The 12th nominee for the “Worst Employer of 2022” is … the hurricane haranguer

You might know Joy Gendusa, the CEO of PostcardMania, from her April 2020 video in which she called out employees who had reported her company to the local authorities for not following Covid-19 safety protocols. But that's so 2020 Worst Employer.

Gendusa is back in the news, this time for asking her employees to bring their families and pets into the office so that they could continue working during Hurricane Ian. 

In her words, communicated to employees during a Zoom call: "I honestly want to continue to deliver and I want to have a good end of quarter. And when [the hurricane] turns into nothing, I don't want it to be like, 'Great, we all stopped producing because of the media and the maybe that it was going to be terrible.'"

WIRTW #644: the “whitewater” edition

"What's the first film you remember seeing?"

That’s the lead off question on each episode of Films to be Buried With — Brett Goldstein's (aka Ted Lasso's Roy Kent) podcast. Each episode is a long form interview of a celebrity in which they their life story through films. It's a podcast worth celebrating this International Podcast Day and all other 364 days of the year.

The first movie I remember seeing is Race for Your Life, Charlie Brown, a 1977 Peanuts film in which the gang goes to summer camp and takes on a group of bullies in the annual river raft race.

I saw this film at the Woodhaven Mall with Uncle Ron and Aunt Rita … who were most definitely not my uncle and aunt. In fact, I had never met them before that day. I was four years old, and they ran a bus that took groups of kids to the movies during the summer. My parents paid to put their terrified four-year-old on a bus with two strangers to see a movie. I don't remember a thing about that film other than being completely freaked out on that bus and by the entire experience. In fact, it's the scariest movie I've ever seen about a river rafting trip. Thanks, Mom and Dad. 😞

What's the first film you remember seeing? Did it involve two strange adults picking you up at your house on a bus? Or was it an experience as memorable yet less creepy?

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

Correlation isn’t necessarily causation … except when it is

According to a recently filed EEOC lawsuit, Dollar General violated Title VII by firing a sales employee because of her pregnancy. More to the point, Dollar General, the EEOC alleges, fired her immediately after she advised her manager of her pregnancy. It listed "health" as the reason for her termination on her separation notice, after advising her of concerns for her safety.

Never say “nevermind” when child pornography is involved

You may not know who Spencer Elden is, but you almost certainly know what he looked like as a newborn. Spencer, in all of his glory, graces what is perhaps the most famous album cover of all time, or at least of the last 30 years — Nirvana's iconic grunge masterpiece, Nevermind.

Spencer Elden was also recently a plaintiff, as he sued Kurt Cobain's estate, Krist Novoselic, and Dave Grohl for child sexual exploitation based on their use of naked baby image. (He lost, btw, not once, but twice.)

While the lawsuit and its 30-year-old claim certainly seem like a b.s. money grab, it did get me thinking, do you know what to do if you discover child pornography in your workplace, on your network, or on one of your devices?

Here are four thoughts.

Dispelling six common wage and hour misconceptions

19 hours in a workday without overtime pay. That's how one Amazon delivery driver described his experience working for online conglomerate.

To be clear, while it might make for an awful work environment to work a 19-hour shift, there is nothing in the federal wage and hour laws that require overtime pay for a 19-hour workday. 

Overtime under the federal Fair Labor Standards Act is based on hours in a work week, not a workday. (Please check your state laws, employers in Alaska, California, Colorada, and Nevada, as your overtime obligations might be tied to hours in a workday, not work week.) The FLSA only requires time and a half of one's regular rate of pay is required for any hours in excess of 40 in a week. 

While it's easy to imagine 19-hour days quickly adding up to a number over 40 hours in a week, 19 hours in one workday, in and of itself, does not qualify one to overtime pay under the FLSA. 

Workplace romance vs. workplace harassment

The Boston Celtics have suspended their head coach, Ime Udoka, for the entire 2022-23 season.

His offense — it was initially reported that he had violated the team’s policies by engaging in a consensual intimate relationship with a female staff member. 

This punishment seemed … harsh. A year for a consensual relationship? If you don’t want your head coach dating staff, why not just direct him to end the affair with a stern warning not to let it happen again, instead of a year-long suspension? In fact, it seemed so harsh that I knew that there had to be more to this story. 

