct me to someone who can) I'll be eternally grateful.

For now, don’t click any links in any of "my" Insta Stories or Insta DMs from "my" account.

In the meantime, and until further notice, I'll be using the Insta account for The Norah and Dad Show Podcast as my own (with my co-host's/daughter's permission). Please follow me there.

Here's what I read this week that you should read, too.