An employer has disability discrimination problems if the interactive process isn’t interactive

You'd think an employer with the name Opportunities for Ohioans with Disabilities would know a thing or two about complying with workplace discrimination laws. 

You'd think.

A step in the right direction to ending workplace sexual harassment

When is the last time you recall Congress agreeing on anything? Well, it happened last week, when the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (full text here.)

Simply, once signed by President Biden (which should happen imminently), any agreement that requires an employee to submit a sexual harassment claim to private arbitration, or waive their right to participate in a class or collective action, would be invalid and unenforceable. 

What do you do for a living?

The question, "What do you do for a living," doesn't have a straight-line answer. My law firm bio offers several answers. 

There is a lot to unpack in that bio.

The 4th nominee for the “Worst Employer of 2022” is … the WTF racist

I can't do these truly awful allegations of systemic racism, racist harassment, and retaliation any more justice than the actual allegations from the lawsuit that the California Department of Fair Employment and Housing just filed against Tesla.

They are the worst allegations of workplace racism I've ever encountered. They start with claims of a segregated workplace with the Black section referred to as the "porch monkey station," the "slaveship," and the "plantation," and go downhill from there to include daily utterances of every kind of racist slur (including the n-word, "porch monkey," and "coon") 50 - 100 times per day.

WIRTW #613: the “competition” edition

On July 9, 2021, President Biden issued Executive Order 14036, Promoting Competition in the American Economy. Its goal is to reduce the trend of corporate consolidation, increase competition, and deliver concrete benefits to America's consumers, workers, and small businesses.

To that end, the Treasury Department has been investigating competition in the beer, wine, and spirits industries. Earlier this week, it published its report. 

It details how the government should be working to open up competition in these industries to help the small businesses that fuel it. 

It also makes some specific recommendations, including on the anticompetitive dangers of horizontal consolidation within the industry, and how state laws (such as beverage franchise laws) can be amended to eliminate or mitigate the anticompetitive effects of states' traditional three-tier supply chain system of passing alcoholic beverages from the producer/supplier, to the distributor/wholesaler, and ultimately to the retailer.

If you have any interest in these industries in particular, or more generally as to how the power of state and federal governments can be harnessed to help free enterprise by removing barriers to competition, I recommend reading the Treasury Department's report.

Here's what else I read this past week that I think you should be reading, too.

Peloton’s dubious severance package

Facing the consequences of some poor business decisions and an uncertain future, Peloton made the difficult decision to lay off approximately 20 percent of its workforce, totaling 2,800 employees. 

Perhaps worried about the public relations storm this news would create (and further damage to its already diminished stock price), John Foley, Peloton's now-former President and CEO, and the company's co-founder, took to the company's website to explain the decision. Part of that explanation was an outline of the severance packages being offered to those impacted by the layoff.

We are officially in the Golden Age of Union Organizing. How will your company respond?

Yesterday, the White House Task Force on Worker Organization and Empowerment released its 45-page report on the use of executive branch policies, practices, and programs to promote the Biden Administration's support for worker power, worker organizing, and collective bargaining.

The key takeaway for employers? The Task Force has recommended that the federal government use its "authority to support worker empowerment by providing information, improving transparency, and making sure existing pro-worker services are delivered in a timely and helpful manner." 

Yikes! 😱

How will the federal government accomplish this?

An employee can’t sue over a job never applied for

Staci Russell, a dean at Cornerstone Health High School, sued her employer for sex discrimination after she was passed over for the open principal position. Her problem? She never applied for the position.

Based on that fact alone, the 6th Circuit had little difficulty affirming the dismissal of her lawsuit.

Russell concedes she did not apply for the vacant principal position. … Russell never applied or interviewed for the position, nor did she indicate interest. While Cornerstone named Price principal of the combined high school on January 24, 2020, after Russell filed her EEOC charge, Russell does not provide evidence showing that Cornerstone’s decision to combine two high schools and name Price principal of the combined school occurred as a result of her filing an EEOC charge. Russell thus did not establish a prima facie case of discriminatory failure to promote.

