- National Labor Relations Board and Consumer Financial Protection Bureau announce new partnership to address employer surveillance, monitoring, and data collection in the workplace
- Worker advocates call on OSHA to set standard on employee surveillance
- NLRB General Counsel may seek to invalidate non-compete clauses in employee severance agreements
Wednesday, April 12, 2023
Federal agencies need to stay in their lanes
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 11, 2023
Do you know what recruiters are telling candidates on your behalf?
“The company is looking for someone more junior to fill this position.”
That’s what John Larkin claims an Exact Sciences recruiting consultant told him after he was not selected for a professional medical sales representative position. It’s also why the EEOC is now suing Exact Sciences for age discrimination.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 10, 2023
7th Circuit decides the issue of religious rights vs. trans rights … and trans rights won
I really wanted to move on this week from writing about transgender rights. But then the 7th Circuit had to go and decide that a student's right to be called by his or her preferred gender trumps a teacher's religious accommodation request not to do so.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, April 7, 2023
WIRTW #667: the “gigs” edition
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Thursday, April 6, 2023
The craft beer industry has a sexual harassment problem
According to the EEOC, the industry that generates the most sexual harassment reports (at more than 14% of all such claims filed with the agency) is hospitality and food service, which includes craft breweries.
Indeed, according to a recent survey conducted by Women On Tap, 73% of women report experiencing sexual harassment while working in a pub/bar.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, April 5, 2023
Trans lives are human lives, and anti-LGBTQIA+ hate is wrong
"Dirty, f**got-loving motherf**ker." That's what someone yelled at me after I answered my office phone yesterday. I wish I knew who it was, but they chose to hide behind a blocked phone number.
For the past two days, I've posted about how employers can better support their transgender employees. Coincidence doesn't always equal causation, but in this case, I have to believe my posts and that awful phone call are linked.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, April 4, 2023
5 tips to help support our trans employees in the workplace
Transgender people are under attack. They often experience discrimination, harassment, and a lack of understanding, including from their work colleagues and bosses. As an employer, it is important to create a safe and inclusive environment for all employees, including those who identify as transgender or gender nonconforming.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, April 3, 2023
We are failing our trans employees
"You're not a real man."
"Do you have female parts?"
The agency further alleges that management and co-workers made numerous other anti-transgender comments, including intentionally misgendering Gambino by using female pronouns and equating being transgender with pedophilia.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 31, 2023
WIRTW #666: the “exchange” edition
Nine years ago my family and I embarked on an adventure. We hosted an exchange student from Germany for a school year. My own kids were in 2nd grade and kindergarten at the time and they loved having a big sister in the house. My wife and I loved everything about the experience, and we still think of Zarah as our third daughter, with whom we still communicate regularly. In fact, the experience was so positive that we promised ourselves that we'd never do it again for fear of being let down.
Well, we're doing it again. Each Spring our school (which enrolls between 30 and 40 exchange students per school year) emails parents looking for host families for the next school year. Something about one girl's bio caught the eye of both my wife and me. We independently reached the same conclusion — let's do this again. In August, we'll have a 9th grader (Donovan), a 12th grader (Norah), and a 10th grader (our exchange student). The kids are excited to have a new sibling with whom to share their high school experiences, and my wife and I are excited to have yet another German daughter. Life is all about experiences, so why not jump in with both feet?
You can hear all about our perspective on being a host family on this week's episode of The Norah and Dad Show. It's available on Apple Podcasts, Spotify, our website, and everywhere else you get your podcasts.
Here's what I read this week that you should read, too.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 30, 2023
Think twice before implenting that “English only” rule in your workplace
White Americans, what?
Nothing better to do?
Why don't you kick yourself out?
You’re an immigrant too!
– Jack White, Icky Thump (2007)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 29, 2023
Wal-Mart (allegedly) did a 💩 job of accommodating this employee
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Tuesday, March 28, 2023
A tip on tipped workers: pay them correctly or else
The Department of Labor has sued the owner of two restaurants claiming that servers were not properly paid overtime.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 27, 2023
What does an AI-written employee handbook look like?
Last week, I spoke at our sold out Wickens Workshop. The topic — employee handbooks.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 23, 2023
NLRB General Counsel goes nuclear on severance agreements in her guidance on McLaren Macomb
NLRB General Counsel Jennifer Abruzzo just released her Guidance in Response to Inquiries about the McLaren Macomb Decision.
