WIRTW #687: the “red rain” edition

What was your worst day at work? 

If you work at Destilaria Levira, in Levira, Portugal, it was almost certainly this past weekend, when two wine storage vats exploded, flooding the town with 2.2m liters of "good quality" red wine. 

But a company is not defined by its disasters, it's defined by how it handles them after the fact. And this business handled his disaster very, very well.

"Dear Neighbors," its Facebook post began. 

We deeply regret the incident that occurred this morning involving the bursting of 2 suitable-to-consumption DOC wine storage units stemming from the extraordinary government support measure to producers and wineries of the Distillation Crisis 2023 motivated by the excess of wine in the country. 

Although the incident did not cause any injuries, we want to express our sincere concern for the damage caused in general in Levira and in particular to his home.  

 

The causes of the incident are being investigated by the competent authorities. 

We take full responsibility for the costs associated with damage cleanup and repair, with crews available to do it immediately. We're committed to resolving this situation as soon as possible.

Please keep photographic records of damages and damages and contact us to discuss the details and coordinate the necessary procedures. We are available at any time to help you resolve this issue.

Once again we apologize for the inconvenience caused and we're committed to doing whatever is necessary to remedy the situation.

Thank you very much and once again, we are very sorry.

Repeat after me: Never, ever, ever ignore court orders

Have you ever heard of a "writ of body attachment?" Me neither, until yesterday. That's when the 7th Circuit Court of Appeals issued one against Timothy and Carley Dillett, two corporate officials of Haven Salon + Spa, and ordered federal marshals to take them into custody.

What did the Dilletts do to earn the ire of a federal appeals court and wind up in custody?

They repeatedly and willfully ignored the NLRB's and the Court's orders.

If you bet on which of your employees will get Covid, you probably shouldn’t qualify for a bonus

In late 2020, Tyson Foods fired seven of its pork processing plant managers after they were caught betting on which of their employees would next get sick with Covid. At that time, more than 1,000 Tyson employees had fallen ill, and six had died. In announcing the firings, the company's President and CEO said, "The behaviors exhibited by these individuals do not represent the Tyson core values, which is why we took immediate and appropriate action to get to the truth. Now that the investigation has concluded, we are taking action based on the findings."

Not content with leaving well enough alone, five of the seven fired managers sued Tyson Foods claiming that the company owed them a bonus payment pursuant to the company's Annual Incentive Plan. 

The 9th nominee for the “Worst Employer of 2023” is … the cake boss

Telling an employee to "Eat a Dick" won't earn you a nomination for the Worst Employer of 2023. 

Writing "Eat a Dick" on the inside lid of a box holding a penis-shaped cake you have delivered to an employee won't even earn you a nomination for the Worst Employer of 2023. 

But doing so when you're the company's HR manager? That will earn you a well-deserved nomination to this year's list.

WIRTW #686: the “non-union label” edition

(With a huge tip of the hat to my friend Mike VanDervort for the idea), and inspired by the impending union election at Creature Comforts, I asked Bard, Google's AI assistant, the following question: "What are some good names for a union-free craft beer?"

Bard's suggestions:

• Free Range Ale
• Independent IPA
• Maverick Pale Ale
• Unshackled Wheat 
• Renegade Stout
• Free Spirit Saison
• Unbowed Brown Ale
• Unbound Amber Ale
• Defiant Pilsner
• Untamed IPA
• Wild Card Porter

But it is its rationale for choosing those names that is the most enlightening. 

These names all convey the idea of being free from union control, while also being creative and catchy. They would be a good fit for a craft beer that is brewed by a small, independent brewery that values its employees and gives them a fair wage.

There's a whole lot of wisdom in the statement that valuing your employees and paying them a fair wage is what a business needs to do to stay union free. So, crack open an Unshackled Wheat or an Independent IPA and toast those businesses that treat their employees like people, and not like replaceable widgets whose only goal is to make the company profits; they will be the employers that will remain union free, even as the NLRB is doing everything within (and without) its power to unionize as many businesses as possible.