WIRTW #643: the “til I hear it from you” edition

It's been a busy week, both in the practice of law and in the recording of some podcasts for your listening pleasure.

• Labor Relatedly Ep. 4 — via DriveThruHR
• I Always Feel Like Somebody’s Watching Me: Monitoring Employees' Social Media — via Employment Law Today
• Labor Relations Radio, Ep. 36: Weingarten Rights, What They Are and How They're Likely Coming Back to Non-Union Workplaces — via Labor Relations Radio

As for the other half of The Norah and Dad Show, you can see her perform tonight at Baxter's Speakeasy in Akron and next Friday, Sept. 30, at The Olde Wine Cellar in Olmsted Falls. Both shows are free, although Baxter's has a one-drink minimum, and The Olde Wine Cellar would prefer if you buy a bottle of wine and a flatbread to consume while you enjoy the music.

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

“Pretextual investigation” dooms employer’s defense to ex-employee’s retaliation claim

An employee, Joseph Canada, uses his cell phone to solicit sex from prostitutes during work hours. His employer, Samuel Grossi & Sons, discovers the text messages and terminates the employee for violating its policies against "[u]nlawful conduct which adversely affects the employee's relationship on his/her job, fellow employees, supervisor and/or damages the Company's property, reputation or goodwill in the community" and "[i]mmoral or indecent conduct."

The employee then sues for retaliation, claiming that the termination was in retaliation for filing another lawsuit the month prior claiming discrimination and FMLA violations.

The district court dismissed the retaliation claim, stating that "[n]o reasonable jury could conclude that defendant's proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff's employment was pretextual."

On appeal, however, the 3rd Circuit concluded that the reason for the termination is irrelevant if the investigation that leads to the discovery of the evidence that causes the termination was pretexual in and of itself.

The 11th nominee for the “Worst Employer of 2022” is … the cable guy

When 83-year-old Betty Jo Thomas missed her family's Christmas dinner in December 2019, they went to her home to check up on her. They found her stabbed to death on her living room floor. Footage from Thomas' Ring doorbell revealed that the last person to enter her home was Roy Holden, a (now former) Charter Spectrum field technician.

Holden had performed a service call in Ms. Thomas' home. The next day Holden returned, allegedly off-duty but in his company-issued and branded van, to again help Thomas. While in her home, Thomas caught Holden stealing credit cards from her purse. In response, Holden brutally stabbed her with his Charter Spectrum utility knife and went on a spending spree with her stolen credit cards.

Holden has since been convicted of the murder and is now serving out a life prison sentence.

Thomas' family sued Charter Spectrum over its responsibility for her murder. After a mere two hours of deliberations, a jury recently returned a $7.3375 billion verdict ($337.5 million in compensatory damages and $7 billion in punitive damages). That's more than half of the company's entire quarterly revenue.

Employers, repeat after me: “Tips belong to employees, not employers.”

$1,351,253.34. That's the amount a federal judge has ordered the Empire Diner, its owner, Ihsan Gunaydin, and its manager Engin Gunaydin to pay a group of 107 servers and kitchen workers based on an illegal tip scheme.

What rendered the restaurant's tip scheme illegal? It required servers to turn over 10 to 15 percent of their total tips received on any given shift to pay the bussers' wages. That's a clear violation of the Fair Labor Standards Act.

The NLRB is inching towards Weingarten Rights for all employees

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement are entitled to request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. 

In the 47 years post-Weingarten, however, the Board has vacillated on the issue of whether those rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio, the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative. Finally, in 2017, an Obama-era Board Advice Memo called for the Board to flip again and hold Weingarten rights extend to employees in non-union workplaces.

Which brings us to last week's Board decision in Troy Grove. 

WIRTW #642: the “get off our backs” edition

Can you please get off our backs? By "our," I mean management-side labor lawyers. 

Let me explain.

I just finished listening to the latest episode of the 43-15 Podcast discussing the first group of Petco employees to attempt to organize into a labor union. The hosts were all over the "union busting lawyer" Petco hired to represent it and challenge the employees' organizing. His major sin: "Counseling many companies on labor strategy, union avoidance, and responding to union backed corporate campaigns." Heavens to Betsy, a lawyer doing … wait for it … his job.