Recall that McLaren Macomb held that garden-variety non-disparagement and confidentiality clauses in workplace severance agreements violate the National Labor Relations Act by unlawfully infringing upon the rights of employees to engage in protected concerted activity.
Just how far does Ms. Abruzzo push the limits of McLaren Macomb in her interpretation?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 22, 2023
The 4th nominee for the “Worst Employer of 2023” is … the pizza shop pressurizer
Allegations of forced labor and the physical abuse of employees will always land you on my Worst Employer list.
Last week the feds arrested Stavros Papantoniadis, a/k/a Steve Papantoniadis, the owner of Stash's Pizza, on charges of forced labor related to his employment of an undocumented worker and forcing him to work for more than decade through threats of deportation coupled with physical and verbal abuse.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 21, 2023
Federal court permits employer docking from an exempt employee’s PTO bank without violating the FLSA
I think it was Otis Redding who once famously sang, "I'm sittin' on the dock of the pay." 🤔
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 20, 2023
Sexual misconduct isn’t a “mistake”
Vince McMahon is the former CEO and current Executive Chairman of the WWE. It's former CEO because he was forced to step down after it came to light that he had allegedly authorized $19.6 million in hush money payments to female employees who had accused him of sexual misconduct. (It's what earned McMahon his nomination for 2022's Worst Employer.) It's current Executive Chairman because he returned to that position earlier this year after previous stepping down for the same reason.
John Cena is a full-time actor and former WWE star who recently returned to the company.
Consider the following recent Q&A between Cena and the Associated Press:
AP: Is it tough to reconcile the feelings you have toward Vince McMahon with the sexual misconduct accusations made against him?
CENA: No. I mean, everyone has the right to have their perspective. I have the right to have mine. When you love somebody, you take them as imperfectly perfect as they are. We all make mistakes, we all have poor decisions. Lord knows I've made my collection of poor choices. That doesn't mean I’m not going to love somebody. There's no way I can go on record and say I don't love Vince McMahon.
Sexual misconduct is not a mistake.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 17, 2023
WIRTW #665: the “grim reaper” edition
Earlier this week, I joined the People Problem Podcast to discuss death at work. Grim as it might be, it's an issue that we all face way too often. We talked about appropriate bereavement leaves, how to handle when an employee dies at work, and what best to when a team member dies away from work. It's a can't miss episode (gallows humor included).
You can listen to the episode here and everywhere else you get your podcasts. (And don't forget to subscribe while you're there.)
Here's what I read this past week that you should read, too.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 16, 2023
6th Circuit confirms that private employers can do private employer things
Four employees of the J.M. Smucker Company sought religious exemptions from the company's Covid vaccine mandate. When the company refused, they sued, claiming that the mandate infringed on their First Amendment religious liberties.
The 6th Circuit easily concluded that the 1st Amendment does not apply to J.M. Smucker or limits its power to regulate its workplace as it is a private company, not a federal, state, or local government.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 15, 2023
EEOC lawsuit highlights risks associated with not accommodating service animals
The EEOC has filed a disability discrimination lawsuit against Papa John's Pizza claiming that it denied the request of Michael Barnes, who is blind, to bring his service dog — Indie, a black lab — with him to work. After denying his request, the agency alleges, the pizza company fired Barnes.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, March 13, 2023
What can you do about employee mass protests? (Hint: not much.)
The 25 employees of Mela Kitchen at Jack’s Hard Cider recently walked off the job in protest after owner Donald Hoffman created a new drink menu of cocktails with racially inspired named such as "The Caucasian" and "The Negro."
Despite days of efforts from upper management trying to halt this cocktail and it's name, Friday comes and it's time to reveal this weekends special. I made a formal complaint to upper management and notified them that if the name isn't changed most of the scheduled staff will be walking. An email was sent to Donald informing him of our plan and his reaction was explosive.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 10, 2023
WIRTW #664: the “CE” edition
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Thursday, March 9, 2023
Relaxing child labor protections is not the solution to our labor problem
Ohio's Senate recently passed legislation that, if signed into law, would make it easier for businesses to employ 14- and 15-year-old children. SB 30 would amend Ohio's current child labor laws to permit 14- and 15-year-olds to work later than 7 pm during the school term with "approval to do so from the person's parent or legal guardian."
