Yes, you can still fire employees for lying, even when they are seeking FMLA leave

67 employees of CSX Transportation submitted a required internal form requesting medical leave. Those requests had four key problems: 1.) each was submitted shortly after CSXT informed the employees that they would be furloughed; 2.) each was submitted by one of two chiropractors; 3.) each contained the same or substantially similar language referencing general minor musculoskeletal conditions such as sprains or muscle spasms with no individualized assessments and requiring at least eight weeks of leave; and 4.) they were all submitted within a very tight time period.

As a result, CSXT's Chief Medical Officer, Dr. Heligman, became suspicious of fraud. Following an internal investigation, which included an evidentiary hearing at which each employee could appear and testify, represented by their labor union, the company fired all 67 employees for violating its Code of Ethics and its policy against workplace dishonesty.

WIRTW #676: the “Portugal. The Vaction” edition

I've never wanted to be "that guy" who returns from vacation and says, "Let me show you my vacation photos." 

Well … Let me show you my vacation photos.

Portugal is simply magical. The people. The sights and scenery. The lifestyle. The food. The wine. All of it. This vacation had every opportunity to let me down. Covid had delayed it for more than three years. I built it up in my head as the vacation of all vacations. Not only did Portugal live up to my expectations. It exceeded it. 

So do yourself a favor and place Portugal on your short list of places to visit. And when you decide to go, let me know. I might just have a rental property to show you. (If anyone has a lead on a reasonably priced three bedroom home on Portugal's Silver Coast (the Atlantic coast between Lisbon and Porto), I'm all ears.)

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

How much does it cost a company never to hire any women?

USF Holland is recognized as one of the top 100 trucking companies in the country. It has also never hired a women in the 37-year history of its Olive Branch, Mississippi, terminal. 

According to the EEOC, since the terminal's opening in 1986, Holland failed to hire any female drivers (except for one it hired and fired before she completed her first route). The EEOC also uncovered that a significant number of qualified women with extensive truck driving experience applied for positions with Holland over the years, yet none were hired even when the women's qualifications were equal or superior to those of male applicants.

So what does this egregious violation of the law cost this Title VII scofflaw? Millions? Tens of millions? 

We need to talk about “wokeness”

"When I grow up, I want to be hired based on what I look like rather than my skills.… I want to get promoted based on my chromosomes.… I want to be offended by my coworkers and walk around of the office on eggshells."

Those are just a few of the quotes from some child actors in a viral YouTube ad for a company called RedBalloon.

RedBalloon is a job board to match anti-woke employees with like-minded employers.

Is your business prepared for the Pregnant Workers Fairness Act?

Consider the following scenarios:

• A pregnant employee has already used her annual allotment of FMLA leave and has no FMLA leave available to use for any reason.
• A pregnant employee has worked for you less than one year and therefore does not qualify for FMLA leave.
• You have fewer than 50 employees and therefore none of your employees, including your pregnant employees, qualify for FMLA leave.

Now consider a pregnant employee in any of these three situations who needs a leave of absence for the employee's limitations related to pregnancy, childbirth, or related medical conditions. What are your legal obligations?

The 7th nominee for the “Worst Employer of 2023” is … the pretend priest

"Forgive me Father, for I have sinned. Twice I asked a co-worker to punch my time card to cover my tardiness; once I called off sick when I was really playing golf; and I spoke to a Department of Labor investigator about my belief that I haven't be paid correctly."

Pursuant to a consent judgment with the Department of Labor, Che Garibaldi Inc., the operator of Taqueria Garibaldi, has agreed to pay $140,000 in back wages and damages to 35 employees based on claims that the employer used a fake priest to coerce confessions from employees and then used that information to retaliate against them.

WIRTW #675: the “all I ever wanted” edition

Vacation, all I ever wanted

Vacation, had to get away

The Go-Go's had a point. 

Tomorrow, I leave for my own vacation, one that I've waited three long years to take. We depart for two weeks in Portugal. I'll be back to regular posting on June 19, with photos to share and lessons learned during my travels.

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

10 ways to support your LGBTQ employees #pride

Today is the first day of Pride Month. June might be Pride Month, but your business should commit to and support its LGBTQ employees 24/7/365. Here are 10 ideas that incorporate this inclusion and demonstrate your support of your LGBTQ workers.