Like any other attorney, management-side labor lawyers have a job to do and an ethical obligation to represent their clients zealously. Union organizing and recognition is a decided in an election, in which a majority of employees need to choose to unionize. What are employers supposed to do, roll over and let the union walk in unimpeded? As their lawyers we are simply playing our roll in this process. That's all. Is it adversarial? Sure. Does it sometimes get heated? Of course. But management is entitled to be represented just as do the employees seeking to unionize.

Don't hate the player, hate the game. That's all I'm saying.

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

Pre-employment pregnancy testing?

I was tagged on Twitter to address this situation.

My friend did a drug test for a part time job for the local school district. When she got her results, she found out that the district also did a pregnancy test. Besides ethical issues, this seems like a legal red flag given she wasn't told this would be done.

The OP added that her friend's spouse (male) did the same screening for the same employer, but no pregnancy test.

If it looks illegal, and it smells illegal, then it's illegal. Let's examine why.

Lyfting independent contractor status

If I asked you to identify Lyft's business, how would you answer? 

"They're a transportation company," you'd say. There's no other correct answer … unless you ask Lyft. 

Lyft will tell you that it's a tech company, not a provider of transportation.

The 10th nominee for the “Worst Employer of 2022” is … the sex offender supervisor

The most disturbing case I ever handled involved a company that hired a registered sex offender as a supervisor, who then raped a female subordinate.

Today’s “Worst Employer” nominee is very much in that tragic and devastating vein.

Vice provides the details, which it confirmed with Claire, he co-workers, court records, and even Starbucks itself.

Spotting the employment law issues in “She-Hulk"

Donny Blaze was a former student of Kamar-Taj, having dropped out after failing to adhere to their strict teachings. He left, however, with a souvenir, a sling ring, which sorcerers use to open mystic portals. Blaze then uses the sling ring, along with what he learned during his time at Kamar-Taj, to spice up his otherwise very pedestrian cabaret magic act.

Wong, the Sorcerer Supreme, seeks your legal counsel to file suit against Blaze to enjoin his use of Kamar-Taj's mystic arts. 

What are the potential claims? Let's explore.

WIRTW #641: the “slim shady” edition

Guess who's back, back again…

After a semi-intentional summer break, The Norah and Dad Show — the podcast I host and produce along with my 16-year-old daughter — is back for Season 2. You find us everywhere podcasts are available, including Apple, Spotify, Google, Overcast, Amazon, Stitcher, and via our website. If you're new to the show, please make sure you go back and check out all of Season 1.

While I'm talking about Norah, she has some gigs coming up over the next several weeks: this Sunday, Sept. 11, at the Berea Arts Festival (from 2–3p); Sept. 23 at Baxter's Speakeasy in Akron supporting Chanilla and Sad Harris (8p); and September 30 at The Olde Wine Cellar (starting at 6p). All shows are free, although Baxter's does have a one-drink minimum. Please stop and say hello. 

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

How broad is potential liability for retaliation? THIS broad.

In 2016, Tom Pettay sued his former employer, DeVry University, for age discrimination. The trial court dismissed Pettay's lawsuit on summary judgment. Following that dismissal, the employer filed a motion asking the trial court to award them $4,004.39 for the cost of deposition transcripts used in support of the summary judgment motion. While Pettay's appeal of the court's award of costs was pending, the Ohio Supreme Court held that a prevailing party cannot recover the costs of deposition transcripts. 

As a result, Pettay again sued DeVry (or, more accurately, its successor in interest, Cogswell Education), claiming that it retaliated against him by pursuing a frivolous motion for the costs of the deposition transcripts. 

Like herpes, the NLRB’s efforts to liberalize its joint employer standard just won’t go away

Joint employment under the NLRA has a tortured history over the past seven years. 

Yesterday, the NLRB released a Notice of Proposed Rulemaking (NPRM) to rewrite the standard for determining joint-employer status under the National Labor Relations Act.