Thank God for common sense judicial decisions. If an employee fails to apply for a job, it's really hard to claim discrimination when that job goes to someone else who actually did apply.

Jon and the Social Media Pub Crawl

A big thank you to Allessandria Polizzi for having me as a guest on her Be Verdant Podcast. We took a 40-minute tour through the state of employment law and employee relations in early 2022. She called in a "pub crawl" since we quickly hit a bunch of issues instead of spending our time together taking a deep dive into just one. It was fun to record and a fun listen.

Enjoy. 

Find it embedded below or wherever you get your podcasts.

WIRTW #612: the “when I went to college” edition

I turn 49 years old in nine days. I was recently reminded of my age when I came across this blog post from my alma mater, Binghamton University (née SUNY Binghamton): You Know You Went to SUNY Binghamton When…

Among the pearls of days gone by that Gens Y and Z could not possibly wrap their younger brains around?

🍻 I drank in an on-campus pub

✍️ I waited in line in the gym to register for classes on paper

👀 Everyone knew my social security number

What has changed since you attended college that would shock those younger than you? Share in the comments below.

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

Brian Flores burns down the house in his lawsuit against the NFL … and makes himself unemployable in the process

If you haven't read the lawsuit Brian Flores filed against the NFL and three of its franchises, you should. It reads like a law school employment law exam question. It has allegations of systemic and endemic racial discrimination, fraud, bribery, and Bill Belichek inadvertently providing the smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL's hiring practices. It will also likely mark the end of Flores' coaching career. I'd be shocked if he ever coaches again.

The 3rd nominee for the “Worst Employer of 2022” is … the cancerous employment canceler

"Focus on your health," is a nice sentiment for an employer to share with an employee who is awaiting the results of cancer testing. Coupled with a termination letter on the eve of the employee returning to work from said testing? That will earn you a nomination for 2022's Worst Employer.

The EEOC has the details in this news release.

Coronavirus Update 2-1-22: I just gave my kids the worst business trip souvenir ever

In the before times, when I actually traveled for business, I'd always try to come home with a souvenir for the kids. A t-shirt, a stuffed animal, something small, but at least something so they knew I was thinking about them when I was gone.

Two weeks ago, I got to travel for work again — this time to Cincinnati for the annual Ohio Craft Brewers Conference. Never fear, I did not forget to bring home a souvenir for the kids. While certainly memorable, it's one that they would certainly rather forget.

I brought them Covid-19. 😥🦠🤒

Thankfully, our Covid experience was mild and we all survived with varying degrees of minor symptoms along with five days of isolation. 

On this week's episode of The Norah and Dad Show, Norah and I talk about our experience with Omicron. We discuss how we handled having the virus, life during isolation, what we missed from the past 22 months of trying to act responsibly, and what we’re looking forward to doing now that we have our super-immunity. We also discuss the dangers of late-night milkshake deliveries and, notwithstanding, how ice cream makes everything better.

You can listen on Apple Podcasts, Spotify (yes, we're still there, even though Joe Rogan spews dangerous garbage), Google Podcasts, the old-fashioned web browser, and wherever you get your podcasts.

Coronavirus Update 1-31-22: Employees should not be choosing between their jobs and working while ill

I return to the office today after a one-week Covid-inducted work-from-home hiatus. I'm fortunate that as a professional I have the ability and flexibility to work from home when needed. Many too many employees, however, do not have that luxury.

Consider, for example, this report from Business Insider, that 63 percent of Red Lobster employees came to work while sick with Covid-19, either because they lacked paid sick leave or because they couldn't find anyone to cover their shifts. 

WIRTW #611: the “masthead” edition

Early on in the pandemic, I rebranded and renamed the Ohio Employer Law Blog to the Coronavirus Law Blog. The change was part marketing savvy and part recognition of the reality that for the then-foreseeable future the Covid-19 pandemic would be all that mattered to employers. 

Nearly two years later? The name and masthead remain the same.

Yet, even with Omicron keeping cases at near-record numbers, hospitals still full, and Covid still claiming thousands of American lives per day, it's at least starting to feel as if we are rounding the corner into the home stretch of the pandemic.

