During a lunch meeting of Senate Republicans yesterday, Majority Leader Mitch McConnell told his constituency they should pass the bill. He did so, however, in the most Mitch McConnell way possible.
A number of my members think there were considerable shortcomings in the House bill. My counsel to them is to gag and vote for it anyway.
For the time being, I have rebranded the Ohio Employer Law Blog as the Coronavirus Law Blog. I’ll be using this space to offer daily updates on what is happening regarding this public health emergency. Everything is moving and changing so quickly, and, frankly, nothing else seems to matter right now. When we all come out the other side, I will happily resume your regularly scheduled updates on worst employers and everything else.
So here’s where are on the morning of March 17, 2020 (Happy St. Patrick’s Day).
In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.
I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?
I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?
How does the interaction between the FFCRA’s paid family leave and paid sick leave work?
I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?
What about self-employed people? What relief is there for us?
If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?
And, in Ohio, no mass gatherings of more than 100 people (to include auditoriums, stadiums, arenas, large conference rooms, meeting halls, cafeterias, or any other confined indoor or outdoor space, but not offices, restaurants, factories, or retail or grocery stores). And no school at least for the next three weeks.
So what now? Our new normal is very abnormal. And it’s going to stay this way, at least for the immediate future.
As it stands, the best advice remains to practice social distances, stay home if you’re ill, follow the recommended hand washing and other “good hygiene” protocols, and don’t travel unless you absolutely (and I mean absolutely) have to.
Finally, above all else, please be flexible, understanding, and kind. If there was ever a time to prioritize the human issues, it’s now. Illnesses, quarantines, and closed schools will strain the workplace. I promise you that they are straining your employees more. The more nimble and empathetic we can be, the less this will hurt.
One last thing. When the time comes (and it will come) when we can resume our pre-coronavirus lives, get out and support small businesses, live music, the travel industry, and everyone else whose livelihood was impacted by COVID-19. They are really going to need it.
The difficulty in defending certain wage-and-hour cases is that employers are often asked to prove a negative. “I worked __ number of hours of overtime,” says the plaintiff employee. “Prove that I didn’t.” If the hours are for unclocked work, the employer often lacks documentation to refute the employee’s story. Which, in turn, leads to a case of "I worked / no you didn't." That, in turn, creates a jury question, the risk of a trial, and a settlement (since very few employers want to risk paying the plaintiff’s attorneys’ fees if the employee wins).
In Viet v. Le, the 6th Circuit Court of Appeals provides employers much needed relief from these extorting lawsuits.
As Ohio recorded its first three official coronavirus cases, I thought now is as good a time as any to share some COVID-19 resources I recently prepared, participated in, or will be participating in.
First, I recorded an episode of the SpheraNOW podcast where I discuss the risks and best practices for employers during this outbreak.
Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.
The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).
Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”
Life is often about competition. For example, I litigate for a living. Trials have winners and losers. We also compete for jobs, for college admissions, and for sports titles. And competition requires a winner and some losers.
Some things, however, we do just for the experience, even if that experience is built around competition.
Last weekend, my daughter’s band, Fake ID, competed in the finals of the Tri-C High School Rock Off. Even though they did not win the competition, they won the event. They played three songs (including two of their own originals) on stage at the Rock & Roll Hall of Fame in front of more than a thousand people. They earned a lot of new fans. They befriended other bands with whom they will be able to plan future gigs. As a finalist, they got to record a song in an amazing recording studio at Tri-C (stay tuned; their first single is coming soon, and I’ll be asking all of you to pre-save it on Spotify).
Before we dropped Norah off at the Rock Hall for the pre-event activities, I told her to have fun and play a great set, and that nothing else matters. She understood, and if you ask her she will tell it was mission accomplished.
Mistakes happen. Including in the context of employment
decisions. But not every mistake amounts to actionable employment discrimination. That’s the
lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she
had been stealing from one of the company’s clients.
If you’re Fox News reporter Brit Hume, you have a lot of explaining to do. Yesterday, the venerable journalist carelessly tweeted out his internet exploration of “Sexy Vixen Vinyl.”
As of this morning, there are 88 confirmed cases of coronavirus in the United States, with two deaths. According to the CDC, one of the best measures people can take to prevent the spread of the virus is to stay home from work when they are sick. Yet, as noted by CNN, “for workers who don’t have paid sick leave, staying home when they aren’t feeling well can be financially devastating.”
Does the Coronavirus freak you out? Do you think it’s the beginning of the end for the human race, way over-hyped by the media, or somewhere in between? I’m in the “somewhere in between camp,” but it doesn’t mean that your business shouldn’t be preparing for the inevitable when this virus starts clustering in the US.
Thus, I’ve gathered the best thoughts on how to prepare from some of the best bloggers around the internet.
Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.
If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.
Yesterday, the NLRB announced its long-awaited final rule governing joint-employer status under the National
Labor Relations Act.
The rule clarifies that for an employer to qualify as a “joint employer” it must “possess and exercise such
substantial direct and immediate control over one or more essential terms and
conditions of employment of another employer’s employees.”