Under the current joint employer standard — to which the NLRB adhered until the Browning-Ferris decision in Aug. 2015, and to which it formally reverted in Apr. 2020 — one employer is only a joint employer with another employer if it possesses and exercises "substantial direct and immediate control" over the terms and conditions of employment of another employer's employees.

Joint employment matters … a lot … because if you're a joint employer over the employees of another employer you are jointly and severally liable for the legal wrongs committed by the primary employer. Under the NLRA you also would share collective bargaining responsibility.

WIRTW #640: the “Wickens Workshop” edition

When you take over a practice group and are tasked with building it, you naturally have to think of ways to market and grow it. Presenting semi-regular seminars for clients, prospective clients, and referral sources was low hanging fruit. I can talk about employment law all day long. Just give me a topic, a microphone, and an audience, wind me up, and let me go to work. Thankfully, my cohorts in our Employment & Labor Practice Group feel the same way. 

Thus, Wickens Workshops were born. (Full credit to Matt Danese for the alliterative branding.) Our next event, discussing employee leave of absence issues, will take place on Oct. 20 from 8–10 am.

While imitation is always the sincerest form of flattery, sharing this idea with my co-workers is hardly imitation. It's just smart business. Thus, the Wickens Workshops branding has expanded to include our Business Restructuring & Bankruptcy and Intellectual Property practice groups, which will hold events on the mornings of Nov. 15 and Jan. 18, 2023, respectively. We now have a full-blown series of panel discussions covering a variety of legal areas and topics. 

I hope you can join us. Stay tuned for registration information for each of these events.

Also, if you'd like to hear me speak before our Oct. 20th Workshop, tune in to Lunch Conversations with Randy & Teddy on Wednesday, Sept. 7, from noon to 1 pm, when I'll be discussing all things labor and employment law.

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

Checking the pulse of the American worker on labor unions as we enter Labor Day Weekend

The following stats should be eye-opening for any business owner, CEO, or board of directors.

• 71 percent of Americans "approve" of labor unions, the highest reported approval rating since 1965.
• 70 percent of non-union employees say that they would consider joining a union, up 141% in just three years.
• Unions win approximately 75 percent of all representation elections.

What does all of these stats mean? If a union organizer starts talking to your employees about unionizing, the odds are high that your business will end up unionized. 

Pizza shop closure is a teachable lesson on union avoidance

We are truly heartbroken to announce that we've made the difficult decision to permanently close both Knead Slice Shop and Knead Market effective immediately (August 23, 2022), regardless of the outcome or the occurrence of the requested union election.

We respect the right of workers to organize under the National Labor Relations Act or other appropriate laws. We hope our workers will recognize our related right as an employer, especially a small employer, during these extremely difficult operational times, to close our entire business operation.

We continue to wish our employees well. 

That's what a pizza shop posted to its Instagram last week, announcing its decision to shutter all of its operations, permanently.

NLRB re-writes law on employees displaying union logos at work

Tesla's General Assembly plant maintained the following dress code: "It is mandatory that all Production Associates and Leads wear the assigned team wear." For production associates, "team wear" consists of a black cotton shirt with the Tesla's logo and black cotton pants with no buttons, rivets, or exposed zippers, all which Tesla provides.

In the Spring of 2017, however, certain production associates started wearing black t-shirts with the phrase, "Driving a Fair Future at Tesla," along with the logo for the United Auto Workers.

Tesla banned the UAW shirts under its "Team Wear" policy, claiming that the ban limited the risk of alternative clothing damaging vehicles on the production line and made it easier to keep track of employees on the shop floor.

In a split 3-2 decision, the NLRB held that Tesla unlawfully prohibited its employees from wearing shirts with the UAW's logo. 

The 9th nominee for the “Worst Employer of 2022” is … the active shooter

“This is it. I’m done.”

That’s how one elderly employee described to police her recent experience in an active shooter drill conducted by her employer, Catholic Charities of Omaha, that went as planned but also went very, VERY wrong.

The employer hired John Channels to stage the exercise. It did not tell its employees: (1) that the drill was planned or happening; (2) that Channels would be using a real assault rifle loaded with blanks; (3) or that Channels would stage victims (actors covered in fake blood) around the building for added realism. It also failed to inform the local authorities of the drill, who responded as if it was a real and legitimate active shooter situation.