So don't worry. I'll let you know when the pandemic is over. It'll be when I change the masthead back to this:

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

Coronavirus Update 1-27-22: Whole Foods 1 – Maskhole 0 😷

You have every right to believe that masks are a form of government control or a satanic tool. You're very wrong, but you are free to believe what you want to believe. 

What you aren't free to do, however, is to act on those beliefs when they run counter to the rules of the employer for which you work or the business you want to enter. 

Case in point: Manning v. Whole Foods Market Group.

Coronavirus Update 1-26-22: OSHA doesn’t need an ETS to go after your business’s Covid-safety deficiencies

With the Supreme Court effectively killing OSHA Covid-19 vax-or-test Emergency Temporary Standard, and OSHA now officially withdrawing it, employers might think that they are beyond the reach of OSHA for Covid safety-related issues. If you are one of those employers that thinks this way, you are very mistaken.

Consider Sanoh American, a Findley, Ohio, auto parts supplier. OSHA recently cited and fined it $26,527 for ignoring guidelines to limit Covid-19 exposure in its facility. While the company had social distancing and mask policies in place, it failed to follow or enforce them. As a result, 88 of the company's 270 Findley employees (nearly one-third of the local workforce) tested positive for Covid-19. Five of those positive employees were hospitalized and two unfortunately died. OSHA determined that one of those deaths was work-related.

The 2nd nominee for the “Worst Employer of 2022” is … the claim-filing clinic

Suppose you have a group of unhappy employees. They don't like their working conditions. They don't like their pay. They generally want to work somewhere else. When they give you their notice, do you:

(a) Let them walk. 
(b) Engage them to see what will entice them to say.
(c) Sue them for an injunction to stop them from leaving.

If you chose (c) you are ThedaCare, a Wisconsin healthcare system. You are also the 2nd nominee for the Worst Employer of 2022.

Coronavirus Update 1-24-22: I’m a Covid statistic

It was a calculated risk. I've been so careful for the past 22 months. We don't socialize outside of a very small bubble. We don't eat in restaurants or go to bars unless we can be outside. We've given up concerts and traveling. I wear my KN95 mask everywhere. 

But before Omicron changed the Covid-19 narrative, I decided that my firm would sponsor the Ohio Craft Brewers Conference. I also agreed to speak at the event. And we timed the launch of our brand new Craft Beer Practice Area around the conference. 

It was a safe event. Vaccines or negative tests were required of all attendees. Masks were mandatory at the event unless eating or drinking. I wore my KN95 mask everywhere. I was still nervous about spending three days out of town. But at my request, my firm had made a substantial financial investment in the event. So I packed my KN95 masks and my hand sanitizer, and off I went.

Twenty-four hours after returning home I felt my first symptoms — a scratchy throat and a mild dry cough. That's it. But having been out and about, I decided to home test. Negative.

WIRTW #610: the “humor is the best medicine” edition

On behalf of myself and my daughter, I'd like to thank everyone for all of the kind words of encouragement and support I received for our most recent podcast episode. Whenever you go through any sort of trauma, you feel like you're in it alone. What I learned through the many of you who took the time out of your busy lives to email, comment, or message is that we are not alone and that so many have gone through similar experiences. That community of shared experiences offers a tremendous amount of comfort.

If you've yet to listen, please do so (Apple, Spotify, or wherever you get your podcasts). If you have listened, please share. And if you've shared, please re-share somewhere else. Norah wants to make something positive out of her experience to help people by talking about and de-stigmatizing mental health issues. It's a conversation that is long overdue and very needed. 

I do want to take a moment to address one critique we've received from one very small corner of the internet, which has been bothering me and that I don't want to leave unanswered — that because we chose to attack this issue with some humor, we are devaluing the seriousness of the situation and are not taking mental health issues seriously. Nothing could be further from the truth. No one (and I mean no one) has the right to tell someone else how to process trauma. Some do so with anger or sadness. Some with quiet reflection. And some with serious discussion. Consistent with our personalities, we process with humor and sarcasm. It doesn't mean we're not taking the situation seriously or making light of it. Quite the opposite. It just means we're coping the best we can. I can assure you that no one takes what Norah went through and is going through more seriously than she and our family.

