NLRB dismisses charges against lawyers for alleged “union busting” against the employees of its client … but let’s not celebrate yet

One law firm has been at the center of most of the recent high-profile anti-union organizing efforts in large multi-state employers such as Starbucks, Apple, and Trader Joe's — Littler Mendelson. The Service Employees International Union filed an unfair labor practice charge against that law firm and its responsible attorneys alleging that they violated the National Labor Relations Act by illegally polling Starbucks' employees about their support for the union. 

Thankfully, the NLRB has now dismissed that charge.

WIRTW #635: the “larp” edition

Every now and again a story is so bizarre it's worth taking a minute to pause, reflect, and marvel. 

Let me introduce you to the 4th of July Larp, a group based out of Poland that spends its free time role-playing their view of 2022 America. It's … well, it's a thing. You'll have to check it out for yourselves to fully appreciate what's going on here. I'll leave it to you to judge how accurately they peg the current state of our country.

I do, however, have one bone to pick. And it's a big one. What's with the Cleveland Browns jersey? I think the Dallas Cowboys would be a much better representation of 'Murica than my hometown Browns.

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

Unlike ordering at Chick-Fil-A, legal compliance isn’t chosen from a menu.

"We are looking for volunteers for our new Drive Thru Express!🚘 Earn 5 free entrees per shift (1 hr) worked. Message us for details"

Anyone see anything wrong with this (since deleted) post? I sure do, as does my friend Suzanne Lucas (aka the Evil HR Lady), who correctly points out: "You cannot do this. Even if you want to declare yourself the Lord's chicken, you are still a for-profit business, and for-profit businesses cannot have volunteers. Not ever. Paying in sandwiches does not count."

To put in more succinctly, In a for-profit business, volunteer labor is illegal. Hard stop. 

Have you listened to Labor Relatedly yet?

Over the past few years, I've toyed with the idea of launching my own legal podcast. Two things have held me back. First, I don't really want to add another "thing" for me to manage. Secondly, other people ask me to guest on their podcasts and I feel like I'm getting enough bang for the podcasting buck that the added time of recording and producing my own show wouldn't justify any additional return.

Thus, I jumped at the chance when my friend Michael VanDervort asked if I wanted to join his existing podcast, DriveThruHR, as a recurring co-host to discuss all things labor relations in light of current and historic rise in union organizing. 

Posting about litigation (actual or potential) is a terrible idea

Until yesterday, Erin Overbey worked as an editor at The New Yorker. Shortly after her termination, Overbey took to Twitter to write about her termination. Across 35 tweets, she accuses the magazine of retaliating against her because of she had previously raised concerns over its lack of equity and inclusivity. 

While the allegations are interesting, I instead want to focus today's lens on the idea of tweeting about a matter in litigation, or reasonably expected to head in that direction. What I'm about to say holds true for employees and employers.

Cursing in the workplace

According to one survey, 57% of American employees admit to swearing at work. (Count me in the "yes" column.)

Where is the line between swearing as harmless workplace banter and swearing as harmful unlawful harassment? The seminal case is Reeves v. C.H. Robinson Worldwide, which involved the female plaintiff's offense to the salty language used by male co-workers in nearby cubicles.

WIRTW #634: the “%@$&*!” edition

Vacation 💑

I love trivia, even if it doesn't always love me back.

For example, in 1993 my collegiate trivia bowl team lost in the university finals. (For the record, I've always been more than suspicious of the fact that the winning team were fraternity brothers with the quiz master and knew the answer to nearly every question almost too quickly.)

In November 1999, I lacked the fastest fingers on Who Wants to be a Millionaire. ("Where's the proof," you ask? Here you go.)

Thus, when my niece asked if we wanted to do trivia night at a local winery during our visit last week, my answer was a resounding, "Yes!" (For the record, she had me at winery; trivia just provided the exclamation point.)

What's better than trivia night at a winery? Barnstorming into town and winning trivia night at a winery … which is exactly what we did. Correctly answering 16 out of 21 questions earned us a three-way tie for first place, which we broke by naming all seven dwarfs the quickest. 

Of the five questions we answered incorrectly, one stuck with me as the most interesting and obscure. So today I'm sharing it with you.

