What does it mean to be "similarly situated" for purposes of proving discrimination?

The Ohio Department of Public Safety fired Morris Johnson, an African American state trooper, after he sexually harassed multiple women while on duty. He claimed that his termination was because of his race, and pointed to David Johnson, a White trooper, who he claimed committed similar harassment but was not fired.

Dream on — lawsuit by Aerosmith drummer highlights the legal risk of "fitness for duty" exams

Joey Kramer, Aerosmith's founding and longtime drummer, is suing his band mates after they blocked him from joining them at upcoming high-profile events, including this weekend's honor as the 2020 MusiCares Person of the Year and its Lifetime Achievement Award at this weekend's Grammys.

Kramer claims that Steven Tyler, Joe Perry, Tom Hamilton, and Brad Whitford are not allowing him back in the band following a temporary disability from minor injuries he suffered last year. According to TMZ, Kramer claims the band required him to audition to prove he was "able to play at an appropriate level" before he could regain his drummer role. He further claims that in this audition is unprecedented in the band's 50-year history, during which each of other members had to step away for various reasons.

This story got me thinking about an employer's rights when an employee seeks to return to work after a medically-related leave of absence. 

You can't prove age discrimination if you're replaced by someone older

Crescent Metal Products fired Donald Tschappatt for a variety of instances of poor work performance. He made "negative comments" about co-workers. He stood around doing nothing and disappeared from his work area. He took extended bathroom breaks. And he made various assembly and packing errors.

After the company fired the 55-year-old Tschappatt, he sued for age discrimination.

The problem with Tschappatt's claim? Crescent Metal Products replaced him with someone six years older. That's not a great fact for an employee claiming age discrimination.

WIRTW #583 (the “Portugal (not the man)” edition)

Last year I asked y’all to share your tips on travel to Italy. And you came through. So, I thought I’d try again this year, with Portugal. We’ll be there for 8 days in late March, and are planning to visit Lisbon, Sintra, and Porto.

If you’ve been—

• What other towns are worth visiting?
• Can’t miss things to see and do?
• Must eat foods / restaurants?

Thanks! I figure it never hurts to crowdsource your vacation planning.

Here’s what I read this week:

“OK Boomer” makes its Supreme Court debut

Yesterday, the Supreme Court heard oral argument in Babb v. Wilkie, which will decide whether the “but-for” causation standard of proof applicable to private-sector employees in age discrimination claims under the ADEA also applies to federal-sector agency employees.

Even for this employment-law geek, not the most scintillating of cases.

That is, until Chief Justice Roberts (a Boomer) posed this question to the plaintiff’s counsel during oral argument:

Frivolous litigation has a price … sometimes a big price

In 2005, Monika Starke filed a charge of discrimination with the EEOC alleging that her employer, CRST Van Expedited, Inc., subjected her to sexual harassment. The EEOC expanded that initial charge into a federal-court lawsuit over whether CRST engaged in sexual harassment against myriad of its female driver trainees.

What followed was 14 years of litigation, several trips to the court of appeals, one trip to the U.S. Supreme Court, and an attorney-fee award of over $3.3 million against the EEOC for frivolous, unreasonable, or groundless conduct in the filing and prosecution of the underlying claims.

DOL provides employers much needed clarity on joint employment

Joint employment is a legal theory in which the operations of two employers are so intertwined that each is legally responsible for the misdeeds (and the liabilities that flow from those misdeeds) of the other. It’s also a legal theory with which federal agencies and courts have struggled over the past several years.

CBS News misrepresents an employer’s obligation to accommodate an employee’s pregnancy

I watched with great interest yesterday story on CBS Sunday Morning about an employer’s obligation to accommodate an employee’s pregnancy. The report told the stories of various women who lost their jobs because their employers refused to reasonably accommodate their pregnancies, all in the context of a call to pass a federal law mandating reasonable accommodations for pregnant workers.

