Coronavirus update 4-20-2020: What a business operating in the time of coronavirus CANNOT look like

On Friday I shared my thoughts on the measures businesses absolutely must take as a condition to reopening when governors restart their economies.

Today, I am sharing the consequences that will happen if states and businesses get this wrong.

NPR reports on the Smithfield Foods pork processing plant in Sioux Falls, South Dakota, which has become a hot spot of coronavirus transmission. That facility has seen 634 of its 3,700 total employees positive. Sadly, the first employee recently died.

Coronavirus update 4-17-2020: Preparing your workplace for a restarted economy … plus a podcast and some music

President Trump has been talking for weeks about restarting the economy and getting employees back to work. Last night he unveiled his three-phased guidelines to reopen the country. (I’m ignoring the scary fact that WWE Chairman Vince McMahon was one of its key architects.) And now governors around the country (with whom the actual reopening authority actually rests) are joining the conversation.

Yesterday, Governor Mike DeWine of Ohio (who has been internationally praised for his forward-thinking handling of the coronavirus crisis in my state) announced that businesses in Ohio will begin slowly reopening starting May 1.

It’s unclear yet which businesses will be first to reopen (let me suggest non-essential manufacturing) or what standards they will be required to meet as a condition to opening and remaining open.

Coronavirus update 4-16-2020: FBI warns companies about employees faking coronavirus diagnoses

Given the amount of time I spend on this blog pointing out the awful things that employers do to their employees, I thought I’d flip the script and focus my glare on a group of horrible employees.

According to CNN, the FBI has advised businesses that employees are faking positive coronavirus diagnoses with phony doctors’ notes and other fraudulent documentation.

Coronavirus Update 4-15-2020: Declaring professional wrestling an essential business demeans the sacrifices all essential workers are making

Have you taken the “Florida Man challenge”? It’s a hoot. You type “Florida man” along with your birthdate to discover the head-scratching things Floridians have done on that date.

For example, “Florida Man February 13” (my birthday) yields this gem: Florida Man Carrying Steroids and Marijuana Crashes Van While Attempting to Flee Cumby PD.

And if you take the challenge for today, winner winner chicken dinner: Florida Man High on Flakka Has Sex with Tree and Calls Himself Thor.

It should therefore not come as any surprise to learn the state from which this headline originated: DeSantis Deems Pro Wrestling “Essential Business” Amid Statewide Stay-at-Home Order.

Coronavirus Update 4-14-2020: Telecommuting as a reasonable accommodation

Telecommuting has become the coronavirus norm. The CDC recommends that employees who can work from home do so, and state Stay at Home orders are requiring telework whenever possible.

The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when his crisis ends will businesses return to their pre-coronavirus telework hostility?

I hope it’s the former but I fear it’s the latter. And if it’s the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit decided in the midst of the growing coronavirus outbreak and just five days before the WHO declared a viral pandemic, gives us some insight into the future issues.

Coronavirus Update 4-13-2020: Trying to make sense of the substitution of employer-provided leave for EPSL and EFMLA under the FFCRA

One of the more confounding sets of rules under the FFCRA is when employers can require employees to substitute an employer’s own provided leave (which, for the sake of convenience I’ll refer to throughout as “PTO”) for paid leave —the 80 hours of paid sick leave (“EPSL”) or the 12 weeks of expanded family and medical leave (“EFMLA”)—mandated by the Families First Coronavirus Response Act.

Today I am going to make an attempt to explain these rules, but I’ll fully admit that it’s still not 100 percent clear to me. The text of the FFCRA seems to suggest that an employer can never require the substitution of PTO. The DOL’s proposed regulations, however, muddy the waters, which were muddied even further by an amendment to those proposed regulations published last Friday, which deleted language from the regulations’ explanatory discussion relating to the substitution of PTO for EFMLA.

So let’s try to sort it all out.

Coronavirus Update 4-10-2020: The top 5 things I’m doing besides working

How are you filling your non-working time? We used to fill our time running our kids all over the place for various lessons, rehearsals, and gigs. Now, however, we have a lot of down-time, with nothing to do. So how am I filling my time when I’m not working? (Which, btw, I’ve been doing a lot of over the past month.)

Coronavirus Update 4-9-2020: CDC issues new guidelines for the return of essential workers to work after a coronavirus exposure

Last night, the Center for Disease Control issued new guidelines for when an essential employer should permit a critical infrastructure employee to return to work after a coronavirus exposure (defined as a household contact or having close contact within 6 feet of an individual with confirmed or suspected coronavirus for up to 48 hours before the individual became symptomatic).