What is the word for a string of typographical symbols (such as %@$&*!) used in place of an obscenity, especially in comic strips?

Take your best guess in comments, and I'll provide the correct answer on Monday. No Googling!

Here's what I read and listened to this week and last week that I think you should be reading and listening to, too.

We need to talk about litigation holds and spoliation of evidence

The situation playing out in real time between Congress and the Secret Service over text messages related to the Jan. 6th insurrection is quite the teachable moment on litigation holds and spoliation of evidence.

On Jan. 16, 2021, Congress sent the Department of Homeland Security (which oversees the Secret Service) a broad preservation and production request for documents related to Jan. 6, which included communications "received, prepared or sent" between Jan. 5 and Jan 7. 

Following the Jan. 16 request, the Secret Service explained to employees that it was up to them to preserve records from their phones and provided a step-by-step guide to preserve mobile phone content, including text messages, prior to a phone migration that occurred on Jan. 27. That migration, however, appears to have caused a widespread destruction of data, as the Secret Service has only been able to produce to the Jan. 6 Committee one text message from the critical three-day window.

What went wrong? 

A lot, apparently.

A modest proposal to revamp continuing legal education credits #CLECreditsforBlogging

"I'm finishing all my CLE credits this week. It amazes me how if you keep up with law changes regularly how out-of-date these CLEs feel."

That's an excerpt of a recent conversation between my friend, Kate Bischoff, and me. Kate is 100 percent correct. I learn very little, if anything from the continuing education courses I take. I take them because the Ohio Supreme Court requires me to check a 24-credit box every two years, not because they offer me any educational value.

Abortion travel benefits don’t discriminate against non-abortion-seeking pregnant workers

Within hours of the Supreme Court releasing its opinion in Dobbs v. Jackson Women’s Health Organization and reversing Roe v. Wade, DICK'S Sporting Goods announced that it will provide up to $4,000 in travel expense reimbursement for an employee, spouse, or dependent enrolled in its medical plan (plus one support person) to travel to the nearest location where abortion care is legally available. 

Last week, America First Legal, an ultra-conservative non-profit legal group run by "patriots" such as Stephen Miller and Mark Meadows, filed a charge of discrimination with the Equal Employment Opportunity Commission asking the agency to conclude that DICK'S offering of abortion travel benefits discriminates against female employees who choose to give birth. According to America First Legal Senior Counselor and Director of Oversight Reed D. Rubinstein, "Subsidizing travel for an abortion, while denying an equivalent benefit to a mother welcoming a new baby, is perverse and unlawful."

This is why I (almost) always recommend that employers provide terminated employees a reasonable severance package

Roosevelt Jointer worked as a maintenance supervisor at Tesla from September 2017 until last month. That was when his manager called him over the phone, during Jointer's vacation, to tell him that he had been fired. 

Business Insider quotes Jointer about what was said during that call:

I did not receive any advance notice that I would be losing my job. Up to that point, no one at Tesla ever raised any issues with me regarding my performance.

During this call, my manager told me that I would receive a severance offer over an e-mail and urged me to sign a separation agreement to get a severance payment of one week's salary [and two months of health insurance].

He did not sign the agreement. 

WIRTW #633: the “what I’m listening to” edition

I'm weird. I travel to my office for work every day possible. Not my "home office," but my actual office, inside my law firm, in a building with our name on it. Working in an office, as opposed to working remotely from my home, offers many benefits. I get to collaborate with and better know my co-workers. It fosters a sense of community and belonging within my business. It gets me out of my house (and t-shirts). And it provides a daily commute that enables me to listen to podcasts.

"Which podcasts," you ask? Here's my current Top 5 list (excluding any I've previously recommended to you).

1/ Films To Be Buried With — Hosted by Brett Goldstein (aka Ted Lasso's Roy Kent), each episode features a celebrity guest telling the story of their life through a history of movies (first movie they remember seeing, sexiest movie, best movie, etc.). It's always a compelling and entertaining listen, even when the guest is some British comedian I've never heard of. 

