$366 million dollars. That's how much a jury awarded Jennifer Harris, a Black sales manager targeted and then fired by FedEx after she complained to human resources that her boss discriminatorily demoted her.
That's $1.16 million in compensatory damages and $365 million in punitive damages.
The trial judge recently rejected FedEx's motion to reduce the punitive verdict as excessive and a violation of its due process rights.
When you try a case, there’s not much within your control. You can’t control the judge. You can’t control the jury. You can’t control your opposing counsel. Sometimes you can’t even control your own witnesses. But the one thing you can control is how well prepared you are, and you are so well prepared.
"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."
"Have you lost your cotton pickin' mind?"
"Too many [blue-eyed people] are reproducing with Brown Eyed People."
Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.
She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist."
The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.
She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …
As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.
This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted.
The employees of Creature Comforts Brewing Co. recently held a rally to announce their intent to form a labor union. They also announced the formation of the Brewing Union of Georgia, an independent union created by the brewery's employees with the stated goal of spreading their movement across their state. Despite the union's "independence," it has received assistance and guidance from assistance from the United Campus Workers of Georgia and the Workers Center at the Economic Justice Coalition.
This is HUGE news for the craft beer industry.
Women are prohibited from showing their bare arms.Women are required to cover their dress with a second layer.
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
1.) Offer strong parental leave programs. The FMLA requires 12 weeks of unpaid leave. Consider offering more, or offering to cover the employee's pay for some/all of the leave. If you're not FMLA covered or the employee isn's FMLA eligible, consider mirroring the statute for your employees anyway.
2.) Ramp up/down policies. Plenty of employees work their full 40 right up until their due date, and jump right back into the deep end of work as soon as their leave ends. But consider a phase out and a phase in with reduced hours on both ends. It helps the new mom's physical health leading up to childbirth and her mental health in returning to work.
3.) Schedule flexibility. Parenting isn't a nine-to-five job. It's a 24/7/365 job that is really good at throwing curveballs to parents. Late nights with little sleep. Unexpected doctor appointments. Visits to the pediatric ER. Do you want a sleep deprived or otherwise distracted employee at work. You certainly won't get their best. So try to be as accommodating and understanding as possible. Flexible hours and remote work help ease the stress caused by the unexpectedness of raising a newborn.
Work for a brewery. GM and owner … informed everyone that we needed to sign a contract essentially stating that if ANY employee was found to be discussing wages, they would be terminated immediately.… As of last week, GM let everyone know that any employee who hasn't signed the paper will be looked at as a voluntary resignation. I should probably add that, of course, we have no union.
This is what we labor and employment lawyers call … what's the term … ILLEGAL.
The City of Cleveland has agreed to pay $50,000 to settle the wage and hour claim of a City Hall employee who claimed that she wasn't paid overtime while working from home during the Covid-19 pandemic.
Eve Bonvissuto, an assistant administrator in the city's public safety department's medical unit, had claimed $68,709 in overtime pay. She alleged that the city had misclassified her as exempt, and that city had no timecard or time-tracking system in place at the time for remote workers.
How bad must sexual harassment be for an employer to settle a harassment case for $2 million? This bad.
AMTCR—the owner of 18 McDonald's franchises across California, Nevada, and Arizona—will pay $1,997,500 to resolve a sexual harassment lawsuit filed by the EEOC.
Two laws — the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act — took effect when President Biden signed the Consolidated Appropriations Act just before Christmas.
There is no law or regulation that requires employers to have a person or persons trained to provide first aid in the workplace. Instead, OSHA's standards (here and here) merely require that an employer ensure prompt first aid treatment for injured employees, either by ensuring that emergency treatment services are within a reasonable proximity of the worksite, or by providing for the availability of a trained first aid provider at the worksite.
The votes have been counted … and in the end it wasn't all that close. The WINNER of The Worst Employer of 2022 is
The Murder Enabler
What's the best holiday gift you've ever given or received? With the holidays quickly approaching, this is the question Norah and I tackled on this week's episode of The Norah and Dad Show.
Find us on Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, Stitcher, internet, and everywhere else you listen to podcasts. And while you're in your podcast player of choice, hit the subscribe button to ensure that you never miss a future episode.
Before I sign off for 2022, I'll be back next week with two gifts for you — the winner of The Worst Employer of 2022 (Wed.) and this year's telling of The Employment Law Night Before Christmas (Thurs.).
Here's what I read this past week that you should be reading, too.
If I've learned one thing from my 25+ years of practicing law it's that when a court describes your arguments as a "rambling and hyperbolic tirade," your goose is cooked.
This is the story of Meltzer v. The Trial Court of the Commonwealth, by John Bello, Administrator.
If you haven't yet cast your ballot for The Worst Employer of 2022, time is quickly running out. Polls close at the end of today.
In case you need a refresher on the seven finalists, here they are (in alphabetical order):
We're a team, we need to work together. Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.
That's what Tina Braunstein, a bartender working at The Plaza Hotel, claims one of her supervisors, Martin Mariano, told her during her 60-day review. When the hotel terminated her employment shortly thereafter and during her probationary period, she pointed to Mariano's spelling of "b-i-t-c-h" as evidence of his sexually discriminatory motive.
We are no longer taking ANY EXCUSE for calling off. If you're sick, you need to come prove it to us. If your dog died, you need to bring him in and prove it to us. If it's a "family emergency," too bad. Go work somewhere else.