WIRTW #639: the “Gr8” edition

How does your organization help build collegiality among employees?

At my kids' school they do it in the Lower and Middle School with Family Groups, and in the Upper School with Houses (just like in Harry Potter, complete with a year-long House Cup competition). 

Each Family Group or House is comprised of a cross-grade mix of students. The goal is to build school spirit, classmate and faculty camaraderie, and student leadership skills.

One of the Middle School's best traditions is Community Building Days, two days of non-academic activities shortly after the start of the school year to help everyone get to know one another better. It always takes place on the Thursday and Friday of the second week of school (yesterday and today), and the entire Middle School sleeps over at school on Thursday night.

One additional rite of passage for the middle schoolers is what's known as "Gr8 Night." They sleep over at school for one additional night, the Wednesday night leading into Community Building Days, to further build their leadership skills and to decorate the Middle School in preparation for the arrival of the 6th and 7th graders the next day.

Yesterday morning, the 8th graders welcomed everyone driving onto campus (that's Donovan, in yellow on the left). He looked excited and happy, (relatively) well rested, and ready to tackle what the faculty has to throw at him over the next two days. I can't wait to hear all about it.

Employers, what are you doing to help build camaraderie and collegiality among your employees? The past two and a half pandemic years have been rough on workplace morale and teamwork. I'm curious to learn what you're doing to help bring back some of the sense of "team" that the pandemic and remote work stole from us? Drop a note in the comments below and I'll share some the best or more interesting ideas in a future post.

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

The wage and hour implications of employee electronic surveillance

Every now and again I come across a story that make me question how any in-house counsel blessed a workplace policy or practice.

The following story, taken from yesterday's episode of The Daily on the rise of workplace surveillance, is one of those stories.

Carol works as a Vice President for a bank. Like many white-collar employees these days, she's working remotely from her home. Pretty early on in her employment, she begins to notice that her paychecks are light. Then she figures out why.

Every 10 minutes at random points the company took a screenshot of her computer monitor and a photo of her face. The company was using that information to pay Carol (and every other worker) only for the minutes when they appeared be active according to the photos. If, for example, the photo happened to capture Carol during a moment of inactivity (for example, a 30-second interval when she went to get a cup of coffee), it would dock her for the entire 10-minute span. As you can imagine, the digital tracking actually missed a lot of Carol's work, including any work she did offline. She's working, but the company thinks she's not working, and it's going to dock for that any perceived increments of inactivity. 

There are two HUGE Fair Labor Standards Act red flags here.

Pro athletes should never get a pass on harassment

Kenny Lofton is one of the most beloved players in history of the Cleveland Guardians, née Indians. He spent the best years of 17-year career anchoring center field for the Cleveland teams that won six AL Central titles and earned two World Series berths. 

Post-baseball, Lofton founded Centerblock Asset Management LLC, an investment firm and NFT workplace. In addition to his corporate gig, it also appears that Lofton allegedly spends his time messaging women pictures of his Li'l Kenny on Instagram and firing employees to take issue with it.

“Gaslighting” in the workplace

“That’s not how I told you to complete that project. Why did you do it that way? It’s all wrong.”

“Why didn’t you show up to the meeting? Of course I invited you.”

“Harassment complaint? You never made any harassment complaint.”

These are all examples of gaslighting in the workplace.

Lessons from Platform Beer’s mass layoff

According to Scene Magazine, late last week Platform Beer Co. notified between 25 and 30 of its local brewery employees that their employment was no longer needed. They were laid off. 

That facility brews, tests, cans, packages, and warehouses most of Platform's offerings. The impacted employees were offered severance packages in accordance with their age and tenure. 

When I hear "mass layoff," I immediately think of the WARN Act. WARN stands for Worker Adjustment and Retraining Notification. It's the federal statute that requires 60 days' advance notice of mass layoff or plant closure (or 60 days' pay in lieu of the notice). But it does not apply to every mass layoff or plant closure, only those of a large enough employer that impacts a large enough number of employees.

