Most lawsuits settle. Here’s why.

$787.5 million. That's how much Fox News agreed to pay Dominion Voting Systems to settle its claims of defamation related to bogus claims of fraud in the 2020 presidential election.

Some people aren't happy that this case settled. For one reason or another they wanted these parties to have their weeks in court. But you know what? The only opinions that matter are those of Fox and Dominion.

When you litigate, you lose. This is an odd statement for a litigator to make. But it's true. When you litigate, the only people that "win" are the lawyers. It's for this reason that I believe that every claim or potential claim should settle. The two key considerations are when and for how much.

Here are three factors that litigants often consider in deciding the "when" and the "how much".

Your business should have an employee conflict of interest policy

Supreme Court Justice Clarence Thomas is under fire after the public disclosure of decades of valuable gifts he's received from right-wing donor Harlan Crow, including lavish vacations and even real estate. 

Politics aside, this story underscores the importance of having a clear and unambiguous conflict of interest policy within your organization and enforcing it when it's violated.

WIRTW #668: the “obrigado” edition

Three years ago — March of 2020 to be precise — my family and I were supposed to spend our kids' spring break in Portugal. Then a little thing called Covid happened, we canceled our trip out of an abundance of caution, and the world went to hell for a long, long time. 

Three years later we are finally set to take our Portuguese holiday. We'll spend 12 glorious and much needed June days in continental Europe's westernmost nation, split across Porto (4 days), Peniche (3 days), and Lisbon (5 days). The Airbnb's are booked, the rental car is reserved, and I've marked my tour books with all of the must-see sites both in and around our three home bases and during our journeys in between. 

Here's my question for anyone who's been to Portugal — what are your best tips? 

• Off-the-beaten-path sites? 
• Restaurant and bar recommendation? 
• Tours, wine and otherwise?
• Anything else?

Thanks in advance for playing tour guide for me. I'll reward you with pictures and stories upon my return.

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

Do you know how to spot an employee at risk for mass violence?

Before Connor Sturgeon left his home with gun to travel to his place of employment, Old National Bank, to open fire in an assault that that killed five and injured eight others, he wrote a note to loved ones. He had also apparently told others that he was suicidal. This was just the most recent in a string of never-ending workplace tragedies.

Prior to Monday, were there any signals to anyone at Old National Bank that Sturgeon was about to be a major problem, that he could kill those with whom he worked in spectacular and tragic fashion?

Sturgeon was a banker with no criminal history. Still, even without a history of criminal violence in one's background (which isn't necessarily a predictor of future violence) there are certain warning signs for which an employer can look to help determine whether an employee is at risk for potential violence.

Federal agencies need to stay in their lanes

• 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

These are just a few of headlines I've recently read in which one federal agency or another is signaling an intent to regulate outside of its core mission. Federal agencies should stay in their lanes, period. OSHA regulates workplace safety. The NLRB regulates the relationship between unions and management, and in non-union settings the rights of employees to engage in protected concerted activity.

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.

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.

The case is Kluge v. Brownsburg Community School Corp. John Kluge worked as a music teacher at the Brownsburg Community School Corp. In 2017, the school adopted a new policy that required teachers to use students' chosen names and pronouns. Kluge refused to abide, asserting that it violated his Christian beliefs. The school initially granted an accommodation that permitted Kluge to refer to all students by their last names. It withdrew the accommodation, however, after both trans and cisgender students became angered after deciphering Kluge's surname use. Kluge resigned and sued for religious discrimination and retaliation under Title VII.

WIRTW #667: the “gigs” edition

It's been a while since I've shared info about my daughter's music. Since she has a bunch of gigs coming up — starting tomorrow night at Front St Social in Berea — I figured today is a good time to fix that deficit. 

For those new to norah marie, check her out at norahmariemusic.com. She plays a mix of indie acoustic originals along with classic rock and alternative covers spanning the 60s through today.