That was part of a written message an Olive Garden manager in Kansas recently delivered to his staff. The message that Olive Garden corporate delivered to that manager — "You're fired."
"I'm an investigator with the Wage and Hour Division of the Department of Labor. I'm here to conduct an investigation into how your pay your employees." He then shows you his badge, and asks to see the following:
Records showing the business's annual dollar volume of transactions in in interstate commerce to establish that the DOL has jurisdiction; and
Payroll and time records for the past three years.
With that, you're off the races in a DOL wage and hour investigation. The investigator will seek to determine if you've properly classified your employees as exempt or non-exempt, and if you've met your minimum wage and overtime obligations.
What do you do now?
Take a look at the following headlines, each taken from a Department of Labor news release from just the past month.
In 2017, a series of personal adversities, including probation for an incident with a gun and an ex-girlfriend, cocaine use, and a DUI arrest, ultimately culminated in a stroke for Mark Snyder, a financial director for U.S. Bank. When he returned in 2018 for his FMLA leave following his stroke, he suffered from residual physical and behavioral conditions, such as depression, agitation, and anxiety. Employees began to complain to management about his combative and confrontational behavior. After an investigation, the Bank told Snyder that further issues could result in other disciplinary actions, including termination of employment.
On June 4, 2018, Snyder had yet another confrontation with his supervisor, Johnnie Carrol, and his assistant Marcia Kleinhenz. As a result, Carroll emailed HR, explaining that Snyder's behavior "is consistent with his issues of attempting to intimidate people" and "I no longer think [Snyder's] situation is redeemable and feel I need to act." Carroll made the decision to terminate Snyder's employment that evening.
That same night, Snyder suffered a nervous breakdown and was hospitalized. The following day, he requested FMLA leave, which the Bank granted. A couple weeks later, however, Carroll and HR contacted Snyder to inform him that Bank was terminating his employment effective at the end of his FMLA leave.
The coolest part was at the end, when the props designer led us into his office and showed us Captain America's shield, Thor's hammer, Doctor Strange's necklace, and Black Widow's batons. I asked if I could hold them and he said, "Absolutely." So I picked up—dare I say wielded—the shield and hammer, which together weighed about 80 pounds. For one shining moment, I could feel the envy of a billion Marvel fans.
These guys are the greatest guys in the world, but they had to be in hell because people complain so much about that makeup when they're in it. But they never once complained. They were singing and playing their instruments for eight hours, and they just kept going and going and going, cut after cut. So they were amazing. They're just the greatest guys, not to mention the greatest music. So I hope this turns a lot more people on to the Old 97's.
Packaging Corporation of America has agreed to pay the EEOC $385,000 to settle the racial harassment claims of two African American employees.
The allegations are egregious (per the EEOC's news release).
A French employee, fired for refusing to participate in after-work drinks and other "team building" activities, has won the legal right "not to be fun" at work.
The man, named in his lawsuit only as "Mr. T," was fired for "professional incompetence" — specifically his refusal to adhere to the company's "fun" values. According to the Court of Cassation (France's highest court), the company's "fun" values included regular obligatory social events that included "excessive alcoholism encouraged by colleagues who made very large quantities of alcohol available," plus "practices pushed by colleagues involving promiscuity, bullying, and incitement to various excesses."
As we head into the Thanksgiving holiday, I thought I'd take a moment to say a few thank-yous, as I have a lot for which to be thankful.
🙏 Thank you to all of my readers, followers, and commenters, here and on LinkedIn and Twitter (for as long as Twitter remains a thing). We might not always agree, but if we did it would be crazy boring.
🙏 Thank you to all of the bad employers, who continue to act before they think (or don't think at all) and provide me content for all of my posts.
🙏 Thank you to my law firm, which supports my online fancies. They hired me to run our labor and employment practice, and didn't bat an eye when I expressed an intent to spread my wings into craft beer law.
🙏 Thank you to all of the organizations that invited me to speak in 2022, and a special shoutout to Business Management Daily, which hosts my monthly column and for which I'll be speaking monthly next year. Also, if you want to toast a beer with me, look for me at the Ohio Craft Brewers Conference in Cleveland from 1/30 – 2/1, and at the national Craft Brewers Conference in Nashville from 5/7 – 5/10.
🙏 Thank you to my family, who continue to support my career.
🙏 Thank you to my daughter, Norah, who still wants to create a podcast with her dad. As for our podcast, our newest episode addresses all things Thanksgiving, or at least all things Thanksgiving that matter, including food, food, food, parades, football, family, and food. You can listen on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, Stitcher, our website, or anywhere else you get your podcasts.
Here's what I read this past week that you should be reading, too.
This is how it started.
This is how it's ended (for now).
News broke last week of Elon Musk's lawyer reassuring Twitter's remaining employees that they should not worry about potential criminal liability for FTC violations the company may have committed in failing to abide by a 2021 consent order with the agency.
In and of itself, that sentence may seem innocuous enough … until you stop, think, and break down the parties involved. The CEO's lawyer was talking to Twitter's employees … who are not his clients.
This statute was aimed to prohibit the introduction of a device "into" the body. Wearing a mask on one's face isn't that.… Mr. Muckenfuss invites an interpretation that would render this statute absurd.… [H]is interpretation would suddenly prohibit all sorts of sensible mandates by employers. No longer could a company require a bleeding employee from wearing a bandage or band-aid "against" his wound. No longer could a company require an employee to wear a protective glove, or work boots, or goggles, or many types of personal protective equipment because they were likewise designed to be used "against" the body.