NLRB General Counsel Jennifer Abruzzo just obliterated non-compete agreements (maybe)

In my view, the proffer, maintenance, and enforcement of a non-compete provision that reasonably tends to chill employees from engaging in Section 7 activity … violate Section 8(a)(1) unless the provision is narrowly tailored to special circumstances justifying the infringement on employee rights.

With that sentence from NLRB General Counsel Jennifer Abruzzo's just-published memo — entitled, Non-Compete Agreements that Violate the National Labor Relations Act — Ms. Abruzzo sent employment lawyers (including this employment lawyer) scrambling to understand exactly what she said and what she means.

Here are 11.25 million reasons to settle a lawsuit

Before I will bless a client's decision to terminate an employee, I always ask this question: "Tell me about the demographics — race, sex, age, known disability, etc. Did they complain about something at work and when? If I go through your personnel records, will I find someone outside of the to-be-terminated employee's protected class whom you've treated better?"

Here's why I ask that question.

WIRTW #674: the “dogs” edition

Meet Loula and Dante, our dogs. 

They have a lot in common. They're both vizslas. They are both from the same breeder (whom I cannot more highly recommend for the care he puts into his own dogs, his puppies, and his puppies' owners). And they share the exact same birthday, May 8, albeit 7 years apart (Loula just turned 11, Dante 4).

One more thing they have in common — they are in the running for Cleveland's Cutest Pet. 

Here's my ask for all of you, my loyal, devoted, and appreciative readers. Click this link and vote for Loula and Dante. They would really love it. (I would, too.)

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

Pro tip: don’t monkey with an employee’s “regular” hourly rate to avoid overtime obligations

Let's say you have an employee who works 40 hours per week at the rate of $13.00 per hour. Now let's say that same employee needs to start working 20 hours of overtime per week to meet your needs. You still, however, want that employee to earn to same effective rate of $13.00 per week, so you reduce the employee's straight-time hourly rate of $11.15. When the need to work overtime ends, you then return the employee to the original $13.00 rate. Is the reduction of the employee's base hourly rate legal under the Fair Labor Standards Act? 

According to the 11th Circuit in Thompson v. Regions Security Services, the answer is "not unless you want a jury to decide the legality of your pay practices under the FLSA."

Uber suspends DEI exec over “Don’t Call Me Karen” events

Uber has suspended its longtime head of diversity, equity, and inclusion, Bo Young Lee, after Black and Hispanic employees complained that an event she ran — titled "Don't Call Me Karen" — was insensitive to people of color.

"Karen," in case you've lived an a cave without WiFi for the past half-decade, is slang for an entitled white woman who often complains to a management and the authorities about Black people and other minorities.

6th Circuit adopts one-step verification for FLSA collective actions

We hold that, for a district court to facilitate notice of an FLSA suit to other employees, the plaintiffs must show a "strong likelihood" that those employees are similarly situated to the plaintiffs themselves. That standard requires a showing greater than the one necessary to create a genuine issue of fact, but less than the one necessary to show a preponderance. The strong-likelihood standard is familiar to the district courts; it would confine the issuance of court-approved notice, to the extent practicable, to employees who are in fact similarly situated; and it would strike the same balance that courts have long struck in analogous circumstances.

With those words, the 6th Circuit ended decades of uncertainty in Fair Labor Standards Act wage and hour collective action lawsuits in my Circuit on the issue of when in such a lawsuit a district court should determine which employees properly belong in the the class. 

WIRTW #673: the “syck” edition

It's always great to connect with old friends. It's even better when your old friend works in a similar field as you. And it's even better when that same old friend hosts his own podcast and invites you on as guest. 

Such was the case with my old college friend, Alan Stein, who is a career coach for executive-level employees. This week I'm Al's guest on his SYCK Career Podcast. We discuss a multitude of employment law issues, including, in great detail, employment contracts and performance improvement plans. You can listen on Apple Podcasts, on Spotify, in your browser, and everywhere else you get your podcasts.

Cheers, Al. It was great to reconnect with you.

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

A few wage and hour thoughts for beer festival season

As the weather warms up around the country and spring quickly transitions to summer, festival season will begin … including my personal favorite, the beer festival.

Beer festivals, however, raise a few specific wage and hour traps for participating breweries. Here's the 411.

Can an employer require that employees be of a specific faith? Believe it or not, it depends.