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

If you treat employees like they are fungible, they will act like they are fungible

I spent the past few days at the Ohio Craft Brewers Conference promoting my new venture, OhioBeerLawyers.com. In addition to being one of the event's sponsors, trying to network in as Covid-safe of a way as possible, and learning about the business of craft beer, I also was a presenter. My chosen topic was how to hire and retain employees in the midst of the Great Resignation. 

I thought of my presentation as I read about the situation at Noah's NY Bagels in Vacaville, California. The restaurant's entire staff of 15 quit their jobs en masse in protest of their manager's (unjust, in their view) termination. The story took off after a TikTok, posted by one of the employees and captioned, "Say no to toxic management," went viral.

Accountability always starts at the top

How do you respond to an employee who states that the Covid-19 vaccine is a plot by "the Jews" to exterminate people? Does your answer change if the employee in question is the company's founder? 

The correct answers: You fire him, and no, it doesn't matter who he is.

The scenario recently played out at Entrata, a Utah technology company. David Bateman, Entrata's founder, sent an email to multiple parties, including various Utah tech leaders. Bateman's email started with the subject line, "Genocide." It went downhill from there. 

A very special episode of The Norah and Dad Show, talking about teen mental health

I recently asked you, my readers, followers, and friends, for a favor. I asked you to take a moment to hug your kids a little stronger and a little longer. What I didn't tell you was why I was asking that of you.

Today I'm sharing the rest of the story. Except it's not my story to tell. It's my daughter's.

Stepping out of my confort zone

Sometimes you need to step out of your comfort zone to move forward, including in one's career. 

For the past 25 years, I've been a management-side labor and employment lawyer. I've represented employers in just about every type of employee dispute you can imagine and counseled too many to count on a countless number of issues.

Still, I yearn for growth. One of the industries I've had the pleasure of representing over the years is the craft beer industry. Thus, I've helped spearhead the launch of Wickens Herzer Panza's brand new Craft Beer Practice Group. I'm excited to be one of the two leaders of this group, along with one of my partners, Grant Steyer. You'll find our new practice at ohiobeerlawyers.com.

I'm still a practicing labor and employment lawyer (don't worry). I'm just adding "craft beer lawyer" to my arsenal.

BREAKING NEWS: SCOTUS dumps OSHA vax-or-test emergency temporary standard

The Supreme Court has issued its opinion in the appeal of the 6th Circuit's decision that vacated the 5th Circuit's stay of OSHA's vaccine-or-test emergency temporary standard for employers with 100 or more employees.

In a 6-3 decision, strictly down ideological lines, the Court reinstituted the stay, blocking the ETS from taking effect. 

Coronavirus Update 1-13-22: The CDC is not updating its mask guidelines to better protect against Omicron … but it should

The CDC is not considering updating its current mask guidelines to recommend that everyone wear highly protective N95 or KN95 masks, contrary to earlier reports by the Washington Post.

In a White House briefing yesterday, Rochelle Walensky, the head of the CDC, said that any mask is better than no mask, and that the CDC would not be changing any guidance regarding the type of maks that people should be wearing. Walensky did concede that the CDC's website needs to be refreshed to include information on the "different levels of protection different masks provide."

Pumping up workplace lactation rights

The U.S. Department of Labor has reached a settlement with Labcorp over allegations that it failed to provide lactating employees a space for them to express milk privately without fear of intrusion.

The investigation stemmed from an allegation of one employee in the company's Lynwood, California, location. DOL investigators determined that when the employee asked for a private place to express her breast milk, supervisors offered a common space that resulted in her being interrupted twice. As result, and per its settlement with the DOL, Labcorp has agreed, for all of its 2,000-plus locations nationwide, to "provide a private space as required with a notification on the door to guarantee an intrusion-free space."

The 2nd nominee for the “Worst Employer of 2022” is … the enslaving employer

An allegation of slavery has played into each of the last three Worst Employer winners. Thus, even at this early point in this year's list, I have a strong suspicion that today's nominee will finish strong at year's end.