2/ Slow Burn — Each season of this podcast, produced by Slate, tackles, in long form, a political issue from our recent history. Past seasons examined Watergate, Bill Clinton's impeachment, Rodney King and the L.A. Riots, and David Duke. The current 7th season, which examines Roe v. Wade and the history of abortion legislation and politics, is an important listen in this specific time in our history.

3/ The Bittersweet Life — Ever wonder what it's like to live as an expat in a foreign country. This podcast, hosted by one current expat living in Rome and another who's since moved back to the States, makes a pretty compelling case to pitch it all and move to Europe.

4/ Ghost Church — Religion has always fascinated me. Not because I'm particularly religious (I'm not), but because I want to understand what draws others in. In this limited series, comedian Jamie Loftus (check out her other excellent show, My Year in Mensa) explores, investigates, and interrogates American spiritualism, a century-old tradition of communing with the dead that takes place in camps full of mediums. It's also quite funny without mocking this faith in the least.

5/ Things Fell Apart — I don't think I'm breaking any news by telling you that our country is in the midst of a significant culture war. This BBC podcast examines various pressure points that are currently ripping our country apart (e.g., abortion, LGBTQ+ rights, sex education) by talking to people on both sides of the front lines.

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

A Q&A on service animals at work

The EEOC has sued Hobby Lobby, accusing the arts-and-crafts retailer of refusing to reasonably accommodate a cashier by declining her the use a service dog and ultimately firing her.

The agency shares the details in its press release:

According to the suit, the employee advised her manager that she needed to bring her fully trained service dog to work to assist her with symptoms caused by PTSD, anxiety and depression. The company's human resources representative met with the employee to discuss her request but concluded the dog would present a safety concern because a coworker or customer might be allergic to or trip over the dog, or the dog might break something. Even though Hobby Lobby allows customers to bring service dogs and other dogs to the store, managers were unwilling to allow the employee's service dog in the store to see whether there was an actual safety concern. Hobby Lobby ultimately terminated the employee when she could not work without her service dog.

Having a disability is NOT an excuse for mistreating others

I've written before about BrewDog (here and here), the multinational Scottish craft brewery accused by hundreds of former employees of systemic mistreatment through its sexist and misogynist work environment. The brewery's founder and CEO, James Watt, stands at the center of much of controversy and most point to him as the root cause of most of the allegation.

Earlier this week, Watt appeared as a guest on The Diary of CEO podcast. During the interview, Watt blamed his pattern of mistreatment of employees him possibly being autistic.

Forced religion and work do not mix

I believe that everyone's relationship with God (whether you call that deity God, Yahweh, Jesus, Allah, Vishnu, Buddha, something else, or nothing at all) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today's discussion, which focuses on a Title VII lawsuit the EEOC recently filed against Aurora Pro Services, a North Carolina residential home service and repair company, alleged to have required employees to participate in religious prayer sessions as a condition of employment.

WIRTW #632: the “it's been a week” edition

From the Supreme Court's opinion terminating the constitutional right to abortion … to other Supreme Court opinions allowing and endorsing the open carry of firearms, prayer in public schools, the public funding of religious schools, and global warming … to the grim details of the near end of our republic laid bare by the brave Congressional testimony of Cassidy Hutchinson, it's been one hell of an exhausting, sad, and enraging week.

Weeks like this one demand a breather. So today, no law (other than the below list of links to read). Just music. 

Enjoy my daughter's cover of Alanis Morissette's "Hand in My Pocket", recorded live at her gig last weekend at Akronym Brewing. (She's quite the busy musician this summer; you'll find all of her upcoming gigs listed on her website, including upstate New York, on July 15.)

Everyone please have safe, relaxing, and peaceful holiday weekend, full of family, food, and frivolity. I'm not feeling particularly patriotic these days, but I'll nonetheless find a way enjoy my burgers, beer, and breather. 🍔 🍺 😌

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

Court dismisses employees’ race discrimination claims against Whole Foods based on prohibition of BLM masks

A group of Black and non-Black Whole Foods employees claimed that their employer unlawfully discriminated against them because of their race and their association with people because of their race based on their employer's prohibition of the wearing of "Black Lives Matter" face masks starting in June 2020 following the death of George Floyd.