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Can you hear me now?! Jury awards deaf truck driver $36M in disability discrimination lawsuit

$36 million is a number large enough to get anyone's attention. It certainly got the attention of Drivers Management, LLC and Werner Enterprises, Inc., after a federal jury awarded the EEOC that amount in a disability discrimination lawsuit it filed on behalf of Victor Robinson, a deaf truck driver, denied employment because of his disability.

OSHA wants to let union reps into your non-union facility

If OSHA gets its way, you might have to start opening the doors of your business to union reps during the agency's safety inspections.

Pursuant to a new rule proposed by OSHA, in the event of an OSHA inspection an employee can designate another employee or a non-employee third-party to accompany the OSHA agent during the physical workplace inspection.

WIRTW #685: the “good bosses” edition

I write about a lot of horrible, terrible bosses … the worst employers. 

Today, however, I want to use this space to shine a light on five really, really great bosses … specifically late-night hosts Stephen Colbert, Jimmy Fallon, Jimmy Kimmel, Seth Meyers, and John Oliver. This week, they launched a new podcast — Strike Force Five — to raise money for their employees that have been out of work since the WGA went on strike 122 days ago. 

The hosts are donating all proceeds they receive from the podcast to the out-of-work staff from their respective shows.

Do them a favor and show your support and appreciation by finding Strike Force Five in your podcast app of choice and subscribing. 

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DOL announced proposed rule to increase salary threshold for white-collar exempt employees

$1,059 per week. If the Department of Labor gets its wish, that amount will become the new salary threshold for its various white-collar overtime exemptions. Yesterday, the DOL published a notice of proposed rulemaking seeking to increase the FLSA's salary test from the current threshold of $684 per week ($35,568 annually) to $1,059 per week ($55,068 annually).

You will read a lot over the next couple of months that the DOL increasing its white-collar salary threshold by nearly 55% is a huge deal. I'm here to tell you that it really isn't.

NLRB opens the tap for a union election at Creature Comforts Brewing Company … but will it matter?

It took more than seven months, but the NLRB has finally directed a union representation election at Creature Comforts Brewing Company. The NLRB will soon hold a secret ballot election over whether employees wish to be represented for purposes of collective bargaining by the Brewing Union of Georgia. 

The bigger issue for Creature Comforts, however, is that even if it wins the election, the union will almost certainly use its four pending unfair labor practice charges against the employer to seek a bargaining order under the Board's recent Cemex decision (which the Board will apply retroactively).

EEOC busts a quartet of hospitality employers for pervasive sexual harassment

In a press release, the EEOC announced the filing of a series of sexual harassment lawsuits against Las Vegas hospitality employers. 

[The l]awsuits … allege sexual harassment towards employees by owners, supervisors and management, co-workers, and/or customers. The four lawsuits included allegations raised by workers throughout the hospitality industry, from housekeepers in hotels to waitstaff in both high-end and casual restaurants and bars. Allegations included the attempted rape of a young housekeeper, sexual assault, sexual solicitations, sexual comments, inappropriate touching, stalking, and other inappropriate behaviors. 

These lawsuits are consistent with agency's enforcement priorities as outlined in its just-released Strategic Plan, which includes targeting education and enforcement effots to protect vulnerable communities.

BREAKING NEWS: NLRB issues in the era of card-check union recognition and bargaining order remedies

In Cemex Construction Materials Pacific, the NLRB significantly altered the process for how a labor union becomes certified as the exclusive bargaining representative of a group of employees.
Cemex eliminates (1) secret-ballot representation elections upon the presentation of signed authorization cards; and (2) re-run elections in the face of election-campaign unfair labor practices.

In their place, Cemex: (1) requires an employer to recognize and bargain with a union upon its presentation of a majority of signed authorization cards unless the employer promptly (within two weeks absent unforeseen circumstances) files an RM petition seeking an election; and (2) authorizes the Board to issue a bargaining order instead of directing a second, re-run election if an employer seeking an RM election commits any unfair labor practice prior to election that would require the Board to set the election aside.

WIRTW #684: the “chocolate city” edition

This is Dante, our four-year-old vizsla. Last week, he thought it was a good idea to eat some cocoa powder. As a result, he spent an overnight in the emergency vet hospital; he seems no worse for wear.