When Wisconsin Physicians Service Insurance Corporation terminated Mary Lou Stelter from her sales position, she claimed disability discrimination relating to a workplace back injury and her related two-month leave of absence.
WPS, on the other hand, argued that Stelter’s manager, Wendy Harings, expressed concerns about Stelter’s performance deficiencies and absenteeism four years before the back injury; thus, any negative marks after her injury were merely a continuation of her long history of on-the-job issues and not evidence of discriminatory animus.
Every year I worry about how I’m going to fill my annual list of worst employers. I’ve yet to be disappointed.
The EEOC recently filed suit against a Medford, Oregon, Chinese restaurant after its middle-aged night-shift manager repeatedly sexually harassed young female employees.
One of the benefits participating in the Tri-C High School Rock Off is that your band gets featured in the Rock & Roll Hall of Fame’s “New Voices in Rock” video series. One of the benefits of advancing to the Finals is that your band gets featured a lot more in said video. So, without further adieu, I bring you Fake ID’s contribution to the Rock Hall’s “New Voices in Rock” series.
The Finals are next Saturday night, February 29. Tickets are only $12 (including Rock Hall admission) and are available here. Aside from Fake ID participating, it really is one of Northeast Ohio's best music events of the year.
Jennifer Paskert worked as a sales associate for Auto$mart, a “buy here, pay here” used car dealership located in Spirit Lake, Iowa. During her six months of employment, she claimed her manager, Bret Burns, sexually harassed her. Her allegations included overhearing Burns tells other than he “never should have hired a woman” and wondering aloud if he could make Paskert cry. Burns also bragged at work about his sexual conquests. One on occasion he attempted to rub Paskert’s shoulders told her he was going to give her a hug. On another occasion, after Paskert had criticized how Burns treated women, Burns replied, “Oh, if you weren’t married and I wasn’t married, I could have you … You’d be mine … I’m a closer.”
Ultimately, Auto$mart fired Paskert for “insubordination.” She then filed suit for sexual harassment, among other claims.
Buddy Phillips injured his ribs while playing with his grandchildren. Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.
He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.
On Valentine’s Day, we tend to focus (because marketing and advertising tell us that we should) on our significant other. Not to sound too cheesy, but I focus on my wife every day. I don’t need a special heart-shaped day on the calendar to remind me. Thus, I instead like to focus on the general ideals of love and that which brings joy into our lives.
So for today, let’s focus less on the Hallmark world of Valentine’s Day and more on all of the things in our lives that bring us love and joy.
And, in that vein, I bring you something that recently brought me tremendous joy—this video of my daughter learning that her band advanced to the finals of the 2020 Tri-C High School Rock Off. Don’t get me wrong, I’m excited for the opportunities that this will bring them, but I’m more excited because you can see from the look on her face when she hears the emcee announce, “Fake ID,” just how happy this makes her. We all need something in our lives that makes us this happy and joyful.
An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs. But that’s not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. It’s what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive.
Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.
Firing people SUCKS. And anyone who tells you that they take pleasure from it shouldn’t be doing it.
It’s the absolute worst part of any manager’s job. Sure, there are exceptions. An employee sexually harasses, or steals, or assaults someone? I’m not feeling badly about their termination. But otherwise, it’s awful having to communicative to someone that they no longer have a job.
The first person I ever fired broke down in tears and begged for another chance (even though he was at least on his third). He earned his termination, and I still felt completely awful about having to tell him.
Like or dislike, if you’re in management or HR you will have to fire someone eventually. Thus, today I offer five helpful dos and five helpful don’ts to help ease the pain of the process.
Earlier this year, Amazon threatened to fire two employees who spoke out against the company’s stance on climate change. In addition, the company also issued a new employee communications policy.
The protest started last April when a group calling itself Amazon Employees for Climate Justice published a letter signed by more than 8,700 employees. It called on Amazon to adopt a company-wide plan to address climate change. As the protests intensified, Amazon ultimately reacted with the new policy and the job threats.
Yesterday, Suzanne Lucas (aka the Evil HR Lady), asked a question about corporate jargon.
One of my least favorite corporate jargon-isms? “Stay in your lane.” It suggests that we only do that which we do best, and not veer into areas outside of our comfort zone.
Why not? New and different lead to learning and creativity.
Comfort zones are boring. They can lead to staleness and silos.
Spotify recently announced that it is acquiring The Ringer, one of the most prolific and popular podcasting networks. Spotify also indicated that it intends to hire all of The Ringers’ 90 employees, most of whom work on theringer.com, which covers sports and culture and which Spotify indicates it will keep up and running.
Last summer, 66 of those 90 employees signed union-authorization cards stating their support for the Writers Guild of America East to represent them as their collective bargaining representative. Shortly thereafter, The Ringer management voluntarily recognized the Guild as the union representative for its employees.
What does this mean for Spotify? Is it acquiring a labor union as part of its purchase of The Ringer? Like most legal questions, the answer depends on a number of factors.