“Abortion discrimination” = illegal pregnancy discrimination … even after Dobbs

Is it legal to fire an employee who has an abortion? This is question that a lot of employers and employees will now be asking in light of the Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization that that there is no constitutional right to abortion.

As controversial and divisive of an issue as abortion is (perhaps now more than ever), the law is clear that an employer cannot fire an employee for having one. Nothing the Supreme Court did in Dobbs changes this.

Federal appeals court rejects reliability of electronic signatures on employment agreements

During a webinar I recently conducted on employee handbooks, someone asked me a question about the best practice between wet signatures vs. e-signatures on handbook receipts. I answered that either was fine, but at least with the digital footprint of an e-signature you avoid the disingenuous "that's not my signature," or the "I don't ever remember signing that" we sometimes hear from plaintiffs in deposition. 

Then I read Barrows v. Brinker Restaurant Corp.

The best response to the end of Roe v. Wade came from a company called DICK’S

Within hours of the Supreme Court announcing its decision in Dobbs v. Jackson Women’s Health Organization, Lauren Horbart, the President and CEO of DICK'S Sporting Goods, posted the following on LinkedIn.

At DICK’S, our teammates are the heart of our business, and we are committed to protecting their health and well-being.… 

In response to today's ruling, we are announcing that if a state one of our teammates lives in restricts access to abortion, DICK'S Sporting Goods will provide up to $4,000 in travel expense reimbursement to travel to the nearest location where that care is legally available. This benefit will be provided to any teammate, spouse or dependent enrolled in our medical plan, along with one support person.

We recognize people feel passionately about this topic -- and that there are teammates and athletes who will not agree with this decision. However, we also recognize that decisions involving health and families are deeply personal and made with thoughtful consideration. We are making this decision so our teammates can access the same health care options, regardless of where they live, and choose what is best for them.

WIRTW #631: the “(not so) Good Ship BrewDog” edition

Job interview: "Are you planning on having kids? Do kids feature in your five-year plan? Because we want someone in this role for a minimum of five years."

Answer: "I've never wanted kids. Never have; never will. I've been told I probably can't have kids anyway."

Follow-up phone call: "You're the best candidate for the job. You're everything that we've been looking for. You'd be absolutely perfect for the role. But we need to clear things up with this whole 'kids' thing."

Answer: "I don't want them, it's not part of my plan, and I can't anyway."

Final conversation: "We can't hire you because of the whole 'marriage and babies' thing."

That what Alice Hayward claims happened to her at BrewDog when she applied for a promotion from bar work into a sales position, as reported by the BBC in the Good Ship BrewDog podcast. I've absolutely devoured this six-episode podcast over the past several days. (Bonus points for the narrator's lovely Scottish brogue.)

If you're curious about the damage that a toxic work culture can cause, I cannot more highly recommend this podcast. While the entire show is a master class in how not to manage employees, I thought episode 5 — which focuses on BrewDog's expansion into the U.S. — was the standout.

Good Ship BrewDog also underscores why I decided to become a beer lawyer. Our industry is cool, fun, and full of great people. Yet, there is still so much work to do.

Before I get to this week's list of links, I'll leave you with this thought I found on Instagram.

Regardless of how "hype" or "good" the beer is, stop supporting breweries … who perpetuate problem behavior.

Businesses have little financial incentive to cease misogynistic, homophobic, transphobic, racist, and other problematic behavior if we who stand against it and believe it's dangerous and wrong keep supporting them with our wallets. 

Or, to put it another way (quoting Jim Vorel in Paste Magazine, from a recent story on another brewery, Tired Hands — more on their story next week): "If we look away, the beer world's sexism will always return to the status quo."

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

THIS is how you help a struggling employee

Peter Gabriel sits on my personal Mount Rushmore of musical artists. He's also its longest resident, first etched during my high school years. I did not get the chance to see him play live, however, until the summer of 1994, Aug. 8, to be precise. He played the Stabler Arena at Lehigh University, a warm-up gig for his set six days later that would close the Woodstock '94.

Paula Cole, who had not yet struck it big herself, was Peter's main backing vocalist. She joined that tour for its final two legs, replacing Sinéad O'Connor. 