Chocolate is toxic to dogs because it contains both theobromine and caffeine, which dogs cannot metabolize and which causes significant and dangerous digestive, neurologic, and cardiac effects. In fact, cocoa powder contains the highest concentration of these chemicals and is the most toxic to dogs. According to vet, the Dante likely ate 2.5 times the lethal limit.

In other words, it's a really good thing we took him in.

He did suffer a cardiac episode while admitted. The vet told us Dante had tachycardia (an abnormally increased heart rate), which they controlled via medicine. He's had no other issues since we brought him home.

We all learned a lesson. Dante (hopefully) learned not to eat cocoa powder. We learned that when you're cleaning out your cabinets as water pours out of your kitchen ceiling from a burst pipe, take the time to make sure the dangerous stuff remains out of reach.

This is me, exhaling a huge sigh of relief. 😮‍💨 😌

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

Determining the exempt status of a dual-purpose employee

Tony works at a local brewery as its assistant general manager. In that capacity, he interviews, hires, trains, coaches, disciplines, and fires lower-level employees; recommends employees for promotions; meets with lower-level managers to ensure they are meeting expectations; and reviews sales, hours, labor, and overtime reports. To meet the operational needs, however, Tony also picks up regular shifts in the taproom performing hourly, nonexempt work such as waiting tables and bartending. Despite his $75,000 annual salary, Tony estimates that he only spends approximately 20% of his working time performing his managerial duties, while he spends the balance of his time on non-exempt tasks.

Is Tony FLSA exempt or FLSA non-exempt?

This is why I hate timeclock rounding policies

The rounding of an employee's clock-ins and clock-out to the nearest of a specific increment of time is perfectly legal. It's also a perfectly terrible idea.

Let me explain.

5th Circuit rejects the “ultimate employment decision” test for workplace discrimination claims

"Female employees are not given full weekends off and can only receive weekdays or partial weekends off."

Is this policy legal or illegal? 

Getting your termination ducks in a row

Just because someone engages in protected conduct doesn't mean you can't fire them. It just means you better have your ducks in a row when you do so.

Case in point: the saga of Nicole Oeuvray and the Art Directors Guild. Oeuvray, who served as the guild's accountant for 16 years, had been one of leaders of a campaign to organize the guild's employees into a labor union.

WIRTW #683: the “here comes the flood” edition

Lord, here comes the flood

We'll say goodbye to flesh and blood

If again the seas are silent in any still alive

It'll be those who gave their island to survive

– Peter Gabriel, "Here Comes the Flood"

That songs has been playing on a loop in my head for the past few days. That's how long it's been since my house flooded. A supply line to our master shower burst, causing my kitchen ceiling to resemble the Bellagio Fountains (but upside-down). 

T he here of our story is my 15-year-old son, Donovan, who was home with no adults. The rest of us were driving home from our daughter's doctor appointment. D-man FaceTimed me to show me the rushing waters. I pulled over into the nearest parking lot and, also via FaceTime, walked him through how to shut off the water from the main.

Without D-man's quick thinking the flood would have been a lot worse. As it stands, we will need a whole new kitchen, along with new carpet both upstairs and in our basement, some new bathroom cabinets, and I'm sure lots of other stuff.

Needless to say, it's been a week.

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

There is no such thing as free speech at work

"Having successfully settled my case with ESPN/Disney, I have decided to leave so I can exercise my first amendment rights more freely."

-vs-

"ESPN and Sage Steele have mutually agreed to part ways. We thank her for her many contributions over the years."

Those are two vastly different statements published by (now former) ESPN anchor Sage Steele and her former employer.

ESPN's statement is standard vanilla for a company announcing someone's departure.

Sage Steele's statement, however, is borderline dangerous because it continues to foster a myth that private sector employees enjoy First Amendment rights at work.

Steele's lawsuit against ESPN followed her removal from the air two years ago after a series of controversial public comments about vaccine mandates ("to mandate … is … sick … and … scary"); female sports reporters and sexual harassment (women need to "be responsible" and it "isn't just on players and athletes and coaches to act a certain way"); and former President Barack Obama's racial identity ("I think that's fascinating considering his Black dad was nowhere to be found, but his White mom and grandma raised him").