WIRTW #638: the “DriveThru” edition

Episode 2 of Labor Relatedly, my new podcast endeavor with Mike VanDervort is live everywhere you listen to podcasts. In this episode we discuss the controversy surrounding the Deshaun Watson arbitration ruling, Chipotle writing a $20 million dollar check to settle a wage and hour case in New York, how the Duty of Fair Representation impacts the relationship between unions and employers, and what some common-sense labor law reform might look like.

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

How do you respond when your employees are threatened?

Boston Children's Hospital has a scary situation on its hand. Its hospital staff has received aggressive phone calls, emails, and death threats. It's all in reaction to inaccurate information posted on conservative websites and shared across social media about its transgender surgery program.

The allegations are that its medical staff performs hysterectomies on girls under the age of 18. In reality, the hospital performs hysterectomies on patients age 18 and older, but not on children.

Boston Children's began treating transgender youth in 1998 and opened the first trans health program in the U.S. for adolescents in 2007.

Walmart wins discrimination claim brought on behalf of pregnant employees unable to work

Consider the following two policies:

• Employees injured on the job will be offered Temporary Alternative Duty ("TAD") — light duty that enables the injured workers to keep working and earning their full wages while complying with any relevant medical restrictions.

-vs-

• Pregnant employees with lifting or other physical restrictions related to pregnancy are required to go on an unpaid leave of absence, and no TAD is or will be made available.

In EEOC v. Walmart Stores East, the 7th Circuit Court of Appeals concluded that despite the existence of the former, the latter did not discriminate against Walmart's pregnant employees.

The CDC is the tail wagging the public’s dog

Last week the CDC updated its Covid isolation guidelines. The agency says it's "to help the public better protect themselves and understand their risk." 

Most importantly, there is no longer any distinction between those who are fully vaccinated and those who are unvaccinated against the virus. Instead, the CDC says anyone can end isolation after five days if asymptomatic or if fever-free for 24 hours and other symptoms are improving. Thereafter, one should mask around others either through day 10 or sooner after two sequential negative tests 48 hours apart.

HR may not be employees’ “friend,” but it’s also not their enemy

As the former Microsoft VP of HR I can assure you that HR is not your friend.

That headline from a BusinessInsider article written by Chris Williams, Microsoft's former head of HR from 1997 thru 2000, caught my eye. 

He writes: "Do not see your team's HR representative as a friend. … HR is not your friend. … [T]hey are not paid to be the employee's ally."

On the one hand, Williams is correct. HR is not an employee's friend. But by framing the issue as such, he is suggesting that HR is an employee's enemy. That distinction is damaging. HR is neither friend nor foe of employees. It's their partner. If this is not how HR is working within your company, you need to reexamine why you have HR in the first place.

WIRTW #637: the “down on the farm” edition

I grew up in Philadelphia and attended City of Philadelphia public schools. My high school had 4,500 students and was surrounded by barbed wire fencing. In a lot of ways, it felt more like a prison than a school.

My kids attend cushy suburban private school. It's a luxury that I'm happy to be able to provide to them. They have a wooded 93-acre campus to explore, small class sizes, a unique curriculum not tied to state-mandated requirements, and now an actual farm that doubles as an outdoor experiential classroom. As far as I know it's the only such outdoor space in NE Ohio. 

Dubbed "Aspiration Acres," Lake Ridge Academy dedicated this new addition to our campus earlier this week. It has gardens, a silo, a barn, and a chicken coop with live chickens. Later this year the school will dedicate our new outdoor woodland all-purpose trail, complete with parkour obstacles and a sugar shack that will provide a permanent home for the 2nd the 5th graders' annual maple sugaring. 

For more information, I encourage you to visit lakeridgeacademy.org.

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

Consistency matters when applying anti-harassment rules

Can an employer legally fire an employee who writes "whore board" on an overtime sign-up sheet? Let's explore.

Following unsuccessful negotiations for a new union contract, Constellium unilaterally implemented a new overtime policy that required employees to sign up for overtime on a sheet posted on a bulletin board outside the lunchroom.

Employees were not happy about the new policy. Those who opposed it began calling the overtime sign-up sheet a "whore board," as they believed that those who used it to sign up for overtime were selling out their union. "Whore board" quickly became common slang in the workplace (even among supervisors). There was no evidence that Constellium disciplined anyone for saying the vulgarity.