For that final leg of the tour (which included the date I attended), Peter added Don't Give Up to the set, a song originally made famous for Peter's duet with Kate Bush on the So album. The show I attended was one of the first (if not the first) at which the band performed Don't Give Up. Unfortunately, about half-way through, Paula Cole had a bit of a problem with the lyrics and went completely silent through her part while band kept playing.

Peter jumped in. "It's been a while since we've done this one." Paula then composed herself enough to finish the song (beautifully and brilliantly, I might add).

But it's what happened next that stuck with me for the past 28 years. 

Is there a statute of limitations on old social media posts?

"LET ME SALUTE TO HITLER THE GREAT. He said 'i would have killed all the jews of the world, but I kept some to show the world why i killed them.'"

"F**k that Jew."

"who bothering ya!!! Let me at em! Lol if it's a Jew give me their @ and I'll do it 😂 😂 😂"

These are three examples of many recently discovered blatantly and offensively anti-Semitic tweets allegedly posted by Ismail Quran, Cleveland's "Police Officer of the Year" for 2019.

The thing is, they all pre-date Quran joining the department, and some are a decade old.

Apple becomes the latest national retailer to succumb to the union wave

Workers at the Towson, Maryland, Apple Store made history by becoming the first such store to vote to unionize. It wasn't close, with 65 "yes" votes and 33 "no" votes (12 eligible employees failed to cast a vote). Apple joins Starbucks, Amazon, and REI as major national retailers bit by the union bug, with petitions pending a myriad more Starbucks outposts, other Amazon facilities and Apple Stores, and other retailers such Trader Joe's and Target. In other words, the union wave is becoming a tsunami.

If you're wondering what's fueling this historic drive to organize, the Department of Labor thinks it has some answers.

The DOL believes it all comes down to employees demanding a voice.

The 8th nominee for the “Worst Employer of 2022” is … Vince McMahon

Over the years (for now former) WWE Chairman and CEO Vince McMahon has been accused of some awful treatment of employees. For starters, wrestling's first ever female referee accused him of rape after she refused to perform fellatio on him. And then there was 1994's criminal trial in which the United States accused McMahon of supplying illegal steroids to wrestlers. (For the record, McMahon was exonerated of both allegations.) These allegations don't include others of mistreatment of wrestlers, such as allegedly allowing for the unsafe working conditions that led to the in-ring death of Owen Hart, or not providing wrestlers health insurance because they are classified as independent contractors and not as employees.

But it's the allegations against Mr. McMahon that The Wall Street Journal brought to light last week that has earned him his nomination as the Worst Employer of 2022.

WIRTW #630: the “just like heaven” edition

I love sharing clips of my daughter playing music. It's made for such a cool catalogue of her growth as an artist over the years. So, here's a snippet of her cover of The Cure's Just Like Heaven from her show a couple of weekends ago. 

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Norah has quite the busy summer of music with gigs all over Northeast Ohio (and maybe even a gig or two outside of Ohio). Stay tuned for more clips as the summer progresses.

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

The 7th nominee for the “Worst Employer of 2022” is … the murder enabler

"It is with a deep sadness and a heavy heart I share one of our students, Riley Whitelaw, passed away over the weekend. Currently, we are unable to share additional information."

That was the introduction from a letter Air Academy HS Principal Dan Olson sent to students last week.

As you can imagine, the "additional information" is heartbreaking.

Riley Whitelaw, age 16, worked at a local Walgreens. According to KKTV 11 News, last year she told store managers that a coworker, Joshua Johnson (age 28), was making advances towards her that made her uncomfortable. On June 11 a manager discovered Ms. Whitelaw dead on the floor of the breakroom with neck injuries and covered in blood. Johnson is currently in custody on first-degree murder charges.

Making threats vs. stating facts during union organizing

"Just know that if you unionize, when you are negotiating your benefits, you could gain, you could lose, or you could stay the same."

This is what Neha Cremin, a transgender and pro-union Starbucks worker, claims her manager told her. She alleges in her unfair labor practice charge with the National Labor Relations Board that the statement was an anti-union threat. How? 