Let me say this one more time, loudly, for the people in the back:

THERE IS NO SUCH THING AS FREE SPEECH AT WORK.

The First Amendment to which Sage Steele refers prohibits the government from restricting speech, not private employers — "Congress shall make no law … abridging the freedom of speech…."

Yes, there are some limited exceptions to the lack of workplace free speech rights — government workers; complaints about discrimination; protected concerted activity under the National Labor Relations Act; and the few states that grant speech rights to all employees.

But otherwise, no one should operate under the mistaken impression that they can flap their gums about whatever they want without workplace consequences. People like Sage Steele who continue to perpetrate the fallacy of workplace free speech are doing everyone (including themselves) a grave disservice.

Despite what SCOTUS said about collegiate affirmative action, corporate DEI efforts are still legal

Last week, a federal court judge dismissed a lawsuit filed by a conservative shareholder against Starbucks challenging the company's diversity, equity, and inclusion policies. He called the lawsuit "frivolous."

In 2020, Starbucks decided that it needed a greater representation of BIPOC (Black, Indigenous, People of Color) employees. As a result, it announced a policy that aimed to increase company-wide BIPOC representation to at least 30% in five years. Its efforts included implementing a leadership accelerator program for BIPOC employees, linking executive compensation to meeting DEI goals, and granting funds to community nonprofits.

National Center for Public Policy Research, which owns around $6,000 in Starbucks stock, sued, claiming those policies require the company to make race-based decisions in violation of state and federal civil rights laws. Explaining the lawsuit, the NCPPR said that setting "goals for the number of 'diverse'—meaning not-white—employees it hires … is outright racial discrimination."

Not all reasonable accommodation standards are created equally

Consider this example, and then let's talk.

Lydia works as a cellar person in a brewery. The essential functions of her job include the ability to lift up to 40 lbs. and to move kegs that weigh as much as 160 lbs. She delivers a note from her doctor that says, "No lifting or moving more than 10 pounds."

What are this employer's obligations to offer her a reasonable accommodation for her lifting and moving restrictions? It depends on the medical reason.

Pregnant Workers Fairness Act and pregnancy loss

Missy, a newly hired server in the taproom of a brewery, suffers a miscarriage and asks her manager for ten days of leave to recover. As a new employee, Missy has not yet accrued any paid leave. The employer is too small to be covered by the FMLA and does not have a policy providing any unpaid leave.

Must the brewery grant Missy her requested ten days of post-miscarriage leave?

Historically, the answer could have been no.

WIRTW #682: the “horse hockey” edition

Lou Grant. Leslie Knope. Dr. Mark Greene. Captain Merrill Stubing. Even Michael Scott. The history of television is littered with great bosses. Earlier this week my friend Suzanne Lucas asked her vast LinkedIn network to name their choice for the “best” tv boss. Her choices were District Attorney Adam Schiff and Lieutenant Anita Van Buren, from Law & Order.

My choice: Colonel Sherman T. Potter, who adroitly and compassionately led M*A*S*H's 4077 for the series' final 8 seasons.

What made Col. Potter the best boss?

First and foremost, he always had his team's back, no matter what. He took ownership of his group and shouldered the blame whenever something went wrong. As the 4077's leader, the buck stopped with him, period. Which is not to say that his unit didn't have accountability. To the contrary, he always held his people accountable inside his unit, even as he defended them to everyone outside. When his people screwed up (as they often did), he made sure they understood and that it never happened again.

Col. Potter also embodied much of the best qualities of a good boss. His integrity was unmatched and unquestioned. He always encouraged everyone in his command to be the best versions of themselves and led by example. He knew when to use humor to lighten a situation and when to put the screws to him team. And, most importantly, he never forgot that his doctors, nurses, and other charges weren't soldiers by trade but were stuck in the middle of war zone. It's his empathy and compassion that stands out the most from all of his other admirable qualities.