According to CBS News: “[U]nder the current federal law, while employers are prohibited from firing or refusing to hire pregnant workers, they aren’t always required to make any on-the-job accommodations, such as offering more bathroom breaks or temporary desk jobs.”

That statement, however, distorts and undersells the current state of the law.

WIRTW #582 (the “Rock Off” edition)

On Feb. 1, my daughter's band, Fake ID, will compete in the 2020 Tri-C High School Rock Off. The Rock Off is in its 24th year and is one of the biggest (and most prestigious) competitions for high school rock bands anywhere.

Tickets are only $10, include full access to the Rock & Roll Hall of Fame (where the event is held, and usually a $28 admission ticket on its own), and help support the band you buy them from. Email me if you'd like tickets.

Here's what I read this week.

Ohio legislature refuses to move on LGBTQ employment protections despite strong state-wide, bipartisan support to the contrary

There is no law in the state of Ohio that prohibits employers from discriminating against employees based on their sexual orientation or gender identity.

The Ohio Fairness Act—otherwise known as House Bill 369 and Senate Bill 11—seeks to change this legal abomination.

The 2nd nominee for the “worst employer of 2020” is … the uncaring chief

Three posts into 2020 and we already have our second nominee for the year’s worst employer. And this one is just plain awful.

From Salt Lake City’s Fox 13 News:

A mother is filing a lawsuit against a Salt Lake City-based company after she claims they fired her once they learned her son had cancer. 

Federal appeals court orders NLRB to determine whether workplace harassment laws trump the National Labor Relations Act

You might recall Constellium Rolled Products Ravenswood, a 2018 NLRB case in which the Board held that offensive graffiti scrawled on an employee’s timesheet (“whore board”) constituted a lawful exercise of protected concerted activity.

Recently, the D.C. Circuit Court of Appeals held that the NLRB shirked its responsibility by not considering addressing any alleged conflict between its interpretation of the NLRA and the Company’s obligations under state and federal equal employment opportunity laws to maintain a harassment-free workplace.

The 1st nominee for the “worst employer of 2020” is … the repeat, repeat offender

If there’s a better way of starting 2020 than with the first nominee for the year’s worst employer, I’m not sure what it is.

Meet Dru DiSilvestro, the manager at an electrical contractor in Elmer, NJ, accused of sexually harassing Kimberly North, a 23-year-old employee, while in the midst of litigation brought by another employee accusing DiSilvestro of flashing his penis and leaving a dildo on her desk. And that wasn’t even the first lawsuit accusing DiSilvestro of harassment. His employer settled another even earlier suit accusing him of sexually crude language.

’Twas the Employment Law Night Before Christmas

In what will become an annual tradition for my last post of the year, I bring you the holiday classic, ’Twas the Employment Law Night before Christmas.

To all of my readers, thank you for a great 2019.
I’ll see everyone on January 6, 2020, with fresh content to kick off the new year.

---

’Twas the night before Christmas, when all through the office
Not a creature was stirring, well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

WIRTW #581 (the “home invasion” edition)

“A Day in the Life,” by (Not) The Beatles

Woke up, fell out of bed
Dragged a Bic across my head
Found my way downstairs to make a cup
And looking up I noticed…
there were three elderly Asian people in my kitchen!

This actually happened to me Monday morning. And technically, it was two elderly Asian people in my kitchen and one in my bathroom. 

I had accidentally left the garage door open the night before, and they had accidentally wandered into the wrong house. After a lot of dog barking, and yelling, and confusion, they wandered out into the early morning darkness. I have no idea who they were, where they came from, or where they went. It was most definitely the strangest morning of my life, and maybe the strangest home invasion of all time.

Here’s what I read this week.

NLRB rolls back 2 key Obama era anti-management decisions

This week, the National Labor Relations Board decided two cases that rolled back key Obama era anti-management NLRB decisions.

• Apogee Retail LLC d/b/a Unique Thrift Store, which overturned Banner Estrella Medical Center and held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful.

• Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, which overturned Purple Communications and held that an employer can lawfully restrict employee use of its email system as long as it does so on a nondiscriminatory basis.