1/ The company's health insurance covers gender reassignment surgery (include travel expenses) and other gender-affirming procedures such as hair transplants or breast reduction.

2/ Cremin's manager knew that she had previously used those benefits. 

3/ Therefore, mentioning the possibility of losing benefits during collective bargaining was a threat to take away trans health benefits after a union victory.

The manager's statement was not unlawful under the National Labor Relations Act, no matter how Cremin interpreted it or is attempting to spin it in her unfair labor practice charge.

Ohio decides arming teachers is the solution to mass shootings in schools; Ohio is very wrong

Yesterday, Ohio Governor Mike DeWine signed a new law that will lower the training hours school personnel to be armed from about 700 hours to a mere 24 hours — four for scenario-based training plus 20 for first-aid training, school-shooting history eduction, and reunification education.

This law is the worst possible idea to solve our gun violence and school shooting epidemic. Here are six reasons why.

LGBTQ+ rights vs. religious liberty

"It's an abomination to God. Rainbow is not meant to be displayed as a sign for sexual gender."

That's what Daniel Snyder wrote on the electronic bulletin board of his employer, Arconic. According to the Des Moines Register and Snyder's recently filed lawsuit, it's also what got him fired.

WIRTW #629: the “podcast appearance” edition

Earlier this week I had the pleasure of appearing on the Decision Vision podcast. The topic of discussion: "Should I allow my company to unionize?"

In an answer that should surprise absolutely no one who's been reading along, my answer is a firm, "No."

Part of my reasoning is that I do not believe unions continue to provide a necessary and valuable service for the employees they represent.

You can listen to the full interview here, or wherever you get your podcasts.

While we're talking about podcasts, please don't forget to listen to this week's episode of The Norah and Dad Show, available on Apple Podcasts, Google Podcasts, Spotify, Overcast, Stitcher, our website, and everywhere else podcasts are available. We discuss fructose malabsorption, the end of Norah's school year, her first gig of a very busy summer of music, Mexican food, sewer tweets, memes for Jesus, and Frustoseaid 88. 

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

Can you legally close a facility in response to unionization?

Almost two months to the day that workers at the College Ave. Starbucks location in Ithaca, New York, voted to unionize, the coffee conglomerate announced its intent to close the store on June 10. Employees claim that the closure was in retaliation for unionization and a post-vote wildcat strike over an overflowed grease trap.

In a tweet, Starbucks stated that the decision to close that store was not "easy" and that it was based on "many factors." The store's workers allege in an NLRB unfair labor practice charge that the only "factor" is illegal retaliation.

Do the employees have an argument? Can a company close a facility in response to unionization? Not surprisingly, it depends.

The 6th nominee for the “Worst Employer of 2022” is … the sexual harassment ignorer

All of the following allegedly happened during the mere five weeks that Hannah Navarro worked at a Pratville, Alabama, Chipotle restaurant.

• On Navarro's first day of employment, Nick Baker, the store's general manager, said that she could sit on his lap.
• A few days later Baker told Navarro that she could be his "boo." He then grabbed her arm when she told him that she had a boyfriend and declined.
• Baker (along with other male employees) would pass around pictures of female employees (including Navarro), visit their social media accounts, and make open comments about their bodies at work.

Surveilling your employee’s online activity to out union supporters is illegal … like, really, really illegal

Elon Musk. The name itself evokes a visceral reaction. Electric car visionary. Astronaut wannabe. Opponent of remote work. Potential Twitter owner. Failed SNL host. 

And, according to CNBC, Musk is also a spy, illegally surveilling his employees' online activities during a 2017 and 2018 union organizing drive at one of Tesla's factories.

WIRTW #628: the “summer tour” edition

Outdoor music season is beginning here in Northeast Ohio, which means that my daughter has a bunch of shows booked for the summer … starting this coming Sunday from 4 - 6 pm at Crocker Park.

You’ll find all of the specifics for all of the shows, including locations and, when available, performance times at norahmariemusic.com. Please stop by and say hello.

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

Mere "discouragement" is enough to state an FMLA interference claim, federal appeals court holds

"You've taken serious amounts of FMLA … don't take any more FMLA. If you do so, you will be disciplined."