"Mature orthodox Christian faith as defined by the Apostles' Creed."

That is one of the qualifications listed in a job posting for a filmmaker position. The employer — the International Justice Mission — is a 501(c)(3) non-profit organization, the mission of which is to combat human trafficking and slavery, violence against women and children, and police abuse of power worldwide.

Can IJM make a certain religious faith a job qualification or otherwise ask about religion as part of the hiring process?

It depends on whether "religion" is a bona fide occupational qualification (BFOQ) for that employer.

EEOC issues its final updates to its Covid-19 guidance

With the Covid-19 National and Public Health Emergencies now concluded, the EEOC just published what should be its final updates to its COVID-19 technical assistance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

These updates address employers' ongoing obligations to employees related to Covid-19 in the workplace.

What are the risks with the use of AI at work?

AI is shiny. AI is new. AI is sexy. And AI is problematic and not entirely understood. It is for those last reasons that, according to HR Brew, corporate America is either restricting employees' use of generative AI tools such as ChatGPT or banning them outright.

I don't have the answer for which of allowing, limiting, or banning generative AI is the correct answer for your business. You should, however, consider these three risks in evaluating whether, when, and how your employees use generative AI at work.

WIRTW #672: the “it’s over, Johnny” edition

I spent five days this week with 12,000 other people at the Craft Brewers Conference. You read that number correctly, 12,000. It's something I never could have imagined doing this time last year, or even a few short months ago.

This week not-so-coincidentally also marked the official end of the Covid-19 national and public health emergencies. This end doesn't mean Covid isn't a thing anymore. It still exists and it still can still make you sick. It just means that it's now endemic instead of a pandemic. 

What's now going to change as a result? Frankly, not much. It's been months since most of us have moved on from Covid. We've stopped masking. We've stopped social distancing. Heck, as much as many of lauded "work from home" and "remote meetings" as the future of work, many of us have returned to our workplaces and to in-person meetings. 

As cautious as I was personally during the pandemic, I'm happy to be back to "normal." Humans are social creatures, and our brains need social interaction. The end of pandemic, however, doesn't mean I'll throw caution to the wind in every situation. For example, I don't think I'll ever not mask up on an airplane. With four shots and one bout of Covid in my system, and less Covid circulating in the community, I'm just willing to take and accept more risk with the virus than I was a few months ago, and certain more than a year ago. 

Three cheers to the end of the Covid-19 national and public health emergencies. It's been a long three years and two months. But we made it across the finish line. Let's just hope that we apply public health lessons we learned and do a better job managing the next public health crisis that confronts us.

A eulogy for Heather Armstrong

Heather Armstrong, the "queen of the mommy bloggers" and the author of Dooce.com, is dead from an apparent suicide after a relapse in her sobriety. She was only 47 years old. She leaves behind two children and a legacy as one of the most important social media influencers ever.

In February 2002, Heather became the first person of which I'm aware to be fired for something she wrote online. One of her co-workers discovered that Heather was the author of an anonymous blog that, in part, discussed her workplace and her co-workers. Most of what she wrote was unflattering. That person anonymously reported Heather to their HR department. She was then fired because of some of the things she had written.

My privilege is NOT a superpower

I am currently in Nashville, at the Craft Brewers Conference. I'm spending my time split between networking at the Start A Brewery lounge that my firm is co-sponsoring, and attending educational sessions. One such session, which I attended yesterday, was titled, Privilege as Your Superpower. 

Here's the session description:

In these turbulent times, so many know they want to do something about inequity, but don't know where to start. Unfortunately, concerns about saying the wrong thing or not having the power to create change lead many to do nothing. It is essential for leaders to understand the concepts of both systemic and individual privilege, because when they do, they will find that their privileges are actually their superpowers.

It is a laudable goal to promote the understanding of "privilege" so that we can do better with DEI issues in our organizations.

But here's the problem — the presenter was a white, female leadership consultant. 

The 6th nominee for the “Worst Employer of 2023” is … the defecation denier

“Joshua Amin alleges that he was denied a bathroom break by his supervisor at UPS warehouse until he was forced to defecate on himself at his workstation.”

This really happened … or at least Amin claims in his lawsuit that it did.