According to State Sen. Tim Shaffer, a Fairfield County Republican, he sponsored the bill to help solve Covid-related workforce shortages, in addition to teaching teens necessary work skills: "Learning how to show up on time, learning how to follow direction and execute commands and execute missions — I know at that age it was critically important for me. And this will certainly help employers across Ohio with their staffing problems as well."For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 8, 2023
Someone needs to take away Elon Musk’s twitter access
The reality is that this guy (who is independently wealthy) did no actual work, claimed as his excuse that he had a disability that prevented him from typing, yet was simultaneously tweeting up a storm.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, March 7, 2023
The 3rd nominee for the “Worst Employer of 2023” is … the awful accommodator
You'd think a nonprofit that provides programs for people with disabilities to build self-reliance through employment services would know a thing or two about the ADA's requirements for reasonable accommodations.
Then there's Innovative Services NW, which the EEOC just sued for it's failure to accommodate a janitor suffering from a degenerative hip disorder. He had asked for a stand-up vacuum to push instead of a backpack vacuum to wear. Not only did ISNW not accommodate him, but it also fired him for his inability to wear that backpack vacuum.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, March 3, 2023
WIRTW #663: the “growth” edition
Growth comes in many forms. For my son, it came in the form of a daily injection of growth hormones since the age of seven.
Because of his Noonan Syndrome, he's genetically predisposed to being short statured. That fact that I'm 5' 7" and his mom 4' 11" also didn't help his cause. Donovan was barely on the growth chart, and his doctors projected his full adult height at a mere 5' or 5' 1". Shortly after his 7th birthday he took his first dose of growth hormones, a daily injection. It was his decision after he was deemed not tall enough for a new bike he wanted. His endocrinologist at the time thought my wife and I were out of our minds for letting Donovan decide if and when to start treatment. To us, however, if he's the one taking the needle, he should have some say in the if and the when.
Earlier this week Donovan took his final dose, a decision made by his current endocrinologist that he's received all of the possible medical benefit from the more than 2,700 injections he took over nearly eight years.
He's now close to 5' 7", with another inch or two still to grow. That's what I call growth.
Here's what I read this week that you should read, too.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, March 2, 2023
Class action lawsuit highlights the risk of AI in hiring and other employment decisions
Yesterday, news broke of a class action lawsuit filed against HRIS provider Workday claiming that its artificial intelligence systems and screening tools disproportionately and discriminatorily disqualify Black, older, and disabled job applicants.
The named plaintiff, Derek Mobley, is a Black man over the age of 40 who suffers from anxiety and depression. He alleges that he applied for 80-100 positions since 2018 that use Workday as a screening tool and has been denied every time despite his qualifications.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, March 1, 2023
Tweets, honest beliefs, and terminations
@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!
On July 24, 2016, Kathleen Jungclaus — the 55-year-old then-VP of HR for Waverly Heights Ltd. — tweeted the above. A couple of months later, someone anonymously notified Jungclaus's superiors of the tweet. When confronted, Jungclaus initially provided shifting explanations of the tweet's origins but ultimately admitted posting it. As a result, Waverly fired her for violating its social media policy (which she had drafted). After Waverly replaced her with someone 12 years her junior, Jungclaus sued for sex discrimination, age discrimination, retaliation, and hostile work environment.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 28, 2023
Do your business’s philosophy, values, and vision match your mission statement
On this week's episode of The Start A Brewery Podcast, I join hosts Laura Lodge and Candace Moon, along with guests Ren Navarro (the owner/operator of Beer. Diversity., and my co-presenter at the upcoming Craft Brewers Conference) and Jason Gladfelter (of Vombuds, LLC) to discuss how a business's mission statement should align with and reflect its philosophy, values, and vision.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 27, 2023
The 2nd nominee for the “Worst Employer of 2023” is … the child labor abuser
According to the Department of Labor, Packers Sanitation Services, the country's largest food safety sanitation services, employed at least 102 children — ranging in age from 13 to 17 — in hazardous occupations in meat processing facilities across eight states.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 24, 2023
WIRTW #662: the “platform” edition
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 23, 2023
NLRB bans non-disparagement and confidentiality covenants in severance agreements. What now?