Workers Held at Gunpoint in Modern-Day

Slavery Operation in Georgia, Feds Allege

The “Penny Pincher” gets sued for retaliation — an update on a 2021 Worst Employer finalist

A OK Walker Autoworks and its owner, Miles Walker, a 2021 Worst Employer finalist, finished dead last in last year's voting, garnering only 7% of the total weighted vote. They may win the prize after all, however. The Department of Labor just filed a lawsuit against the auto repair shop and its owner for retaliation under the Fair Labor Standards Act.

WIRTW #609: the “hugs” edition

Everyone do me a favor and hug your kids a little stronger and a little longer tonight. They all need it.

— Jon Hyman 💉😷 (@jonhyman) January 5, 2022

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

Coronavirus Update 1-6-22: Starbucks become first employer of note to adopt OSHA vaccine-or-test emergency temporary standard

I don't know what you'll be doing tomorrow morning at 10 am. But I do know what most employment lawyers will be doing — their best to follow the Supreme Court oral arguments in the appeal related to the OSHA vaccine-or-test emergency temporary standard for employers with 100 or more employees (as well as the appeal related to the Center for Medicare & Medicaid Services healthcare worker vaccination mandate). 

Starbucks, however, is not waiting for SCOTUS to rule on the legality of the OSHA ETS. It has informed its 220,000 nationwide employees that they must disclose their vaccination status by January 10, and either be fully vaccinated against COVID-19 or be tested weekly by February 9.

Coronavirus Update 1-5-22: What the hell is the CDC doing?

Confused by the CDC's changed guidance on when employees can break isolation? I'm here to help.

The 1st nominee for the “Worst Employer of 2022” is … the crashing chief

Another year, another batch of awful employers for your consideration and your year-end voting. Might as well start off big.

Ogden boss allegedly tries to punch worker, rams his truck

The Standard-Examiner has the details.

Coronavirus Update 1-3-22: Happy 2020 … too 😞

As we start 2022 (HNY!) let's jump in the time machine and look ahead a couple of weeks to what I think is in our immediate pandemic future.

To catch a glimpse of what's coming here in the next 7-14 days, we need only look across the pond to Europe, which has been a great predictor thus far of what our Covid future looks like. For the whole of the pandemic, our Covid experience has trailed that of Europe by 2-3 weeks. Because of the quickened transmission and infection timeline of Omicron, we can likely shorten that to 7-10 days. 

’Twas the Employment Law Night Before Christmas (2021 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas, tweaked for 2021.

As has been the case in years past, you can read my tale below. This year, however, you also get the holiday present of me reading it for everyone.

To all of my readers, new and legacy, thank you all for reading, commenting, and sharing throughout the year, and please have a happy and, most importantly these days, safe holiday season. I'll see everyone on January 3, 2022, 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.

The workers were home all snug on their thrones;
While visions of deadlines danced on their iPhones;
And I at my desk, alone to deal with the crap,
For the one who's in charge gets no holiday nap.

When out in the lot there arose such a clatter,
I sprang from my desk to see what was the matter;
Away to the door I flew in a hurried jolt,
Tore open the shutters and threw open the bolt.

The moon on the breast of the new-fallen snow,
Gave a lustre of midday to objects below,
When what to my wondering eyes did acquaint,
A process server holding a seven-count complaint.

Count One alleged that we had discriminated,
On the basis of race by one irritated;
A denied promotion, gone to someone who's white,
Said the lawsuit I read in the glow of the night.

Count Two, racial harassment, words she had o'erheard,
Does she know the ruckus she's about to have stirred?
Oh, how she had pulled that nasty, evil trigger.
I'd never heard supervisors rhyme something with bigger.

Count Three, it's not just racism she alleged,
Also sexism, to which management pledged.
The boys, she said, we paid so much more than the girls
Yet they do the same work as each workday unfurls.

Count Four, uh oh, sexual harassment;
It's true her manager hoped to be her gent.
But the touching and groping, alleged quid pro quo,
Never did anyone coerce being her beau.