The guidelines are a substantial departure from how I’ve been advising my clients for the past month.

Coronavirus Update 4-8-2020: Employers, if you are requiring your employees to wait in line for a coronavirus fever check, please pay them for waiting

Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.” To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period.

Since this is a legal blog, however, I might as well look beyond common sense and examine the laws impacted by this issue—the ADA and the FLSA.

Coronavirus Update 4-7-2020 number 2: FFCRA loopholes (and another Zoominar)

Senator Patty Murray (D-Wash.) and Congresswoman Rosa DeLauro (D-Conn.) have sent a scathing letter to Secretary of Labor Eugene Scalia calling out the DOL for contradictions they see between the text of the Families First Coronavirus Response Act and the agency’s interpretive guidance.

Among the issues that they red-flagged:

Coronavirus Update 4-7-2020: What does OSHA have to say about coronavirus for employers?

OSHA, the federal agency responsible for health and safety, has been all over the coronavirus pandemic, providing a wealth of resources for employers. 

That said, OSHA does not have a specific standard addressing viral pandemics. Instead, it regulates this outbreak via its general duty clause: “Each employer shall furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

So what steps should employers take to furnish employees a workplace safe from coronavirus—a hazard that is causing or is likely to cause death or serious physical harm?

Coronavirus Update 4-6-2020 number 2: A 4th set of FAQs from the DOL on the FFCRA (and another Zoominar)

If you thought the DOL was done publishing FAQs on the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act with the publications of last week’s regulations, boy do I have a surprise for you.

Over the weekend, the DOL published its 4th set of FAQs discussing the FFCRA (nos. 60 - 79).

What has the DOL clarified in its latest set of FAQs?

Coronavirus Update 4-6-2020: We CARES about unemployment

The past two weeks have seen a record 10 million new unemployment claims. This number does not even include many of the millions more who have had their hours or wages cut as businesses continue to struggle with the realities of operating in a world turned upside down by coronavirus. Sadly, we should expect this situation to get a lot worse before it starts to get better.

Thankfully for each worker unemployed or underemployed as a result of coronavirus, the CARES Act provides significant financial relief. It contains the following seven unemployment expansion and enhancement provisions.

Coronavirus Update 4-3-2020: I killed the Easter Bunny

My family has been self-quarantined for the past three weeks. We did so before Ohio ordered people to stay at home, and before anyone started talking about social distancing and flattening the curve.

We chose to do this because our son is high-risk with a heart defect and asthma, and none of us wanted to get him sick.

We take our responsibility to halt the spread of this killer virus very seriously. We view it not only as a responsibility to ourselves not to become ill, but also to society as a whole not to spread it to others in the event we are silent or pre-symptomatic carriers. We know that one can transmit the virus for up to 14 days after exposure and before any symptoms appear; we’ve not been closer than six feet from anyone but the four of us living this house for weeks.

Coronavirus Update 4-2-2020: The DOL’s FFCRA regulations contain some BIG changes (and other Zoominar)

Yesterday afternoon, the Department of Labor published its long-awaited (as in, for the past two weeks) regulations to the paid family leave and paid sick leave provisions of the Families First Coronavirus Response Act. You can download them and read them for yourself (all 124 pages) here.

Much is unchanged from the Act itself and the three sets of FAQs (one, two, and three) the DOL published over the past week. 

There are, however, many key differences in how we have been interpreting the FFCRA since it became law.

I will discuss these regulations and field your questions on another Zoominar (this time, fingers crossed, free of Zoombombs), tomorrow, Friday, April 3, at 10 am ET. You can participate here: https://zoom.us/j/976011327

I’ve also summarized the key regulatory differences and highlights below.

Coronavirus Update 4-1-2020 number 2: DOL’s FFCRA regulations are out!

The Department of Labor's FFCRA regulations are out. And they are significant.

If you thought you understood this Act, you don't.

Among the key interpretations:

• Government stay at home and shelter in place orders qualify for leave.
• Intermittent leave is very limited.
• The scope of people for whom an employee can provide care and qualify for leave is narrow.
• An employee cannot take childcare related leave if someone else is available to care for their child(ren).

There is a lot more to digest, and I'll have a full summary of all of the key changes in the morning. For now, you can read all 124 pages of the regs here, or just wait for me (and the rest of the employment law bloggers) to publish our summaries.