That's what Salvatore Ziccarelli, a corrections officer with the Cook County Sheriff's Office suffering from PTSD, claimed that the FMLA manager, Wylola Shinnawi, told him upon expressing his intent to enter an eight-week in-patient treatment program. 

Based on that conversation (the substance of which Shinnawi disputed), Ziccarelli decided to retire … and sue his employer and Shinnawi for FMLA interference.

Do you know? Unfair labor practice strikes

Workers who recently organized a Peoria, Illinois, Starbucks walked off the job on a recent Saturday in protest of alleged unfair labor practice committed by their employer at the store. The strike lasted a half-day and there are reports of similar strikes at other stores around the country.

Week.com quotes one employee on the picket line, Jon Gill, "Starbucks is breaking the law. Starbucks is retaliating against us, and if we do not organize ourselves to fight back, then we are showing Starbucks that we are allowing them to break the law."

Union yes? Employees, be careful what you wish for.

On Jan. 7, Great Lakes Coffee Roasting in Detroit temporarily closed following a Covid outbreak that sidelined nine employees. It never reopened, and now it's closed permanently.

What happened? A labor union happened.

WIRTW #627: the “you’re 16” edition

Everyone please wish my smart, compassionate, talented, beautiful, kick-ass daughter a happy 16th birthday!!!

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

Explaining the “Golden Age of Union Organizing”

Unions aren't just having a moment, they are having their best moment in at least 50 years.

• What has caused the "perfect storm" of union organizing that employers are currently experiencing?
• How have the White House's policies impacted unionization and collective bargaining?
• What explains the trend of smaller, "in-house" unions, such as those seen at Starbucks and Amazon?
• How should employers assess their labor strategies in response to these changes?

This week, I joined the ProjectHR Podcast to discuss The Golden Age of Union Organizing, the forces that are helping to cause it, and how employers should be responding and reacting.

Here's a preview of what you'll hear in the episode.

You can listen to the entire episode here, or wherever you get your podcasts.

Breaches of confidentiality during internal investigations chill future reports of workplace misconduct

"Nothing you share will be attributed to you and your feedback will remain anonymous."

That's what an HR consultant advised employees of BrewDog prior to their participation in an anonymous workplace culture review of the international brewing company.

Kate Bernot reports at Good Beer Hunting, however, that at least one former employee who participated discovered that her personal information was provided to company leadership.

Charlotte Cook says her name and details of conversations about her time at BrewDog—which focused on workplace safety, problems with human resources, and the circumstances under which she left the company—were provided by [HR consultant] Wiser to BrewDog without her knowledge or consent.

Court upholds termination of employee for off-duty Facebook posts critical of Black Lives Matter

"Black lives" matter causes segregation. Have you ever hear[d] of "white lives" matter or "[J]ewish" lives matter[?] No. Equal opportunity.

That's what Heather McVey posted to her personal Facebook account in the wake of George Floyd's murder and the ensuing Black Lives Matter protests.

An administrator of the hospital at which McVey worked as a nurse discovered her post, and, following an investigation the hospital fired her. Its stated reason was that "she posted on her social media a clearly racist dog whistle post, which was inconsistent with the vision and the mission and the core values of AtlantiCare."

Federal court holds that the NLRB doesn’t have a sense of humor

On June 6, 2019, unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations. That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist (which is the direct opposite of left-leaning), posted this tweet from his personal Twitter account: "FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine."

Following the filing of an unfair labor practice charge by someone with absolutely no relationship with FDRLST Media (employment or otherwise), the NLRB concluded that Domenech's tweet violated employees' rights to unionize or otherwise engage in protected concerted activity, agreeing with the administrative law judge that the tweet was an "obvious threat" that "working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize." 

WIRTW #626: the “seminar/webinar” edition

If you're located in Northeast Ohio and don't have our upcoming Wickens Workshop on your calendar, why not? I, along with two of my colleagues, will be tackling the key wage and hour issues facing your business. We'll be joined by Mark D'Agostino of ConnectedHR, who will moderate the panel discussion

Here are the details:

• When: Thurs., June 9
• Light Breakfast: 8 am
• Program: 8:30 - 10 am
• Location: Main Event Avon, 35605 Chester Road
• Cost: Free

Space is limited. Register here by June 2.