One employee, Jack Williams, went a step further. He wrote "whore board" on the sign-up sheet. Constellium then fired him for "willfully and deliberately engaging in insulting and harassing conduct."

Employee too distraught to work over Dobbs decision loses job

I haven't been shy about hiding my disgust over Dobbs, the end of constitutional protections for abortion, and the threat to reproductive, women's and other fundamental rights that our nation currently faces. 

Michael Lopez was also disgusted; so disgusted, in fact, that he couldn't even work. Lopez was a production coordinator at Universal Music Enterprises, whose job included processing a weekly Friday report of upcoming releases. Except the Friday that the Supreme Court released Dobbs, Lopez was too upset to do his job. Instead, he sent the following email to his co-workers:

Do you know what to do and not to do when federal agents arrive with a search warrant?

The front door to your business opens, and in walks a column of federal agents with boxes, computer imaging equipment, and a search warrant.

Do you what to do and what not to do? Does your business have appropriate response procedures in place? Any have you trained the person most likely to receive the agents (a receptionist, for example) on how to appropriately respond?

Here are some suggestions.

Does craft beer have a labor problem?

Does craft beer have a labor problem? Julie Rhodes, writing at PorchDrinking, sure thinks so. 

She cites low wages and labor conditions as the two main drivers of her conclusion. 

WIRTW #636: the “what the heck” edition

Another week, another podcast appearance. This week you can catch me on What the Heck is Happening in HR, discussing all things employee handbooks.

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

Alex Jones trial offers a teachable moment on the issue of "inadvertent disclosure”

Suppose you're sitting in your office and your associate excitedly runs in, yelling, "We got 'em! The other side just sent us the entire contents of their client's cell phone, and oh boy are there some smoking guns!"

This exact issue just played out in an Austin, Texas, courtroom in the defamation trial between online conspiracy theorist Alex Jones and the parents of a 6-year-old killed in the Sandy Hook school shooting suing him for lying that the attack was a hoax. The parents had requested in discovery that Jones turn over all emails and text messages related to the shooting. Jones claimed that none existed because he doesn't email or text. Then 12 days ago his lawyer accidentally sent the entire contents of Jones's cell phone to the parents' attorneys.

What happened next would seem laughable if it unfolded during a prime-time legal drama. Indeed, in the immediate aftermath of these events unfolding in court, a former writer for Law & Order tweeted that they "wouldn't have let a lawyer do something that dumb." And yet it actually happened yesterday in an actual courtroom.

Alex Jones, seconds after being told that his lawyer mistakenly send a huge cache of texts to Sandy Hook families’ attorney:

“This is your Perry Mason moment” pic.twitter.com/f6byn6N6VA

— Bill Grueskin (@BGrueskin) August 3, 2022

"Your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you've sent for the past two years. And when informed they did not take any steps to identify it as privileged.… And that is how I know you lied to me about not having any text messages about Sandy Hook."

You won’t like OSHA when it’s angry

OSHA has proposed nearly $1.25 million in penalties against two Ohio Dollar Tree stores. 

The specific violations cited include hazards related to obstructed egress, unstable stacks, and inaccessible electrical equipment and fire extinguishers, in addition to trip and fall hazards caused by water leaking through the ceiling, carts, boxes, trash and merchandise spread throughout walking-working surfaces in the retail areas and storerooms.

These two sets of citation, however, only tell part of the story. 

Accountability starts at the top, even for the NFL

NFL disciplinary officer Sue L. Robinson has suspended Deshaun Watson for six games for his violation of the league's personal conduct policy based on allegations by four masseuses that he solicited prostitution by paying for sex acts.

Some see six games as a slap on the wrist. I don't, at least in the environment that bound Judge Robinson and her ruling.

While I don't in any way condone Watson's misconduct, the NFL would place itself in serious legal jeopardy by imposing a suspension that encourages Watson or his union to litigate.

Don’t be mad at Watson for getting off light; be mad at the NFL for its long history of giving white male owners a free pass for their own sexual misconduct. The league created the legal environment that let Watson (a Black player) off.

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."