All shows are free with no cover. But the bars love it when you buy drinks and food, and she always loves tips. You'll find all the details at norahmariemusic.com/gigs.

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

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. 

Simply stated, the craft beer industry has a sexual harassment problem.

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.

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.

Here are five steps you can take in your business to support transgender and gender nonconforming employees at work:

We are failing our trans employees

"You're not a real man."
"Do you have female parts?"

Those are just two of the allegations the EEOC has raised in a lawsuit it just filed on behalf of Quinn Gambino, a transgender male, against his former employer, T.C. Wheelers Bar & Pizzeria.

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. 

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.

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)

Total Employment and Management has agreed to pay $276,000 to settle a national origin discrimination and retaliation charge filed with the EEOC challenging the employer's "no Spanish" rule in its workplace.

The EEOC alleged that TEAM not only imposed its no-Spanish rule without an adequate business justification to support it, but it also fired five employees for defying the rule and continuing to speak Spanish.

Wal-Mart (allegedly) did a 💩 job of accommodating this employee

Why can't some employers understand the interactive process and make accommodations that are simple and easy to make? I wish I knew the answer. After reading the facts of a lawsuit the EEOC just filed against Walmart, I know that Wal-Mart doesn't know the answer.

The EEOC claims that Walmart violated the ADA by refusing to provide a reasonable accommodation to a deli associate suffering from Crohn's disease.

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. 

El Toro Loco Legends LLC in Kansas City and El Toro Loco Lenexa LLC in Lenexa, Kansas, paid their tipped wait staff a minimum wage of $2.30 per hour, but did not properly calculate the overtime premium owed to those employees.

They calculated the overtime premium based off of the $2.30 tipped minimum wage instead of the greater of the full minimum wage of $7.25 per hour or the employee's effective weekly hourly rate including all tips received by the employee, less the employer's statutory tip credit against wages paid directly to the employee.

What does an AI-written employee handbook look like?

Last week, I spoke at our sold out Wickens Workshop. The topic — employee handbooks.

As is the case whenever I speak on that topic, I was sure to make a point about the risks and dangers of relying on internet forms to craft your company's handbook … or as I put it, "Google, J.D."

Which led me to this thought — what happens when people start asking AI bots to write their handbooks?

So, I asked Bard, Google's new AI, to write me an employee handbook. Here's the very underwhelming result.

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?

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. 

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." 🤔

Whether or not I have that lyric correct, docking an exempt employee's pay is fraught with legal risk that, if done unproperly, could not only jeopardize the exempt status of the employee under the FLSA, but also all employees in the same job classification working for the same managers responsible for the actual deduction.

What about deductions from PTO or other paid leave banks? Do they carry with them the same legal risk. According to the recent opinion of the 3rd Circuit Court of Appeals in Higgins v. Bayada Home Health Care, taking deductions from banks of PTO or other paid leave raises no issues whatsoever the FLSA and therefore does not jeopardize any of the statute's exemptions.

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. 

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.

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.

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. 

This seems like an easy accommodation request to get right, and yet so many employers get it wrong. Here's a handy Q&A for your next service animal accommodation request in your workplace.

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."

MSN quotes one employee, Emily Kate Hessler, on why she and her co-workers decided to engage in the mass protest.

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.

WIRTW #664: the “CE” edition

Are you an HR professional in need of SHRM recertification credits? Will you be attending the Craft Brewers Conference in May? If you answered "yes" to both, then you're in luck. The Brewers Association just announced its Recertification Provider status with SHRM and will begin offering programs that qualify for SHRM recertification credits. CBC is the first of these programs.

SHRM will provide professional development credits for all seminars that take place as part of the THRIVE pre-conference workshop on Sunday, May 7 (which includes mine on ADA compliance, accommodations, and accessibility), in addition to select seminars in the main conference's THRIVE educational track. THRIVE is a day-long pre-conference workshop designed for owners, people leaders, HR, and diversity, equity, and inclusion practitioners that will provide an integrated dive into DEI, HR, and wellness topics for craft brewers of all sizes.