The Worst Employer of 2019 is…

After a year of gathering 20 very worthy nominees, whittling it down to 10 awful finalists, and compiling hundreds upon hundreds of your votes, today is the day to declare the Worst Employer of 2019.

While all of the year’s nominees were worthy adversaries, the winner truly stood head and shoulders above the competition. But, before naming the winner, let’s count down the non-winners.

Don’t forget to vote: Polls close at 11 pm tonight for the Worst Employer of 2019

If you haven’t yet voted for the Worst Employer of 2019, time is running out. Polls close at 11 pm tonight.

VOTE here

And come back tomorrow when I’ll announce the very worthy winner.

Do you know when you can collect employees’ genetic information?

Apple recently announced it will begin offering its employees free genetic testing through its subsidiary, AC Wellness (an entity Apple created last year to provide primary care services exclusively to its employees and their dependents).

According to CNBC, Apple is trying to move health care at its employee clinics “from reactive to proactive, as genetic tests can offer a window into health risks down the line. In some cases, patients can take preventative steps to reduce their likelihood of getting a disease.”

Medical experts have also speculated that this program could help Apple quietly test new products or ideas without risking leaks. And this is where my employment law Spidey sense starts tingling.

Court finds that the ADA does not protect employee’s dormant genetic condition

Sherryl Darby has the BRCA1 gene, otherwise known as the breast cancer gene, the best known gene associated with breast-cancer risk. Approximately two months after she started working as an administrative assistant at Childvine, an early childcare provider, Darby opted to have a double mastectomy to decrease her risk of developing breast cancer in the future. Two weeks later, Childvine fired her.

Despite the close-in-time link between Darby’s surgery and her termination, the district court dismissed her ADA lawsuit.

WIRTW #580 (the “I voted” edition)

Have you cast your ballot for the Worst Employer of 2019? Time is running short. The polls close Tuesday, December 17, at 11 pm.

VOTE here

Once you’ve voted, please download your official Ohio Employer Law Blog “I voted for the Worst Employer of 2019” badge and share on Facebook, Instagram, Twitter, LinkedIn, etc. Please tag your post with #worstemployer2019 so that I can more easily find it and feel the love.

And don’t forget to return on December 18 when I’ll announce this year’s big winner (or loser, depending on how you look at it).

Here’s what I read this week.

Just because you’re out on FMLA does not grant you a license to threaten your co-workers

“Hey pussy … I’m going to get you for what you did.”

Ordinarily, if one employee confronts another employee with a threat like the one above, you’d consider it grounds for termination. Maurice Darby, however, claimed that the fact that he made the threat while out on FMLA leave constituted grounds for retaliation after his employer terminated him.

The 4 things you cannot do to pro-union employees (hint: number 1 is fire them)

Four former Google employees claim that their ex-employer fired them Thanksgiving week in retaliation for their efforts to organize a labor union. According to CNBC, the NLRB is now investigating the firings. For its part, Google denies that anti-union animus played any roll in the firings.

We dismissed four individuals who were engaged in intentional and often repeated violations of our longstanding data security policies, including systematically accessing and disseminating other employees’ materials and work. No one has been dismissed for raising concerns or debating the company’s activities.

VOTE NOW for the “Worst Employer of 2019” — polls are open

All year long, I’ve been sharing examples of the worst employers in America. My goal? Compile them at the end of the year and then turn it over to you, my readers, to pick the worst of the worst.

Today is your opportunity to help pick the Worst Employer of 2019.

I’ve narrowed this year’s preliminary list down to my choice for the top 10 naughty employers.

Voting will take from today until December 17, at 11 pm. You will be able to vote for up to 3 choices.

I will then tally the votes, and, announce the highest recipient as the very worthy winner of the Worst Employer of 2019.

Vote, share this post with your friends, colleagues, and social networks, and, most importantly, learn something from the mistakes of these 10 very worthy, and cringy, nominees.