Coronavirus Update 4-1-2020: The mechanics of the tax credit for paid family and sick leave under the FFCRA

One of the questions I have received the most since the passage of the Families First Coronavirus Response Act is how employers claim the tax credit available under the Act for paid leave provided to employees.

Late yesterday, the IRS published a detailed list of FAQs explaining all of the mechanics of this tax credit. I want to focus on the key employment law piece of these FAQ, how an employer should substantiate its eligibility for tax credits, i.e., the documentation you need to keep.

The IRS discusses this important issue in Questions 44 – 46. I’ll break it all down for you here.

Coronavirus Update 3-31-2020: Employers, PLEASE don’t take your employees’ stimulus checks (plus video of yesterday’s Zoominar)

One employer is an anomaly, two is a trend that must be stopped.

Last week, I nominated for the Worst Employer of 2020 an unnamed national restaurant chain that was reported to be stealing (the company called it “absorbing”) its employees’ CARES Act stimulus checks by reducing their scheduled hours in a pro-rata amount.

Now, another employer has been outed with similar plans.

Coronavirus Update 3-30-2020: DOL FAQs on the FFCRA, the threequel (and a Zoominar reminder) #coronavirus

A quick reminder that I’ll be live on Zoom today from 1 - 2 pm ET discussing all things Coronavirus, including the DOL’s most recent additions to its Families First Coronavirus Response Act FAQs (part 1 of which I covered here, and part 2 of which I’m covering below).

You can access the Zoominar here: https://zoom.us/j/856368874 (and don’t forget that Norah promised to join for a song at the end).

Now, onto the most recent development—the DOL’s weekend additions to its coronavirus paid family and sick leave FAQs (maybe its last before the law’s 4/1 effective date).

Here’s what the DOL has to say about some very important open issues.

Coronavirus Update 3-27-2020 number 2: More answers from the DOL on the FFCRA, and another Zoominar

Late yesterday, the DOL published a second round of FAQs (numbers 15-37) answering more questions on the operation of paid family and sick leave under the Families First Coronavirus Response Act.

Here’s what the DOL has to say:

Coronavirus Update 3-27-2020: How are we feeling? #CoronavirusCoping

After a week of self-imposed quarantine in my home, and a week of mandatory sheltering in place by the State, now is as good a time as any to tell everyone how I’m holding up, and also to ask everyone, “How are you?”

First me.

The truth is, I’m not great. I’m tired, I’m stressed, and I’m worried.

Coronavirus Update 3-26-2020 number 2: Is the DOL’s FFCRA notice correct as published?

The speed at which the coronavirus news cycle moves is dizzying.

Is it possible that the DOL’s FFCRA Employee Rights Poster is correct as published, even with it listing a $12,000 cap for paid family leave?

Coronavirus Update 3-26-2020: A coronavirus Q&A and the DOL’s FFCRA notice (with a big ol’ typo)

Yesterday I held my first Zoominar. (Is this an actual word, or did I just make it up?) I opened up my Zoom room for the first 100 people to join and ask any coronavirus-related employment law questions they wanted. I shared #MyQuarantineHaiku (see below), saw some familiar faces, met some new old friends, and answered dozens of questions.

If you weren’t able to join or couldn’t get in, you can watch it here:


Also yesterday, during my Zoominar, the DOL published its required Employee Rights poster for the Families First Coronavirus Response Act. You must post it alongside your other employment law posters no later than April 1, and email it to those employees that are currently working remotely. But you might want to brush up on your PDF editing skills before you do so, because the DOL’s model poster has a big ol’ typo. In describing the paid leave entitlement for employees taking time off to care for children, the DOL lists the maximum dollar cap as $12,000 instead of $10,000. A big mistake, and one we will assume the DOL will fix soon. (Thanks to Eric Meyer for pointing this out to me.) You can also bring it to the DOL’s attention on one of its FFCRA twitter chats, or on the online forum it is hosting.

Two more things. First, I will be hosting another Zoominar this coming Monday, March 30, from 1 – 2 pm. And this time I won’t be caught off guard by the questions about how my daughter’s band, Fake ID, is weathering the coronavirus storm. In fact, she’s promised to join and perform a song for everyone. You’ll be able to access the Zoominar here.

Finally, #MyQuarantineHaiku.

Day-time pajamas

I don’t have hair to pull out 

Night-time pajamas

Be well and stay safe. I’ll see everyone tomorrow.