Count Five targeted our vaccine direction.
We denied her ask for a moral exemption.
"Conspiracy," she yelled. "You're part of the elite."
You'll care when Omicron our employees deplete.

Count Six, firing a COVID rule breaker.
Masks she refused, even those made of paper.
Social distancing of six feet or more,
Enforcement can be such an insufferable chore.

Count Seven, wage and hour class action, oh crap!
Did we fall into an FLSA lawsuit trap?
Mis-classifications, non-exempt for exempt,
And off-the-clock work too, my butt cheeks were then clenched.

Not just a lawsuit was waiting, I see.

An election petition from the NLRB.

Ungrateful employees want more pay and respect.

Should I have treated them better, I reflect?

I spoke not a single word, went back to my desk,
And yelled, with none to hear, "Do I ever get to rest?!"
I emailed our lawyer, thru my phone I exclaimed,
"How much trouble are we in? To me please explain!"

He sprang to his phone, gave to me this rejoinder.
"A lot; I'll need a $20,000 retainer."
But I also heard him proclaim, so as not to slight—
"Happy Christmas to all, and to all a good night!"

Announcing The Worst Employer of 2021 🏆

The ballots have been cast. The votes have been tabulated. The results have been certified. It's now my honor to announce the Worst Employer of 2021.

Coronavirus Update 12-21-2021: Employers are starting to get real about vaccinated workforces

Last week marked the one-year anniversary of the Covid-19 vaccine being administered in the United States. Yet, here are some headlines from last week:

• U.S. employers lean toward required COVID-19 vaccinations
• Google is threatening to fire unvaccinated employees
• Kroger to end some Covid-19 benefits for unvaccinated workers
• From mandates to masks, how some big companies are adjusting to Omicron

While we wait for the Biden administration's vaccine mandates to work their way through the courts (this past weekend's 6th Circuit pronouncement notwithstanding), employers are taking matters into their own hands. Fueled by the exponential surge in Delta-related Covid cases, and the real and palpable threat of a more contagious Omicron variant looming and starting to wreak havoc, many employers have simply run out of patience with unvaccinated employees.

Coronavirus Update 12-20-21: OSHA’s “vax or test" mandate is back on … for now

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

That's what OSHA posted on the heels of the 6th Circuit's decision dissolving the 5th Circuit's stay of the agency's "vax or test" emergency temporary standard. 

BREAKING NEWS: 6th Circuit dissolves stay and re-starts OSHA’s vax-or-test emergency standard

In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here. 

In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority. 

WIRTW #608: the “back and forth” edition

Before we get to the links of others that you might have missed this past week, I thought it best to look back on my own links that you also might have missed in the hustle and bustle of your workweek.

1/ Voting is open for the Worst Employer of 2021, and will remain open until 11:45 pm on Monday. If you don't vote, you forfeit your right to complain about the results. Vote here.

2/ I guested on this week's episode of Marc Alifanz's and Kate Bischoff's Hostile Work Environment podcast (my favorite employment law podcast, with two of my favorite people), running down the eight Worst Employer finalists. Listen on Apple Podcasts, Spotify, or wherever you get your podcasts.

3/ Episode 4 of The Norah and Dad Show is live on Apple Podcasts, Spotify, or wherever you get your podcasts. Please consider subscribing to our show in your app of choice so that you never miss an episode, and, as Norah says every week, we'd love your 5-star reviews on Apple Podcasts and 5-star ratings on Spotify (which just launched its podcast ratings).

Here's the plan for the remainder of the year. After regular posts on Monday and Tuesday, on Wednesday I'll announce the winner of the Worst of Employer of 2021. Finally, on Thursday I'll wrap up the year with my annual reading of 'Twas the Employment Law Night Before Christmas, which will have a companion video if I get my stuff together over the next few days.

Have a great, safe, and healthy weekend. Here's this year's final list of the best things I read online over the past week that I think you should be reading, too.

Coronavirus Update 12-16-2021: Who peed in the 6th Circuit’s cornflakes?