The ADA never requires an employer to create a position as a reasonable accommodation

Randona Johnson took a medical leave from his position as a process coach at a Ford assembly plant to deal with back pain, hypertension, and depression. After five months of leave, Ford moved Johnson to inactive status, with no active position at the plant. Two months later, Johnson reapplied for his old job and requested certain accommodations for his various disabilities. According to Ford, however, the assembly plant had no openings at that time, as was the case each time over the next several months Johnson reapplied. Ultimately, 15 months after Johnson first took medical leave, and eight months after he first re-applied, a position opened and Ford rehired him with his requested accommodations.

Johnson sued anyway, claiming in failing to rehire him earlier Ford unlawfully denied him a reasonable accommodation.

WIRTW #579 (the “blank slate” edition)

Next Saturday, December 14, Norah and her Fake ID bandmates will be traveling west to Elyria, Ohio, to play Blank Slate, a very cool all ages, all inclusive, and substance free club. Tickets are only $5 if you buy them in advance (here) or $7 at the door.

Here’s what I read this week.

Discrimination

• Sex and the CEO — via Jonathan HR Law
• Stuffing Discrimination Complaints Into Thanksgiving? Feast on these Cases — via Dan Schwartz’s Connecticut Employment Law Blog
• There’s retaliation, and then there’s locking the complainant in a walk-in freezer. (Allegedly) — via Eric Meyer’s Employer Handbook Blog
• Ohio Fairness Act Takes Important First Step in Ohio House Committee — via Ohio Chamber Blog
• LGBTQ Rights in Employment: Does it Boil Down to the “Bathroom Use” Question Again? — via BeLabor The Point

HR & Employee Relations

• Can Music Increase Your Workplace Productivity? — via HR Gazette
• It’s Perfectly Legal to be an Asshole. — via HR Examiner with John Sumser
• How harmful thought patterns about workplace bullying and mobbing may accelerate the aging process — via Minding the Workplace
• Going Back to Work After a Pregnancy Loss — via Harvard Business Review
• How do I talk to my coworker about her body odor? — via Ask a Manager

Technology

• Facebook built a facial recognition app that identified employees — via Engadget HD
• Shaping Better Workplaces Through Social Media Screening — via Workology
• Cybersecurity in the Age of AI and Why Cybersecurity Isn’t Only a Tech Problem — via Harvard Business Review 
• An Alarming Number of Software Teams Are Missing Cybersecurity Expertise — via Dark Reading
• Seeking Insurance for Cybersecurity-Related Losses — via The D & O Diary

Wage & Hour

• Big Media Finds out that Salary Secrecy is Dead. Spreadsheets Share Everything — via Evil HR Lady, Suzanne Lucas
• Compliance with FLSA Overtime Rule Changes 2020 — via Staffing Industry Analysts
• 11th Cir.: Arbitration Clause Requiring Fee/Cost Splitting Violates the FLSA — via Overtime Law Blog

Labor

• Fired Google Employees Vow Federal Labor Complaint — via Forbes
• The NLRB Rules that Unpaid Interns Are Not Employees Under the Act — via Hunton Employment & Labor Law Perspectives™
• NLRB’s LA Specialty Produce Decision Provides More Clarity on Employee Handbook Rule Standards — via Employment Law Worldview
• Buttigieg campaign staffers join union — via CUE, Inc.

OSHA & Safety

• Workers sue McDonald’s over workplace violence — via HR Dive
• McDonalds to Train Store Employees on Mitigating & Identifying Violence — via Blogging4Jobs
• Attorney Mental Health: ‘Thanksgiving’ Isn’t Just a Holiday — via Law.com - In-House Counsel
• Erasing the Workplace Stigma of Behavioral Health Conditions — via EntertainHR
• Fifth Circuit Provides New Grounds for Employers to Pursue Late Notices of Contest to OSHA Citations — via Workplace Safety and Environmental Law Alert Blog
• How to Take Advantage of OSHA’s ‘Employee Misconduct’ Defense — via HR Hero Line
• OSHA Signals Its Regulatory Priorities in Fall Agenda — via OSHA Law Blog
• No Medical Marijuana in Ohio BWC’s Drug-Free Workplace — via Labor & Employment Law Navigator

Does it violate the ADA to work an employee in excess of a work restriction?