Is it time to rip up your stock severance agreement? Consider the following two clauses, which I bet your standard agreement contains in some form.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 22, 2023
Do you know what to do if employees strike?
Labor strikes by employees were up a shocking 52 percent in 2022 as compared to 2021. That's according to Cornell-ILR Labor Action Tracker Annual Report. Employee collective work stoppages are on the rise, and there is no indication of them abating any time soon.
Do you know what to do if your employees walk off the job? Here are 10 dos and don'ts.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 21, 2023
The 1st nominee for the “Worst Employer of 2023” is … the foul-mouthed retaliator
"I'm going to fire all the motherf---ers!"
That's the threat Department of Labor accused Tamesha Porter, the sole owner and operator of Safe Haven Assisted Living of Haslett, of making to her employees after the Department of Labor started investigating its wage and hour practices.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 17, 2023
WIRTW #661: the “crafty” edition
Earlier this week I had the pleasure of presenting, Crafting Your Craft Brewery's Employee Handbook, a webinar jointly sponsored by Craft Beer Professionals and Start A Brewery. (Thank you, Andrew Coplon and Laura Lodge, for asking me to present 🍻)
In 60 minutes, I discussed why every business needs an employee handbook and ran through every policy a craft brewery needs in its handbook. While the presentation is craft brewery focused, any business of any size will find most of the information applicable. I guarantee you'll learn something.
You can watch the entire webinar here.
Here's what I read this past week that you should read, too.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 16, 2023
Do you know the rules for paying remote workers for “downtime”?
Every 10 minutes at some random point that she couldn't anticipate, the company took photos of her and her work, a screenshot of whatever she was working on, and a photo of her face. And they were doing that to verify whether or not she was working.… The company was using that to pay Carol and the other workers only for the minutes when they appeared active.
If she was clicking away at a spreadsheet, doing demonstrable work, she was fine. She would be paid for that 10-minute increment. But as soon as she got a cup of coffee or answered the doorbell or went to the bathroom, she risked not being paid for that time.…
[E]ven if she had worked for 9 and 1/2 minutes out of 10 minutes, if that screenshot showed her inactive, if she was gone or distracted for that 30 seconds, she wouldn't be paid for that increment.
The Department of Labor just issued a Field Assistance Bulletin reminding employers on the proper payment of remote workers under the Fair Labor Standards Act.
- The FLSA requires employers to pay nonexempt employees for all hours worked.
- "Hours worked" is not limited solely to time spent on active productive labor but also includes time spent waiting or on break.
- Short breaks of 20 minutes or less (e.g., to go to the bathroom, get a cup of coffee, let the dog outside, or stretch one's legs) are generally counted as compensable hours worked.
- Longer breaks "during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes are not hours worked."
- These rules apply regardless of whether the work is performed at the employer's worksite, at the employee's home, or at some other location away from the employer's worksite.
In other words, even if you catch your nonexempt employees "not working" during the workday, if a break lasts 20 minutes or less you still must pay them. It's non-negotiable under the FLSA. (Exempt employees are paid a salary which becomes owed in full as soon as he or she works just one minute in a work week.)
If you discover an employee abusing paid breaks or their salary status, your remedy is discipline or termination, not withholding wages.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 15, 2023
No privacy for drug-test pees
Someone on Reddit asks: Is it legal for my new employer to watch my pee for a drug test?
I can’t speak for every state, but in my state the answer is an unequivocal “yes.” It’s perfectly legal to require the direct observation of an employee peeing for a new hire or workplace drug test.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 14, 2023
Employee harassed after coming out at work loses harassment lawsuit
After an employee comes out at work as gay, he alleges that co-workers left him pink nail polish, a nail file, and bath bombs, that someone posted Bible verses on his desk, and that he was moved to an isolated corner of the office.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 10, 2023
WIRTW #660: the “Freckles” edition
Two weeks ago I shared the story of Freckles, the toad that my daughter rescued from our backyard. On our podcast — The Norah and Dad Show — we left you with a cliffhanger. Did Freckles live or die. On this week's episode we share Freckles' fate, along with the fate of Norah's high school mock trial team.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 9, 2023
Seminars and Webinars: Employee Handbooks
When was the last time you reviewed and updated your business's employee handbook?