If you're not in Northeast Ohio, or you're also looking for a virtual event to attend, on Wednesday, May 26, from 11a - noon, I'll be presenting the webinar Think Before You Click for HR Acuity, discussing the legal and practical impact of social media on your workplace. This webinar is also free. Register here. Bonus: HR Acuity will donate $10 for each person who registers to the Global Giving Ukraine Crisis Relief Fund and the National Network of Abortion Funds.

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

Do we need labor unions anymore?

When I challenge the continued viability of labor unions and the lack of benefits they offer to or confer upon 21st century employees, this is the refrain I often hear.

Minimum wage ✔️
Overtime ✔️
OSHA ✔️  
Child labor protections ✔️
Anti-discrimination laws ✔️ 
ERISA ✔️

None of those laws, I'm told, would exist without the historic efforts put forth by labor unions. 

You know what? That statement is 100 percent correct. Labor unions played a huge role in the passage of the FLSA, OSHA, ERISA, and Title VII, each of which granted a wealth of new rights and protections to employees.

They also help render labor unions irrelevant. 

How do you handle employees talking about “replacement theory” at work?

The "Great Replacement" is a conspiracy theory that certain leftist political forces are bringing non-whites into the United States and other Western countries to "replace" white voters to achieve their political agenda. It is often tied to anti-immigration groups and white supremacists. It's also the motivation that caused Payton Gendron to shoot 13 Black individuals in a Buffalo supermarket this past weekend, killing 10.

It's also way more mainstream than you might think or want to believe, with certain mainstream media outlets substituting its traditional racist and antisemitic underpinnings, including the use of terms of "white genocide" and "Jewish cabal," with a more politically focused narrative. Indeed, one in three Americans believe in "replacement theory."

How do you handle it if an employee complains that co-workers are promoting the Great Replacement? 

Employers, your awful stereotypes in job ads aren’t cute or clever, they’re offensive and illegal

"Meet H&N's newest assistant brewer," the Instagram post began. How nice, a brewery advertising its female-friendly work environment. 

"She always has a smile on her face and never talks back!"

Uh oh! That took quite the turn, and not for the better.

Don’t ask employees about their problems after a union comes knocking

"I'm here to listen."

It's an innocuous enough statement for management to make to employees. What could possibly go wrong when a manager tells employees she's there to "listen"?

If a union representation petition is pending, the answer is a lot.

WIRTW #625: the “war on women” edition

How do you support your female employees amid times of great uncertainty about the continued viability of their reproductive rights and body autonomy? 

On the heels on Justice Alito's leaked majority opinion overturning Roe v. Wade, Levi Strauss & Co. published on its website the following statement.

As the pandemic has shown so clearly, public health issues are workplace issues. Business leaders are responsible for protecting the health and well-being of our employees, and that includes protecting reproductive rights and abortion access.…

Under our current benefits plan, Levi Strauss & Co. employees are eligible for reimbursement for healthcare-related travel expenses for services not available in their home state, including those related to reproductive health care and abortion. There is also a process in place through which employees who are not in our benefits plan, including part-time hourly workers, can seek reimbursement for travel costs incurred under the same circumstances.

Given what is at stake, business leaders need to make their voices heard and act to protect the health and well-being of our employees. That means protecting reproductive rights.

Levi Strauss joins other notable employers such as Amazon, Citigroup, Salesforce, and Yelp in covering employees' abortion-related travel expenses. I say bravo! 

Those are employers' responses. What about the response of a 15-year-old this opinion directly impacts? How does she feel about the Supreme Court taking away her reproductive rights and body autonomy? Listen to this week's episode of The Norah and Dad Show to find out. It's available on Apple Podcasts, Spotify, Google Podcasts, Overcast, Stitcher, through your browser, and everywhere else you find podcasts.

(For more about the legal issues raised by the leaked opinion, I highly recommend Marc Alifanz's and Kate Bischoff's deep dive on the most recent episode of their Hostile Work Environment podcast.)

Here's what else I read and listened to this past week that I think you should be, too