Rita Morrissey is a licensed practical nurse who worked for 15 years for The Laurels of Coldwater, a skilled nursing and rehabilitation center. In 2012, she injured her back outside of work, and submitted a note to her employer from her primary care physician limiting her to no more than 12 hours of work per shift. Coldwater refused the accommodation, telling Morrissey that it would not accommodate any medical condition that did not stem from a work-related injury.

Do you know how to calculate the “regular rate of pay” for your employees? (hint: probably not)

The Fair Labor Standards Act requires that employers pay their non-exempt employees one and one-half times the “regular rate of pay” for any hours worked in excess of 40 in any work week. For an employee paid a straight hourly rate, this calculation is simple and straight forward. A $10 per hour employee earns an overtime rate of $15 per overtime hour. Easy peasy.

Often times, however, employees aren’t just paid a straight hourly rate. Uh oh.

The 20th nominee for the “worst employer of 2019” is … the malignant mogul

The 20th (and final) nominee for the Worst Employer of 2019 is Alki David, heir to the Coca-Cola bottling fortune and owner of several media firms.

The evidence?

This week, a jury awarded over $58 million to a female employee who accused him of thrusting his pelvis into her face, simulating oral sex, moaning, and zipping up his pants and walking away saying, “Thanks, M.K.”

As sure as today is Cyber Monday, your employees are shopping from work

Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, with over $9.4 billion in sales.

And, guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.

WIRTW #578 (the “credibility” edition)

Yesterday, the NFL upheld the indefinite suspension of Cleveland Browns’ defensive lineman Myles Garrett, who last week assaulted Pittsburgh Steelers’ quarterback Mason Rudolph on the field with his helmet.

At his suspension hearing, Garrett attempted to mitigate his misconduct by claiming that Rudolph had used a racial slur on the field.

Garrett’s problem? It was the first time he had raised that claim in the week following the incident. He didn’t raise it on the field. Or after the game. Or to the media. Or at any time prior to his hearing. Even his teammates were caught off guard by the claim. And that’s a huge problem for the credibility of his defense.

In harassment cases, credibility is everything. And if employee waits until a trial or hearing to raise a claim of harassment, his (or her) credibility, as well as their claim, is shot.

Here’s what I read this week.

“Hairstyle discrimination” laws: a solution in search of a problem

I fully embrace the irony of a local news broadcast holding me out as the expert on hair discrimination. 👨🏻‍🦲

Irony notwithstanding, here I am on last night’s 6 o’clock news discussing why we don’t need to ban workplace hairstyle discrimination. (Big thank you to WEWS’s Mike Brookbank for reaching out and for the interview.)

Is your business prepared for a cyber attack? (probably not, but I can help.)

I’d like to share three scary cybersecurity statistics with you.

1. 60 percent of small businesses fail within 6 months of a cyber attack.
2. 72 percent of small businesses rate their ability to mitigate cyber risks, vulnerabilities and attacks as other than highly effective.
3. 90 percent of data breaches are caused by human error.

These numbers mean that most of you reading this post work for a company that is not doing nearly enough to mitigate your cyber-risk. Coupled with the truth that data breaches are a when issue, and not an if issue, these numbers also mean that everyone’s data is way too exposed, and no matter what you are currently doing in this space, everyone can do more.

Meyers Roman is here to help.

It’s not realistic to expect employees not to discuss politics at work, but it is to require them to do so professionally

According to a recent survey conducted by SHRM [pdf], American workers cannot hide from politics at work.