And that's why Sherman Potter is the correct answer as the best tv boss of all time.

Who is your choice? Share in the comments below.

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

$2.6 million reasons why it’s illegal to fire a gay employee

Yesterday, a federal jury in Columbus returned a $2.6 million verdict in favor of Stacey Yerkes, a former Ohio State Highway Patrol employee who claimed that she was constructively discharged (forced to quit based on intolerable and unreasonable working conditions) because of her sexual orientation.

Despite what he says, Elon Musk will not pay your legal bills if you’re fired for Xing

"If you were unfairly treated by your employer due to posting or liking something on this platform, we will fund your legal bill. No limit. Please let us know."

Elon Musk tweeted (xed?) that note Saturday night to his 152 million followers on his platform. Thus far it’s been liked close to 850,000 times, quoted or retweeted more than 165,000 times, and viewed nearly 130 million times.

And it's complete and total rubbish.

Work and religion aren’t a Reese’s Peanut Butter Cup

Everyone's relationship with God — whether you call that deity God, Yahweh, Jesus, Allah, Vishnu, Buddha, the Flying Spaghetti Monster, something else, or nothing at all — is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today's discussion, which focuses on a Title VII lawsuit the EEOC recently settled with Aurora Pro Services, a North Carolina residential home service and repair company, alleged to have required employees to participate in religious prayer sessions as a condition of employment. 

WIRTW #681: the “excel-lent” edition

To be the man (or woman), you've gotta beat the man (or woman).

And to beat the man (or woman), you've gotta be really, really good at pivot tables and the xlookup function.

Earlier this morning, ESPN2 aired the Microsoft Excel World Championship.

You read that correctly — the world championship of spreadsheeting.

How in the world does one convert Microsoft Excel into a competitive sport? The answer is by tasking competitors to use Excel to solve complex puzzles. The eight contestants are provided "cases" to solve. Past examples include computing all of the possible outcomes and rewards for a slot machine or all of the possible combinations of license plate numbers. Contestants are then provided 30 minutes to answer a series of questions related to each case worth up to 1,000 points; the most points wins.

It's fascinating and compelling to watch, and I made sure to tune in before I left for work this morning. No spoilers on who won. I know you can find a replay and I want you to discover the joy of this event all on your own.

So here's my fun Friday question for everyone — If given the opportunity, what aspect of your job would you turn into a competitive sport? Mine would probably have something to do with Lexis searches … or maybe a race to make a filing deadline?

No wrong answers. Please share in the comments below.

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

NLRB resets the rules on employee handbooks … yet again

Yes, we need to talk about employee handbooks and the NLRB … again. 

Yesterday, the Board decided Stericycle, Inc., and announced its 5th (at least) new and different standard in the past 25 years as to when a workplace policy (such as those in employee handbooks) violate employees' rights to engage in protected concerted activity under the National Labor Relations Act to talk between and among themselves about their terms and conditions of employment.

It's enough to give an HR practitioner or employment lawyer legal whiplash, and I'm not going to go through the history of all of these various disparate standards. If you want full history, you can read the Stericycle opinion or search the blog's archives.

What you really want, and need, is a summary of the new standard moving forward (and, as you'll soon discover, backward). Here it is.

The No Robot Bosses Act

"I, for one, welcome our robot overlords." 🙃

Consider this scenario. "You're a delivery driver and your employer's tracking algorithm determines you’re not performing up to its standards — and then sends you an email to let you know you've been fired without any warning or opportunity to speak to a human being." According to Senator Bob Casey, it is this example, along with others, that caused him to draft the the "No Robot Bosses Act."

If enacted, it would add protections for job applicants and employees related to automated decision systems and would require employers to disclose when and how these systems are being used.

Managing an overly sensitive employee

Floyd Sesson, a Black UPS parts mechanic, saw race discrimination in every turn within his workplace.

When UPS changed its policy to prohibit overtime for all parts mechanics, Sesson claimed that the policy unlawfully targeted him because of his race.

When Sesson complained to management about the overtime cuts, he claimed he further lost overtime in retaliation for his complaints.

When supervisors tried to manage Sesson, he claimed they were harassing him because of his race.