Yesterday, the 6th Circuit issued its first substantive opinion in the consolidated case that will determine the legality of OSHA vax-or-test emergency temporary standard. The opinion didn't determine any matters related to the substance of the mandate itself; it only addressed the procedural issue of whether the case would initially be heard by a three-judge panel of the 6th Circuit or an en banc panel comprised of the entire court. The answer — a three-judge panel initially will hear the case. 

Tragic workplace emergency safety lessons from a candle factory

Thus far, eight employees have tragically died inside the Mayfield Consumer Products candle factory from the tornado that tore through Mayfield, Kentucky, and left the factory a pile of rubble. That number, however, could have been much less.

According to NBC News, as the storm warnings came and tornado sirens blared, as many as 15 employees asked managers for permission to leave so that they could take shelter in their own homes. Instead of granting permission, managers threatened to fire anyone who left their shift early. Now at least eight employees are dead, and many more are injured. 

Who are this year’s crop of nominees for The Worst Employer of 2021? Check out today’s episode of Hostile Work Environment to find out.

I had the pleasure of guesting on this week's episode of my favorite employment law podcast, Hostile Work Environment, hosted by my good friends, Marc Alifanz and Kate Bischoff. In what is becoming an annual tradition, they had to me on to discuss this year's crop of Worst Employer nominees. I walk through all 8. 

Thus, if you need a refresher before you cast your vote, I highly recommend heading to your podcast app of choice, searching for "Hostile Work Environment," downloading the Dec. 14 episode (entitled, "Jon Hyman Puts Out A Lot"), and subscribing to their show if for some odd reason you haven't yet done so. 

And please VOTE for this year's Worst Employer. Polls remain open until Monday, Dec. 20, at 11:45 pm.

Coronavirus Update 12-14-2021: 800,000 Covid deaths and rising, and many have stopped caring

"Where I Live, No One Cares About COVID," reads the headline in The Atlantic. 

Outside the world inhabited by the professional and managerial classes in a handful of major metropolitan areas, many, if not most, Americans are leading their lives as if COVID is over, and they have been for a long while. …

VOTE for The Worst Employer of 2021

Today is the day you’ve waited for all year. I’ve made my list. I’ve checked it twice. It’s voting day for The Worst Employer of 2021.

Here’s how voting will work. I’ve culled my list of 15 nominees down to the worst 8. To vote, you’ll rank the 8 finalists from 1 (the worst) to 8 (the least worst). Please rank all 8, because every point counts in the final results. The employer with the most points wins (or loses, depending on your perspective).

The polls are now open, and will remain open until 11:45 pm on Monday, December 20. I’ll then tally the vote, certify the results, and announce this year’s winner on December 22.

Click here to vote: https://www.surveymonkey.com/r/RW7PR82

Follow this link for a refresher on this year’s 8 nominees. The ballot also contains hyperlinks back to the original nominating posts.

Happy voting, and good luck to all of the nominees. May the worst employer win!

WIRTW #607: the “broken record” edition

Earlier this week a local hospital system held a webinar entitled, COVID-19: Omicron, Vaccines, and Anti-Virals. The news is sobering. 

Covid is surging, yet again. Delta is wreaking havoc on populations in colder-weather states. Moreover, we don't yet know or understand exactly what Omicron means for the future of this pandemic. Unvaccinated populations remain at the highest risk for serious illness, hospitalizations, and death, but those who are fully vaccinated still must act with caution. The news is that we are in for a long winter. And it's not just the virus itself that we have to worry about, but the impact of the virus on our healthcare systems. ICUs and hospital beds at capacity mean diminished care and strained healthcare workers.

None of this is good news. Yet, it's the same news we've heard since March 2020. And the best practices to combat Covid remain the same. If you're not vaccinated, get vaccinated. If you're not boosted, get boosted. Regardless, wear a mask to protect yourself and others. Limit contact with unvaccinated people. Practice good hand-washing and other hygiene habits. And for God's sake, if you don't feel well or have any possible symptoms of Covid-19, stay the frick home until you've tested negative.

While we all might be done with Covid, it's not done with us. We all just need to act like it. Now I sound like a broken record.