• 42% of U.S. employees say they have personally experienced political disagreements at work
• 44% say they have witnessed political disagreements at work
• 34% believe that their workplace is not inclusive of differing political perspectives
• 12% report they have personally experienced political affiliation bias or discrimination based on their political views
• 56% state that political discussions at work have become more common over the past four years

Gay man claims he’s the victim of intentional discrimination because of his sexual orientation … and that’s the least of his employer’s problems

Wesley Wernecke, an ex-employee of New York event planning company Eventique, claims in his recently filed lawsuit that the company intentionally alienated him, ostracized him, and shut him out of the business after its CEO learned Wernecke was gay.

NBC News shares the details of the allegations in Wernecke’s lawsuit.

WIRTW #577 (the “side hustle” edition)

If I had gotten paid for my appearance on Matt Christensen‘s Fraud Not Frog podcast, I could classify it as a side hustle. But I didn’t; I appeared gratis to discuss the legal concerns businesses and employees need to consider when an employee wants to engage in a side hustle.

You can listen here, or better yes, listen by subscribing to Matt’s podcast in your app of choice.

Here’s what I read this week.

EEOC settlement provides expensive lesson on including social media in your anti-harassment policies and training

EEOC v. Nabors Corp. Services involves serious allegations of racial harassment, including the following.

Being addressed at work by co-workers with racial slurs such as “nigger”; being exposed at work to offensive, racially derogatory social media images and material circulated by co-workers and managers; being exposed to racist graffiti, including racial slurs and derogatory drawings concerning Black persons at company facilities in and around Pleasanton, Texas; being referred to as members of the “colored crew” by employees and managers; and in some instances, being subjected to intimidation and physical threats by employees because of race, Black.

The company recently resolved this case, agreeing to pay 10 employees a total of $1,225,000 to settle the EEOC’s claims of racial harassment, race discrimination, and retaliation.

Celebrating “World Kindness Day” at work #WorldKindnessDay #ChooseKindness

Today is World Kindness Day. Introduced in 1998 by the World Kindness Movement, it highlights good deeds in the community by focusing on the positiveness of our common bond of kindness.

It is a day worth celebrating, and one that we sorely need and is sadly necessary.

#MeToo does not always equal #FireHim

Just because an employee complains about harassment does not mean that if the allegations are founded the employer must fire the harasser.

Consider, for example, Abbood v. Texas Health & Human Servs. Comm. (5th Cir. 11/7/19).

The 19th nominee for the “worst employer of 2019” is … the barbaric boss

The headline is scary enough.

South Carolina Man Sentenced to 10 Years in Prison for 

Forcing Man with Intellectual Disability to Work at Restaurant

But for this nominee, the devil lives in the details.

WIRTW #576 (the “Dolly” edition)

A couple of months ago, in the 568th version of “What I Read This Week,” I posted 5 of the best songs about work. I had no idea when I listed Dolly Parton’s “9 to 5” how divisive Dolly would be. In my wildest dreams I never imagined anyone could take issue with an American icon such as Dolly Parton. Who doesn’t love Dolly? Apparently, however, some of you exist.

Thankfully, I feel vindicated with my inclusion of Dolly. WNYC recently launched Dolly Parton’s America, a nine-part podcast series tracing Dolly’s roots from East Tennessee’s Great Smokey Mountains to country music superstar to cultural icon. It’s a fascinating listen, especially the second episode, all about her metamorphosis from “dumb blonde” sidekick to Porter Wagoner to the biggest star in country music.

I highly recommend you add Dolly Parton’s America to your podcast queue.

Here’s what I read this week.

“Smoking gun” email revives employee’s disability discrimination lawsuit

Maryville Anesthesiologists fired Paula Babb, an experienced Certified Registered Nurse Anesthetist, because it thought she suffered from a visual impairment.

How do we know why it fired her? Because the day after Babb’s termination, one of her co-workers confirmed it in an email (written at the direction of one of the employer’s owners).

Recent decision about a positive drug test has a lot to say about the future of medical marijuana and employer drug testing

Richard Turner worked as a crane operator for Phillips 66. The company’s substance abuse policy allowed for random and post-accident drug testing for “Cannabinoids, Cocaine, Opiates, Phencyclidine (PCP) and Amphetamines,” and mandated termination for any positive test.