The 6th Circuit had little difficulty in affirming the dismissal of Sesson's discrimination, retaliation, and harassment lawsuit.

The time has come to legislate gluten-free food

"I'm gluten free…"

That's how my 15-year-old starts his order at every restaurant. He has Celiac disease and gets very ill anytime he eats gluten.

For the uninformed, Celiac disease is a genetic autoimmune condition that affects the gastrointestinal tract when gluten — a protein found in wheat, barley, and rye — is ingested. When someone with Celiac disease eats gluten, the lining of the small intestine is damaged. In Donovan's case he gets serious gastrointestinal symptoms, sometimes for days.

Thus, Donovan is very particular in what he eats and how he orders, as was the case last week at the Fargo Bar & Grill, a dinnertime stop we made while visiting family on the Finger Lakes last weekend.

WIRTW #680: the “walk up song” edition

Above the Law thinks that it's time for lawyers to have walk-up songs. 

History says that the walk-up song started at Old Comiskey Park in 1970, with the White Sox organist playing each player's home state song as they walked up to the plate. Over time, the tradition expanded to other ballparks and different music. 

What's the most famous walk-up song of all time? I'd argue Ricky "Wild Thing" Vaughn's "Wild Thing" (from the movie "Major League"). In real life? Mariano Rivera's "Enter Sandman"? Chase Utley's "Kashmir"? Trevor Hoffman's "Hells Bells"?

Which brings me back to the question posed by Above the Law: What would our lives be like if our own theme songs accompanied us while we work? 

It's a great question. I think mine would be "Career Opportunities" by The Clash. Driving guitar + a workplace theme = gold for this employment lawyer.

How about you? What walk-up song would you choose for your job?

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

6th Circuit opinion guts the validity of e-signatures on employment documents

"I never saw that agreement and I never signed it." That's all that Andrew Bazemore said under oath in defense of Papa John's claim that he was required to arbitrate his FLSA claim relating to an under-reimbursement of vehicle expenses.

The 6th Circuit held that Bazemore's otherwise unsupported declaration was enough to create an issue of fact as to the arbitrability of his claim. 

X marks the spot

There's nothing inherently illegal about naming one of your conference rooms "s3xy." If, however, your company has a history of allegations of sexual harassment and other sex discrimination, it's not the wisest choice.

"s3Xy" is among the names X (née Twitter) chose to rebrand the conference rooms inside its corporate offices. X's sister companies, SpaceX and Tesla, have a long history of defending sexual harassment lawsuits (and allegedly retaliating against the victims). All of these companies have one thing in common — Elon Musk.

WIRTW #679: the “Portugal. The Podcast” edition

It's been a hot minute since my daughter and I recorded an episode of our podcast, The Norah and Dad Show. It only took a Portuguese holiday to get us off our duffs to record. It was a trip more than three years in the making (thanks to Covid), and we made the most of it — 12 days spread across Porto, Peniche, and Lisbon. On the episode we share our favorites from each of our three stops, some restaurant recommendations, cool sights and sounds (peacocks!), and our overall impressions of an amazing country.

You'll find it wherever you get you podcasts, including Apple, Spotify, Google, Amazon, and on the web.

When you finished listening to The Norah and Dad Show, I have two additional podcasts I recorded this week that you should also check out: The World at Work Workspan Podcast (discussing the significance of SCOTUS's end-of-term flurry of opinions) and DriveThru HR''s Labor Relatedly (discussing the ongoing Hollywood labor strikes and what they mean for all employers).

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

Never send an accused harasser on a business trip with his alleged victim

"If he wants to sleep with someone, you have to say yes. It's normal that the coach sleeps with the players in our team."

That's what an anonymous player told The Guardian about Bruce Mwape, head coach of the Zambia women's national team.

Are we really still talking about masks?

In-N-Out burgers are mid. Its employment practices are even worse.  

The restaurant chain is prohibiting employees in five states from wearing masks unless they receive a medical note from a doctor. 

The new rules apply to employees in five red or purple states — Arizona, Colorado, Nevada, Texas and Utah. Meanwhile, employees in two blue states — Oregon and California — may still opt to wear a mask as long as it's a company-approved N95. 