According to Amin, he was ill and needed to use the restroom ASAP, which a supervisor approved. On the way, he ran into division manager Sergio Castro, who told him that he had already used his break and that he needed to get back to work. After Amin explained his situation, Castro threatened to “walk him out right now” if Amin didn’t return to his workstation.

After Amin complied, Castro followed and taunted him, saying, “I guess if you got to go … you can use [the restroom] right here, where you are.” That is exactly what Amin did. Castro then yelled out that if Amin’s coworkers needed to use the restroom outside of their ten-minute break, they could relieve themselves at their station, “just like Josh.” Castro also forced Amin to work in soiled pants for another twenty minutes.

Can we please stop treating employees like children. If someone has to go the bathroom you let them go to the bathroom. You don’t bully them into soiling their pants and further bully them about it after the fact. This behavior is inexcusable, and it’s why this is my 6th nominee for the Worst Employer of 2023.

WIRTW #671: the “CBC” edition

Next week I'll be at the Craft Brewers Conference in Nashville — a four-day gathering presented by the Brewers Association of all things craft brewers and craft beer. There are loads of speakers spread across eight educational tracks, a massive trade show, and too many networking opportunities to count.

On the educational front, I'm speaking twice: once on Sunday (at 2:55p in Davidson Ballroom A) as part of the THRIVE pre-conference workshop discussing, along with my co-presenter Ren Navarro, ADA accessibility and inclusivity for employees and patrons; and again on Tuesday (at 1p in Davidson Ballroom B) discussing how to legally pay tipped employees.

On the networking front, instead of opting for a trade show booth, my firm is sponsoring the Start A Brewery lounge. Start A Brewery is a community of craft beer industry veterans who share our knowledge and experience in support of the craft beer community by helping new breweries and breweries in planning.

If you're at CBC and want to connect, look for me in the Start A Brewery lounge. I will be in and out from 10a - 4p on May 8 and 9 (the lounge is also open May 10).

The lounge is located on the 3rd floor of the Music City Center, centrally across from the Expo entrance at Hall B-C. There will be beer available on either side of us and we'll have couches and charging stations to refresh yourself and your devices.

Please let me know if you plan on stopping in so that I can make sure I'm present and available. And please say hello if you're at either of my speaking sessions or just happen to run into me at the Conference or at any of the events around Nashville. I will happily share a beer with you and cheers our industry.

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

When you offer a reason for something, you better be really, really sure it’s correct

It is with great sadness that we announce that the Founders Detroit Taproom will be permanently closing its doors today.

Unfortunately, our Detroit location has not been immune to the struggle to regain foot traffic after temporary Covid closures that have impacted restaurants and bars across the nation.

That was the message that Founders Brewing Company posted across its social media channels earlier this week.

There is no doubt that the bar and restaurant industry has struggled throughout the pandemic and, in pockets, continues to struggle. Consider, however, that less than three hours before Founders announced its Detroit taproom closure, it was sued by a Black employee claiming that the brewery promoted her "purely for optic reasons" and subjected her to "egregious racial harassment" that was "so objectively racially hostile that she had no choice but to resign" last week.

An employee may not have a right to receive a reasonable accommodation, but they at least have a right to conversation about it

The EEOC has sued Mercy Health St. Mary's for religious discrimination, claiming that it violated Title VII by rescinding a job offer to an applicant who, for religious reasons, refused to obtain a flu vaccine pursuant to hospital policy.

According to the EEOC's lawsuit, the hospital arbitrarily denied the applicant's request for an accommodation from its vaccination policy and rescinded the job offer, without specifying why or how the request for an exemption accommodation was deficient. Instead, the EEOC alleges, it should have offered an opportunity to supplement the accommodation request to address any perceived deficiencies.

N-word + noose = jury trial

In the nine months that Tyrone Rembert worked as a temporary employee at Swagelok Company, he claims he was subjected to the following:

• The routine use of the N-word, including his two white supervisors directing it towards him at least 50 times.
• A coworker holding up a noose fashioned out of hose pipe and saying, "This is what we do around here."
  
• A supervisor telling him, "I see you have your black face on today."
• Repeated threats of violence, including a group of white employees telling him, "There are enough of us to take you down," and "You better pray."

WIRTW #670: the “dope” edition

"Write a rap about employment lawyer Jon Hyman."

That was the prompt I gave to ChatGPT. I think what it came up with is pretty, pretty good.