On April 24, 2017, Turner was selected for a random drug test, and provided a urine sample. Three days later he was involved in a workplace accident and was again tested.

The following day, Phillips 66 learned that Turner’s April 24 sample tested positive for amphetamines. As a result, the company fired him.

When it comes to racial preference, the customer is never right

An Illinois Buffalo Wild Wings has fired all employees involved in an incident in which staff acceded to the request of a Caucasian “regular” to relocate a group of African-American diners to a different table. The reason—he “didn’t want to sit near black people.”

NBC Chicago has the details.

An employee’s disability is not a “get out of jail free” card for workplace misconduct

Does a medical leave of absence grant an employee a free pass for pre-leave misconduct discovered during the LOA? This question is squarely at the center of the court’s decision in Williams v. Graphic Packaging International (6th Cir. 10/31/19) [pdf].

WIRTW #575 (the “3.5” edition)

Being a parent is the world’s hardest job. But it’s also the most world’s most rewarding one. Which is why we keep doing it. The rewards are worth celebrating.

Last Friday night, I got to watch my daughter and her band absolutely blow the glass-pyramid roof off the Rock & Roll Hall of Fame at Cleveland Magazine’s Best of Cleveland Party.

“An example,” you ask? Here’s their latest original song, called “3.5” (which, in this proud dad’s very unbiased opinion, rips).


I love seeing the looks on people’s faces when the realize the sounds they are hearing are coming from a bunch of kids. At the Best of Cleveland event, I really loved seeing the band that followed them transform from, “We have to follow some kid band” (which was the look on their faces before soundcheck), to “How in the hell are we supposed to follow that?!” (which they actually said as they were walking onto the stage for their set.)

Here’s some photo memories of the evening, set to the soundtrack of a local radio show’s A+ review of Fake ID.


If you’re so inclined to check out all of Fake ID’s goings-on, they have a website, FakeIDofficialband.com.

Here’s what I read this week.

Must you tell employees when you are surveilling their devices?

It’s unusual these days for an employee not to have a device issued by their employer, or on which they can access their employer’s information — cell phones, tablets, laptops, and other computing devices.

Conventional wisdom (California notwithstanding), is that if the employer owns the device, the employee has zero privacy rights in that device, its use, or the information stored on it.

That conventional wisdom, however, might be changing.

“Tone down your gayness” = $20 million

A jury has awarded a St. Louis County police officer nearly $20 million over allegations that his superiors repeatedly denied him a promotion because they thought him too gay.

According to The Washington Post, the sergeant had more than 15 year of experience when he applied for a promotion. “The command staff has a problem with your sexuality,” he was told. “If you ever want to see a white shirt [i.e., get a promotion], you should tone down your gayness”, which was “way too out there.” The St. Louis Post-Dispatch adds that a captain had also referred to the plaintiff as “fruity.”

6 tips to avoid turning your costume party into an HR nightmare

Even this Halloween Scrooge

can get into the spirit

Halloween is this week. Truth be told, Halloween is one of my least favorite holidays. It always has been and always will be. I never liked it, even as a kid. Sure, all the candy was fun, but I just never got into the whole dress-up thing. As an adult, I like it even less. Not to be a Halloween scrooge, but I can’t even get into the holiday for my kids.

A lot of people, however, are into Halloween, and some are really into Halloween. It’s the holiday on which we spend more than any holiday other than Christmas.

And, a lot of your workplaces will be having Halloween celebrations. Some will request that you dress up for the occasion. If you happen to work in one of the workplaces, you have my sympathies. You also have my top 6 tips to avoid turning your innocent costume party into an HR horror show.

The 18th nominee for the “worst employer of 2019” is … the fecal loving fast-food manager

Kari Phillips did not feel well when she awoke prior to her shift at an Oregon City, Oregon, McDonald’s. She called the restaurant to request that someone cover her shift because of her stomach ailment, but a manager told her she had to come in, but would allow her to use the bathroom whenever needed.