According to a company-wide memo, these new rule are designed to "emphasize the importance of customer service and the ability to show our Associates' smiles and other facial features." 

The 8th nominee for the “Worst Employer of 2023” is … the head hunter

If you work for the Anatomical Gift Association of Illinois (a non-profit organization dedicated to the procurement, preparation, and preservation of donations for medical and scientific study), body parts are an unfortunate occupational hazard. If, however, you lodge complaints with your supervisors about the "mishandling and poor conditions" of donated bodies, and then find three dismembered heads waiting for you at your desk … that occupational hazard becomes retaliation.

Why all employers should care about the SAG-AFTRA and WGA strikes

At midnight on July 14, SAG-AFTRA, the labor union representing 160,000 film and television actors, went on striking, joining their fellow members of the WGA on the Hollywood picket lines. 

One of the key issues in both negotiations in the future of AI in the entertainment industry. SAG-AFTRA claims that the studios want the ability to pay background actors for one day's work use that likeness in perpetuity for any project without consent or compensation, including through the use of generative AI to fully replace the live actor. Similarly, a key sticking point for the WGA is the use of generative AI to write scripts in their entirety, which can then be edited by lower-priced non-union members.

WIRTW #678: the “Happy Birthday” edition

Today is Donovan's 15th birthday. So, everyone please do this dad a solid and wish a 🎂 happy birthday 🎂 to this funny, smart, caring, compassionate, empathic, goofy, loving (and video-game loving) kid. I am better person because Donovan is my life.

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

A disabled employee is entitled to a “reasonable” accommodation, not a “preferred” accommodation

Jay Hannah worked as a package delivery driver for UPS. He developed hip bursitis, which caused pain in his lower back, hip, and buttocks. As a result, he requested two alternative reasonable accommodations: either that UPS allow him to drive his route with a smaller truck with softer suspension or that UPS reassign him to a non-driving inside job. 

UPS denied both requests. It determined that the specific needs of Hannah's route required a larger truck, and that the smaller van had an insufficient capacity to service his route. Other possible alternatives that could have permitted Hannah to use a smaller truck — giving a part of his route to another driver or completing the route himself in multiple trips — were not feasible as each would violate the governing collective bargaining agreement. Further, there were no openings for inside work at the time. UPS advised Hannah that it would consider him for any openings as they arose.

While UPS denied Hannah the particular accommodations he requested, it did allow him to retain his job and take a leave of absence without pay until he could return to work. And after several months, Hannah did return to work and thereafter continued to drive the route to which he was assigned in a truck suited for that route.

Color me unsurprised that businesses are already using 303 Creative to discriminate

If a human identifies as anything other than a man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.

Those are the words of Christine Geiger, the owner of Studio 8 Hair Lab, in a post on the business's now-deleted Facebook page. In a still-available comment on another Facebook page, Geiger says, "I have no issues with LGB. It’s the TQ+ that I'm not going to support. For those that don't know what the + is for, it's for MAP (Minor Attracted Person aka: pedophile)." Meanwhile, the business's private Instagram page describes itself as, "A private CONSERVATIVE business that does not cater to woke ideologies." 

We get the point. Geiger doesn't like transgender people and is using her religion and the Supreme Court's decision in 303 Creative v. Elenis to justify her discrimination.

“Geographical discrimination” is NOT a thing

"If you don’t relocate and return to in-person work, we’re going to have to let you go." Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back.

According to a recent report, employees are considering suing their employers for geographical discrimination. 

Workers who moved to another city, state, or even country from their employer's main office during the pandemic are claiming that they're being discriminated against geographically by being forced to return to in-person work.

If you can’t beat ’em, sue ’em.

“Competition is fine, cheating is not.” That’s what Elon Musk tweeted after Twitter’s lawyer’s cease and desist letter to Mark Zuckerberg went public.

Twitter accuses Meta of engaging “in systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

The problem, however, is that according to Meta, “No one on the Threads engineering team is a former Twitter employee — that’s just not a thing.” 