Coronavirus Update 3-25-2020 number 2: Someone needs to tell the DOL that 15 days from March 18 is April 2, NOT April 1

The Families First Coronavirus Response Act has an effective no later than 15 days after President Trump signed it. He signed in late in the day on March 18. We all did the math, and calculated an effective date of April 2. We all did the math.

Which is why we were all surprised when the DOL published a Q&A yesterday and announced an effective date of April 1.

What is the effective date of the Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act? 

The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

Apparently, everyone can count to 15 except the Department of Labor.

Coronavirus Update 3-25-2020: The 5th nominee for the “worst employer of 2020” is … the coronavirus stimulus snatcher

Can we just close the poll now and announce today’s nominee the winner? If anyone can verify the identity of this employer I’d love to know who it is.

Alison Green, over at Ask a Manager, provides the truly awful details.

I work in an administrative role at a national restaurant chain. 

I just got off of a conference call with corporate in which they told us that if the U.S. government sends us the proposed stimulus checks due to Covid 19, they plan to absorb the money we receive by cutting our hours to reflect that amount. In other words, if each person receives a check for $1,200, $1,200 will effectively go back to the company. Is this legal?

Coronavirus Update 3-24-2020 (number 2): I’ll be chatting all things coronavirus tomorrow, Mar. 25, from 12 - 1 ET

There are so many questions about all things coronavirus and workplace, I thought I’d try something new for all of my valued readers.

Tomorrow, March 25, from noon through 1 pm ET, I’ll be live on Zoom chatting all things coronavirus.

You can access this live chat here:

https://zoom.us/j/876365113

Space is limited. The room can only handle 100 at a time, and it’s first come, first served. Have your coronavirus questions ready, and I’ll try to get to as many as I can in the hour we have.

I'll also be recording it to share later if you can't get into the chat room.

And, if this is well received I promise I’ll do more. 😉

Coronavirus Update 3-24-2020: Layoffs, furloughs, and group health insurance

The question I’ve received the most in the past week is the difference between a layoff and a furlough. Both are reductions in force caused by economic conditions. There is one key difference.

• A layoff is a permanent job loss, usually with no expectation of recall to full-time employment.
• A furlough is a temporary and short-term reduction of one's hours (in this case down to zero) with an expectation of a return to full-time employment.

One issue that keeps recurring is what happens to employees’ health insurance if they lose their jobs related to coronavirus-related job cuts.

Coronavirus Update 3-23-2020: Frequently Asked Questions about Ohio’s “Stay at Home” Order

Effective Monday, March 23, 2020, at 11:59 pm, and continuing through at least April 6, the State of Ohio, via an order of Dr. Amy Acton, Director of the Ohio Department of Health, has closed all non-essential businesses to help combat the spread of COVID-19. Governor DeWine stated that he would reevaluate the April 6 end date as necessary. These closures are mandatory. A copy of the Order is available here.

To help answer your most pressing questions about how this Stay at Home Order impacts your business and your employees, I drafted this FAQ.

For additional information and updates on how Coronavirus will continue to impact your business, bookmark coronaviruslaw.blog or ohioemployerlawblog.com, or subscribe via RSS or email.

Coronavirus Update 3-21-2020: Treasury, IRS and Labor announce plan to implement Coronavirus-related paid leave for workers and tax credits for businesses

The Department of Treasury, the Department of Labor, and the IRS announced impending regulations that will help covered businesses navigate the paid family and sick leave provisions of the Families First Coronavirus Response Act, including available tax credits, the small employer exemption, and a 30-day non-enforcement grace period.

Coronavirus Update 3-20-2020: How are you feeding your soul?

What did you do to feed your soul this week? I’ve been sheltered at home with my family. We’ve decided to self-quarantine because our 11-year-old son’s congenital heart defect makes him high risk. Aside from working (a lot), I’ve turned to a few things to fill my soul with some much-needed joy.

Center square ftw!

Coronavirus Update 3-19-2020: The Families First Coronavirus Response Act is law

Five days.

That’s all it took for both parties in both houses of Congress to work together, along with the White House and President Trump, to pass important relief legislation for American workers. We need more cooperation like this to see our country thru this crisis.

BREAKING NEWS: Senate passes Families First Coronavirus Response Act

This afternoon, by a margin of 90 - 8, the Senate passed the Families First Coronavirus Response Act. It will now go to President Trump for signature. The law will be identical to the amended bill passed by the House Monday evening. It will become effective in 15 days after President Trump signs it (as he has said he will).