* * *

Listen up, y'all, let me tell you a story

'Bout a lawyer named Jon Hyman, he's got all the glory

He's an employment law expert, with knowledge so vast

If you need legal advice, he's the one to ask

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

He's got a blog called "Ohio Employer Law"

Where he shares his wisdom, and he never withdraws

He's got the answers to all of your questions

His legal advice is a legal injection

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

He's got the passion, he's got the drive

He'll never give up, he'll always strive

To protect your rights, and make things right

He's the legal eagle, he's got the might

Jon Hyman, Jon Hyman, he's the man

He'll fight for your rights, he's got a solid plan

Employment law is his game, he's got the skills

He'll win your case, just pay your bills

So if you need a lawyer, don't hesitate

Jon Hyman's the man, he's got what it takes

He'll fight for your rights, he'll make things right

Jon Hyman, he's the legal eagle in sight.

(That 💩 is dope!)

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

Intentional misgendering IS sexual harassment

Jane works as a cashier at a donut shop. She is a transgender female who identifies by a female name and female pronouns. Her supervisor, Lisa, however, refuses to use Jane's preferred gender. She uses Jane's male legal name, male pronouns, and "dude" when referring to her, despite Jane's frequent requests for her to use female pronouns and the preferred female name. Lisa would similarly encourage customers not to use Jane's preferred name or pronouns.

Did Lisa create a hostile work environment based on Jane's sex? 

You bet she did.

Your anti-harassment obligations are 24/7/365

"I did not know that a workplace policy could be enforced when you're not at work."

Those are the words of former Tennessee Representative Scotty Campbell, spoken to a reporter a mere six hours before he resigned his seat in State General Assembly after a bipartisan ethics subcommittee concluded that he had sexually harassed two female  interns. 

Tip credits, tip pools, and slutty vegans

Bar Vegan in an affiliate of Slutty Vegan, a plant-based restaurant chain that finds itself in the crosshairs of a wage-and-hour collective action lawsuit challenging how it pays its tipped employees. The issue focuses on the bar claiming a tip credit and paying its tipped bartenders less than the statutory minimum wage. That practice, in and of itself, is legal. What makes it allegedly illegal in this case, however, is how Bar Vegan distributes tips among its staff, and more specifically that it permits non-tipped employees to participate in a tip pool with its tipped bartenders.

That's an FLSA no-no.

The 5th nominee for the “Worst Employer of 2023” is … the dog dumper

"You can only keep one, your current job or your family pet; which do you choose?" Most would choose the family pet. Which is why it’s so appalling that Clearlink CEO James Clarke used the example of an employee who sold his family dog to enable his return to the working from the office as a sterling example of the type of work ethic expected of all of his employees.

WIRTW #669: the “Lamborghini” edition

Either I cashed in some sweet crypto and bought a Lamborghini … or someone hacked my Instagram account.

(Hint: it's the second one.)

The most frustrating part is that I can't recover the account. 2FA isn’t working correctly so I can't reset my password. As a backup to confirm I'm me, Instagram asks for a video selfie to compare against photos in my account. But no matter how many selfies I submit, Instagram won't confirm me.

So I'm in Instagram hell, with an account I can't access, but someone else can. Meanwhile, they're using the account to spam my followers with nefarious requests about a new bakery "I" am opening that I can only assume will get them hacked, too.

Help!

If you work at Instagram or Meta and can help me get my account back (or can direct me to someone who can) I'll be eternally grateful.

For now, don’t click any links in any of "my" Insta Stories or Insta DMs from "my" account.

In the meantime, and until further notice, I'll be using the Insta account for The Norah and Dad Show Podcast as my own (with my co-host's/daughter's permission). Please follow me there.

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

Please don’t use “fit” to justify an employment decision, no matter what the 4th Circuit just said

"You're not a good fit." 

This statement could mean a lot of things. 

It could be innocuous description of a host of performance issues. 

But it could also mean—

"You're not white."

"You're not male."

"You're not Christian enough." 

"You're too Brown. 

"You're too old."

"You're too disabled." 

With this background, consider Lashley v. Spartanburg Methodist College, which involved a teacher suing her former employer after it did not renew her contact because they "were not a good fit for each other." The teacher claimed "good fit" was pretext for retaliation based on her prior request for a disability reasonable accommodation.

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.