According to Willamette Week, however, that’s not what happened once Phillips arrived at work.

WIRTW #574 (the “hero” edition)

What's a hero? I'm not sure how to define one, but I certainly know one when I see one. And earlier this week, I got to see one.

Dr. Harrison Schmitt is one of only 12 men to have walked on the moon. He was an astronaut on Apollo 17, the last NASA mission to land on the moon. He was also a United States Senator, chair of the NASA Advisory Council, and professor of engineering physics. And, at least according to his remarks, he still actively works with NASA.

He also has a very well developed sense of humor, as he was happy to share this clip of Norm McDonald asking David Letterman how it's possible that any of the Kardashians are more famous than someone who walked on the moon.

I was captivated listening to his remarks about his work on the Apollo lunar project.

Here's what I read this week.

OSHA publishes new guidance on distracted driving

The reaction time of someone texting while driving is 35 percent worse than someone driving without any distractions. Compare that figure to the 12 percent deficit a drunk driver faces, and you begin to understand why distracted driving is so dangerous. Indeed, in 2018 alone, 4,637 people died in car crashes related to cell phone use.

OSHA understands this danger as well. Thus, in conjunction with Drive Safely Work Week (which occurred earlier this month), OSHA announced an educational campaign calling on employers to prevent work-related distracted driving, with a special focus on prohibiting texting while driving.

Is this the worst defense ever to a discrimination claim?

Litigation is painful. It takes a lot of time, costs a lot of money, and has lots of variables that you just can’t control. Especially when the client goes off the rails and says something so ludicrous that you might as well just pack it in and cut a check.

As an example, I offer Evans v. Canal Street Brewing. It’s a race discrimination currently pending in federal court in Detroit. According to the Detroit Metro Times, the plaintiff, who is African-American, alleges “a racist internal corporate culture,” including the repeated used of the “N word”, and  management naming its printer the “white guy printer” and  the printer for lower-tier employees the “black guy printer.”

The employer’s defense? The restaurant’s general manager, Dominic Ryan, claims that he did not know Evans was black.

What’s really at stake when the Supreme Court decides LGBTQ rights under Title VII

Sometime next Spring the Supreme Court will announce its decision on whether Title VII’s prohibition against sex discrimination implicitly includes LGBTQ employees. It’s poised to be the biggest employment law case of the past three decades. And not just because LGBTQ discrimination is such a hot-button, high-profile issue.

One of the issues the Department of Justice has asked SCOTUS to revisit is whether Title VII’s prohibition against sex discrimination encompasses sex-based stereotypes.

That “sex stereotyping” is no different than “sex discrimination” has been the law of the land since the Supreme Court decided Price Waterhouse v. Hopkins 30 years ago.

What might the American workplace look like if SCOTUS actually reverses Price Waterhouse?

Take a look at workplace training Ernst & Young just required of its female executives (per HuffPost).

Women at Ernst & Young Instructed on How to Dress, Act Nicely Around Men

My dog was victim-blamed … and I don’t like it

On Friday, Dante, our five-month-old puppy, was attacked while in the (what we thought was the) safety our our fenced-in yard.

New neighbors recently moved in next door with their not-so-nice German Shepherd. They’ve warned us that he doesn’t get along well with other dogs, and, for that reason, they either tether him in their backyard, or monitor him while outside. At the time of the attack he was flying solo, and it ended badly for Dante. No one actually saw what happened, but either Dante was puppy-exploring through the slats in our fence, or the other dog lunged through the slats, or a combination of both. Either way, the neighbor’s dog was definitely the aggressor, and Dante definitely limped away with the lone injury.

Before staples                          After staples

WIRTW #573 (the “last laugh” edition)

When I go, I hope I have enough forethought to go out like this.

A dead man pranked his family at his own funeral by using a recording to scream ‘Let me out!’ as they put his coffin into the ground

Here’s what I read this week.