For the next two weeks, businesses will have to get their FMLA and sick leave houses in order. Policies will be needed to be reviewed, amended, and drafted. Forms will need to be created. And new posters will have to be hung in the workplace.

Coronavirus Update 3-18-2020: “Gag and vote for it anyway,” and an EEOC update

It looks like the Families First Coronavirus Response Act is one step closer to becoming law … just not quite yet.

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.

Coronavirus Update 3-17-2020: House guts the Families First Coronavirus Response Act before sending it to the Senate

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).

Answering the six questions I’ve received most about the Families First Coronavirus Response Act

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.

1. 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?


2. 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?


3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?


4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?


5. What about self-employed people? What relief is there for us?


6. 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?

BREAKING: House passes broad coronavirus stimulus and relief package, including paid sick and family leave

It’s been 12 days since I asked if coronavirus the thing that will finally make paid family and sick leave a national reality. Twelve days in the COVID-19 news cycle feels like 12 years. Regardless, I am happy to report that in the very early hours of this morning, by a bipartisan vote of 363-40, the House passed the Families First Coronavirus Response Act, sweeping legislation that will provide myriad emergency relief to businesses and individuals, including paid family and sick leave.

Shortly after the House passed the bill, President Trump tweeted his support, virtually assuring a swift run through the Senate and his signature.

WIRTW #591 (the “new (ab)normal” edition)

This has been one strange and disorienting week. I haven’t felt this disjointed since 9/11.

No basketball (pro or college).

No hockey.

No baseball.

No James Bond.

No large scale concert tours.

No Broadway shows or Disney parks.

No St. Patrick’s Day parades.

No Rock & Roll Hall of Fame inductions.

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.

And, to top it off, Tom freakin’ Hanks has coronavirus (my personal breaking point).

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.

Here’s what I read this week:

A thank you and a mission statement

Tomorrow, I was to receive my award from the Cleveland-area chapter of the National Association of Social Workers as its Public Citizen of the Year. Sadly, but understandably, coronavirus caused the event to be postponed. Since I will not have the opportunity to deliver my remarks (and I’m not sure when I will), I’m sharing them here.

* * *

6th Circuit gives employers relief on the evidence employees must present to prove off-the-clock work

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.

Coronavirus resource update 🦠😷

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.

Is an employee entitled to FMLA leave to care for the children of a family member with coronavirus?

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.”

WIRTW #590 (the “win some, lose some” edition)

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. 

Here’s what I read this week.

Accidents will happen: “Not every mistake amounts to actionable employment discrimination”

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.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

What “Sexy Vixen Vinyl” teaches us about porn at work

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.”

Can an employer require an employee with a serious health condition to take FMLA leave?

Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.

The answer is a qualified “yes.”

Is coronavirus the thing that will finally make paid sick a national reality?

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.”

WIRTW #589 (the “Coronavirus” edition)

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.

PLEASE, I’m freaking begging you, DO NOT use social media to determine applicants’ race and gender

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.

Meet the new boss, same as the old, old boss—NLRB issues long-awaited final rule on “joint employment”

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.”

Just being in a protected class is never enough to protect an employee’s job

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.

The 4th nominee for the “worst employer of 2020” is … the perverted Peking-duck purveyor

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.

WIRTW #588 (the “new voices” edition)

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.

Here’s what I read this week:

Just because an employer wins summary judgment doesn’t mean you should emulate its behavior

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.

“It’s a major award!”

I hate tooting my own horn. It usually comes off as self-serving and tasteless. But, sometimes it’s unavoidable. Today is one of those days.

I’m being honored by the Cleveland-area chapter of the National Association of Social Workers as its Public Citizen of the Year. 

7th Circuit concludes employer should have advised injured employee of FMLA rights even after employee went AWOL

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.

WIRTW #587 (the “joy” edition)

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.

Happy Valentine’s Day y’all.

Here’s what I read this week:

The 3rd nominee for the “worst employer of 2020” is … the arresting retaliator

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.

NBC News has the details:

Even though this employer won its ex-employee’s retaliation lawsuit, PLEASE don’t do what it did

Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.

For example, consider Allen v. Ambu-Stat.

The Dos and Don’ts of firing an employee

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.

Kate Bischoff inspired today’s post with her difference of opinion yesterday, blogging that she likes firing people.

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.