I can't leave you for the week with all bad news, so before I turn today's post over the employment law links, I have two other links to share with you.

First, before there was The Norah and Dad Show (have you downloaded and listened yet?), there was the guest-hosting spot Norah and I recorded for the Rockin' the Suburbs podcast. Our episode, in which we discuss daddy/daughter concert experiences, went live today. You can listen to it here, or wherever you get your podcasts.

Secondly, I have a movie recommendation. Check out Mixtape on Netflix. It's an utterly charming, family-friendly movie set in 1999 about a quirky 12-year-old who sets out to learn about her deceased parents through the songs on an old mixtape of theirs she found in her grandmother's basement. It's the rare family movie that speaks to adults without dumbing down the substance, speaks to children without soaring over their heads, and has the emotional beats and laughs hit equally for both. Also, the music slams. Any scene in a 1999 Pacific Northwest indie record store that accurately showcases early White Stripes is a winner in my book. Bottom line — my house absolutely loved Mixtape, and you should add it to your Netflix List. Highly recommended.

Now, here are the best things I read online the past week that I think you should be reading, too.

Coronavirus Update 12-9-2021: The current state of vaccine mandate litigation

What is the current state of the Biden Administration's three separate federal Covid-19 vaccination mandates, and how should employers be responding. In this short video update, I discuss where things stand and what it means.

The 15th nominee for the “Worst Employer of 2021” is … the (Not) Better Boss

A little over a week ago Better.com — a digital mortgage lender that Forbes.com recently called a $7.7 billion Unicorn — received a $750 million cash infusion from investors. Two days ago its CEO, Vishal Garg, gathered 909 of the company's employees (nine percent of its total workforce) via Zoom and let them know that their services were no longer needed.

The Norah and Dad Show podcast is live and ready for your downloads

Today is a very exciting day for me. Today is the official launch of The Norah and Dad Show podcast.

It started a month or so ago when Norah (my 15-year-old daughter) and I recorded a guest episode of Rockin' the Suburbs (which you can listen to this Friday). "Dad," Norah said, "We should start a podcast." Never one to discount the wishes of a teenager to spend time with a parent, I quickly agreed, and The Norah and Dad Show was born.

Coronavirus Update 12-6-2021: Masks — the results

On Friday, I asked three simple questions — Do you still wear a maks? If yes, when? If not, why?

Here are the results (and thank you to the nearly 300 of you that took the time to respond).

WIRTW #606: the “masks” edition

Today is Day 632 of the COVID-19 pandemic, and somehow we are still debating the efficacy of masks. While we ride out the current wave of Delta infections and sort out just how dangerous Omicron actually is, the best advice we still have is to mask up for safety. 

The UK, for example, has just reinstituted its national mask mandate. Meanwhile, here in the US, leaders are urging Americans to wear masks indoors, while some cities have reinstituted indoor mask mandates. Yet, despite the irrefutable science backing the efficacy of masks as among the most effective means to stop the spread of Covid-19, people still resist.

I'd like to know where my readers currently stand on masking, both in use and philosophy. I've put together a short two-question survey — https://forms.gle/MFTS4rJe2WA99bYs7 

Thanks for taking the time. I'll report the results Monday.

Here are the best things I read online the past two weeks that I think you should be reading, too.

Coronavirus Update 12-2-2021: Repeat after me — anti-vax legislation WILL NOT fix workforce shortages

Meet Rep. Al Cutrona, a first-term member of Ohio's House of Representatives, and a Republican who describes himself as "Pro-Constitution." He's also the primary sponsor of HB 218, a bill that would prohibit any employer or school from mandating any non-approved vaccine that uses mRNA technology, and would further require employers and schools to grant exceptions to vaccine mandates for reasons of medical contraindication, natural immunity, religious convictions, or personal conscience.

According to Rep. Cultrona, this law is needed "to address the crisis that the workforce is struggling," to fix workforce "shortages," and to "bring back jobs."

The problem, however, is that vaccine mandates are not causing The Great Resignation. There are lots of reasons why workers are quitting their jobs in record numbers, but vaccine mandates are not one of them, according to the World Economic Forum.