The reality is that you need a customized and updated handbook that documents the guidelines and expectations between your organization and your employees. If you do not pay careful attention to your handbook's contents, you might violate the law, alienate employees, and invite costly and time consuming lawsuits.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 8, 2023
Post-termination diagnosis is insufficient to support ADA claim
Haley Hrdlicka, a 30-year General Motors employee, began having attendance problems after transferring to its Design Academy. Serious attendance problems. Dozens of absences in the four-month period from May – August 2019. A less-than-glowing performance review followed by an "Attendance Letter" (essentially a final written warning) did nothing to improve her attendance. So GM fired her.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 7, 2023
What does an employer have to do to lose $366 million?!
$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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 6, 2023
The problem isn’t “fake” managers, it’s the poorly named “administrative” exemption
"Would you rather be a front-desk clerk or 'Director of First Impressions'? A barber or a 'Grooming Manager'?" CBS News posed this question, and concluded that employers use these fancy, inflated titles to avoid paying employees in full for their overtime work.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 3, 2023
WIRTW #659: the “99 problems” edition
I got 99 problems, but being a podcast guest ain't one.
This week's episode is all about dating at work. The conversation goes all over the place, including to a mafia bar in Chicago. You'll have to listen to the episode to hear all about the craziest experience of my legal career.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 1, 2023
“Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim
The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year old child at the start of the Covid-19 pandemic.
In mid-March 2020, Polina Milman, an attorney working at Fieger & Fieger PC, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son who was exhibiting Covid symptoms and was already vulnerable because of a previous bout of RSV. The firm initially granted her WFH request. On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 31, 2023
Union avoidance vs. union busting
"A company that opposes a union organizing and presents both sides of this complex issue is 'union busting.'" This is what one commenter wrote in response to my recent post about union organizing at Creature Comforts Brewing Co.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 30, 2023
Lessons from coaching high school mock trial
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.
For the past four months I’ve been volunteering as one of the legal advisors for the Lake Ridge Academy Mock Trial team. That’s what I told my team the evening before their opening round of competition last Friday.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 27, 2023
WIRTW #658: the “Toad Jesus” edition
On the latest edition of The Norah and Dad Show, we discuss Freckles, Norah's newly rescued-from-the-backyard pet toad, who may be sleeping or may be dead. Welcome to the first cliffhanger in the history of our podcast. Find us on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, your old-fashioned browser, and everywhere else podcasts are available.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 26, 2023
Update on Creature Comfort Brewing’s union organizing
Last week I reported that the employees of Creature Comforts Brewing Co. formed their own independent labor union, the Brewing Union of Georgia (aka BUG) and announced their intent to unionize their workplace.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 25, 2023
Offensive social media posts doom airline employee’s discrimination claim
"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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 23, 2023
The BIG risk of misclassifying employees as independent contractors
A national auto parts distributor has reached a settlement with the Department of Labor to pay a total of $5.6 million in back pay and liquidated damages (plus interest) to 1,398 drivers misclassified as independent contractors. The payments to the individual drivers are as low as $40 and as high as more than $120,000.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 20, 2023
WIRTW #657: the “Let me buy you a beer” edition
From Jan. 30 – Feb. 1, the Ohio Craft Brewers Conference is taking place in Cleveland. My firm and I are playing a prominent role.
- On Jan. 30 we are sponsoring the opening reception at Forest City Brewery, from 5:30 - 7 pm. If you've never been, it's an amazing space, a restored 19th century brewery building. It has the oldest (and, imho, most beautiful) beer garden in Ohio, and one of the oldest in the nation … although it might be a tad cold to fully enjoy it. Forest City also produces some of the best beer in NE Ohio — I recommend the Opening Day IPA and the Hootenanny (a kölsch). Finally, Apostle Jones, a local rock and soul band, is providing the musical entertainment. They are not to be missed. Look for me at the Wickens Herzer Panza table (where we'll have some nice giveaways) or milling about the brewery. Stop and say hi and I'll be sure to buy you a beer. This is an open event and you do not have to be registered for the conference to attend.
- On Feb. 1, at 11 am, I am speaking in the Fundamentals Room on Crafting Your Craft Brewery’s Employee Handbook.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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