WIRTW #677: the “de minimus” edition

Employee: "I can't work Sundays. It's against my religion."

Employer (before yesterday's Supreme Court decision in Groff v. DeJoy): "I'm sorry, but it's an undue hardship for us to redo our entire schedule and require another employee to work in your place. Unless you can find a volunteer co-worker to cover your shift, we can't accommodate you. In that case, any absences are unexcused and will be treated as such under our attendance policy."

Employer (after yesterday's Supreme Court decision in Groff v. DeJoy): "Let's talk."

Groff examined the standard for an employer to assert an undue hardship defense to an employee's religious accommodation request under Title VII. Until yesterday's opinion, an employer could reject an employee's request for a religious reasonable accommodation request if it would impose "more than a de minimis cost." Groff, however, rejected the long-applied de minimus standard. The Supreme Court held:

Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

This is a paradigm shift for how employers must consider reasonable accommodations for employees' sincerely held religious observance or practices. Ultimately, an employer will have to evaluate, and a court may have to make a common-sense determination, whether the impact of a potential accommodation is too great for an employer to bear — something akin to a "substantial additional cost" or a "substantial expenditure." It's still a case-by-case factual determination, but it's one that now has some teeth behind it for the employee seeking a religious accommodation.

The Court went on to add to this undue hardship is not the same undue hardship test as courts apply under the ADA ("significant difficulty or expense"). Further, because much of existing EEOC guidance on Title VII religious accommodations focus the accommodation itself, and not the undue hardship test, it's likely mostly still good guidance on which employers, employees, and courts can rely. 

Still, we shouldn't downplay the significance of this decision, especially coming off the heels of a pandemic's workplace vaccine mandates that forced many employers to confront the issue of religious accommodations for the very first time. 

Employers, your job in evaluating religious accommodation requests just became that much more rigorous. The good news, however, is that even though the hardship standard is not quite the same as under the ADA, we should all at least be used to the rigors of the interactive process from years of handling myriad disability accommodations. 

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

“Loud quitting”

Quiet quitting is so 2022. According to CNBC (citing Gallup’s 2023 State of the Global Workplace Report) loud quitting is all the rage.

What is loud quitting? Employees who "take actions that directly harm the organization, undercutting its goals and opposing its leaders." Such actions include, for example, bad-mouthing their boss on LinkedIn on their way out the door or riling up co-workers before they leave.

The Gallup survey blames management for this crisis. "At some point along the way, the trust between employee and employer was severely broken," Gallup wrote. "Or the employee has been woefully mismatched to a role, causing constant crises." 

I say, "Hogwash!" 

Employer correctly fires employee for posting racist meme, court says

Rita Hall worked as a line supervisor at Kosei St. Mary's Corporation when she decided to post a meme of two juxtaposed photos on her personal Facebook page — one photo of a group of monkeys on and around a car, and a second photo of a group of Black people on and around a car. At least three of Hall's subordinates and coworkers filed complaints with KSM's human resources department about the racist meme, and the company subsequently terminated Hall because of it.

In her wrongful discharge lawsuit, the court of appeals had a lot to say about Hall's free speech rights at work, none of it good for the former employee or her lawsuit.

Can an employer disable online commenting to quell pro-union messaging?

There's a lot going on with the union organizing campaign at Creature Comforts Brewing Company. While the union (known as "BUG") continues to wait for the NLRB to schedule a representation election, BUG continues to accuse the brewery of illegal union busting. 

According to the BUG, the brewery (allegedly) illegally fired Spencer "Spicy" Britton, one of the union's biggest supporters. Moreover, the public and the brewery's employees can no longer express their opposition to the brewery's alleged union busting tactics by posting comments on Creature Comforts' Instagram posts. The brewery has disabled the ability to comment on all new posts since March 29.

I'd like to tell you that because the Instagram comment policy applies equally to everyone (non-employees and employees), there's nothing unlawful about it under the National Labor Relations Act. But with the current composition of the most pro-union NLRB in history and its equally pro-union general counsel, all bets are off. I'd have real concerns permitting a client to take this step under these or similar circumstances.

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?