If you're planning on attending CBC let me know. I'll have more to share as we get closer to the event about when and where we can meet up. I'd love to buy you a beer.

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

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."

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.

That was Elon Musk's very public, and very offensive, tweet to a former Twitter employee who had asked whether the company still employed him, as his network access had been inactive for nine days and no one from HR could confirm his employment status.

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.

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.

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. 

Mobley claims that Workday's artificial intelligence unlawfully favors applicants outside of protected classes through its reliance on algorithms and inputs created by humans conscious and unconscious biases. 

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.

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. 

We discuss the important questions of "Who are you?" and "What do you collectively as a team and a business represent?" While we answer these questions in the context of starting a brewery, the issues we discuss and the lessons we teach are applicable to any business of any size, startup or established, small or big.

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.

The hazardous conditions to which Packer required the children to be exposed included working with hazardous chemicals and cleaning meat processing equipment including back saws, brisket saws and head splitters. At least three of the children suffered injuries while illegally working for Packer.

WIRTW #662: the “platform” edition

Platform Beer Co. shook up the local beer industry Wednesday afternoon when its owner, Anheuser-Busch, confirmed that it had permanently closed the Cleveland brewery (along with its taproom and other related businesses) that it had acquired less than four years ago. All of its employees have lost their jobs as a result. 

Some backstory. Platform was a Cleveland craft beer success story. It opened its doors in 2014, and within five years had grown large enough to attract A-B as a buyer. Now, it no longer exists (except for the three IPAs that A-B says it will keep making).

While I have no inside knowledge as to what happened at Platform, I can offer an educated guess. Craft beer consumers are passionate about drinking craft beer. One of the key components to any craft brewery is its independence. Once A-B acquired Platform, it ceased being independent; it instead became part of A-B's $54 billion corporate behemoth. As a result, and no matter the quality of its beers, Platform lost its allure to the craft beer consumer. Without that attraction, sales dipped, making it ripe for the its tragic fate.

What's unfortunate is that a lot of good people lost their jobs as a result. Thankfully, our local beer community is collegial and collaborative. For example, Saucy Brew Works is offering any former Platform employee a daily free meal and pint, along with a job application, through the end of March. That's how you pay it forward. If you're a brewery looking to hire, there are lot of people in N.E. Ohio looking for work.

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

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.

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.

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.

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.

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.

That's from The New York Times, describing the latest employer trend of monitoring remote workers and only paying them for the time during which the performance of actual work could be verified. And, if those remote workers happen to be nonexempt, that practice is highly illegal.

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.

Specifically:

• 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.

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.

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. 

Based on these facts, the 6th Circuit Court of Appeals affirmed the dismissal of the employee's sexual harassment claim.

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.

You'll find The Norah and Dad Show on Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, in your web browser, and everywhere else podcasts are available.

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

Seminars and Webinars: Employee Handbooks

When was the last time you reviewed and updated your business's employee handbook? 

If your answer is, "I don’t know," "Longer than a year ago," or "What's an employee handbook and why do we need one?" then we need to talk.

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.

Lucky for you, you have two upcoming opportunities to hear me speak on this important topic.

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. 

She unsuccessfully appealed her termination through GM's internal grievance process. During that process Hrdlicka was diagnosed with Persistent Depressive Disorder and a brain tumor. She then sued GM for disability discrimination stemming from the after-the-fact diagnosis.

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.

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. 

"Title inflation," the article argues, is being used to deny overtime and steal wages from otherwise deserving employees.

WIRTW #659: the “99 problems” edition

I got 99 problems, but being a podcast guest ain't one.

I love the People Problems Podcast so much. And they must love me, too, since this is my third appearance as a guest.

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.

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

“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."

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.

I could not disagree more. 

There is vast, substantive, and significant difference between union avoidance and union busting.

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.