Whether we are Republican, Democrat, or independent, surely we must all agree that every human life is a sacred gift from God. As we support America’s moms and dads, I was recently proud to sign the law providing new parents in the federal workforce paid family leave, serving as a model for the rest of the country.
Now I call on Congress to pass the bipartisan Advancing Support for Working Families Act, extending family leave to mothers and fathers all across our nation.
An employer requires “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy. The employer sends an individual of the same sex to accompany the tested employee into a restroom designated for the sample collection to visually observe the employee producing the sample. The employer’s substance abuse policy and the consent and release form provide for the testing, neither discloses or provides for the direct observation of the sample production.
These are the facts of Lunsford v. Sterilite of Ohio, in which the Ohio Supreme Court will decide whether a private-sector, at-will employee who agrees to drug testing as a condition of continued
employment has a reasonable expectation of privacy during mandatory drug screening.
Today is Super Bowl Monday, the day after the big game. The game ended after 10 pm last night, and parties went much later. In light of this, consider these stats from Kronos:
An estimated 17.5 million U.S. employees say they may skip work today.
Of those employees, 11.1 million say they will likely use preapproved time-off.
Another 4.7 million plan to call in sick even though they’re really not ill.
1.5 million say they will not tell anyone they’re not coming in and just won’t show up.
11.1 million employees plan to go to work, but will show up late.
So here’s my question for everyone. How will your business handle the “Super Bowl Fever”?
My daughter’s band, Fake ID, just recorded demos of a few of their original songs. Check them out on Soundcloud; they’d really appreciate it.
They will be performing some of these songs live at the Rock Hall tomorrow night for the first round of the Tri-C High School Rock Off. Fake ID is officially sold out of their ticket allotment (on behalf of the band, a big thank you to all who bought tickets), but they are still available through the Rock Hall’s box office, and will be sold at the door on the night of the event on a first-come-first-served basis. Cleveland.com calls the Rock Off “one of the most important — and best — musical events in Northeast Ohio.” Having attended in years past, I can vouch. It’s a fun night, with creative kids showing off their musical chops in a great venue (even if Norah’s not on stage).
A judge in the United Kingdom has ruled that “ethical veganism” is a protected class akin to religion and is protected from workplace discrimination. The Washington Post shares the details:
An employment tribunal made that landmark determination in a case involving a man who claimed he was fired from his job at an animal rights organization for revealing to colleagues that their pension funds were invested in companies that experiment on animals. The tribunal has yet to rule on the merits of the case, but it did on Friday take the step of deciding that the man’s ethical veganism constitutes a “philosophical and religious belief” protected by anti-discrimination law.
That’s the United Kingdom. What about the United States? Well, it depends.
According to CNN, Chipotle has agreed to pay a $1.3 million fine for more than 13,000 child labor violations at over 50 of its Massachusetts restaurants. The state’s attorney general’s office accused the company of forcing teenagers to work without proper work permits, late into the night, and for too many hours per day and week. It’s the largest child labor penalty in Massachusetts history.
An agreement between an employer and its employees requires an employee to submit to “final and binding arbitration … any actual or alleged claim or liability, regardless of its nature” (other than claims for unemployment or workers’ compensation, or for violations of the National Labor Relations Act).
An employee sues in court for race discrimination and retaliation, and the employer moves the court to compel the employee to arbitration his claims pursuant to their agreement.
Suppose you fire an employee who you fear might have been exposed to the virus. She exhibits no symptoms, but because she had recently traveled to an area in which she could have been exposed, you think it’s better safe than sorry not to have her work for you anymore. She sues for disability discrimination, claiming that you “regarded her” as disabled. Does she win her case? The outcome might surprise you.
We’ve sadly reached the point in history at which legends of the entertainment world are going to start passing. Someday, we’ll lose Paul, and Betty, and Mick. And the world will gasp, and mourn, and remember. This week was one of those weeks.
We lost Terry Jones, one of the founding members of Monty Python. He was a comedy genius, most famous for depicting middle-aged housewives, usually with hilariously falsetto voices. One of those housewives, Brian’s mom in Life of Brian, uttered one of the greatest lines in movie history—”He’s not the Messiah, he’s a very naughty boy.”
I discovered Monty Python’s Flying Circus as a pre-teen, late at night on our local PBS station. Staying up late to watch it made me feel part of a special, subversive cult. Flying Circus is now readily available, on Netflix, BBC America, and IFC, I’m joyfully introducing it to my 11-year-old son, who loves all things silly. And above all else, Python was always silly.
And Jones’s characters were some of the silliest. The nude organ player. Cardinal Biggles of the Spanish Inquisition. Mr. Creosote, the obese and vomiting diner in Meaning of Life. Holy Grail‘s Sir Bedevere. And Brian’s mum.
Rest in peace, Terry Jones. The world is better for all of the laughs you brought through the characters you created, and skits and movies you birthed.
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.
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.
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.
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.
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, severaltrips 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Today is Super Bowl Monday, the day after the big game. The game ended after 10 pm last night, and parties went much later. In light of this, consider these stats from Kronos:
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.
