WIRTW #693: the “tough out” edition

If you've been following along these past few weeks with the trials of the Lake Ridge Academy soccer team, I have some sad news to share. Earlier this week they fell 2-0 in the district semifinals to a quality opponent, ending their season. It was a hard-fought match, scoreless for 65 minutes. There were lots of tears in my car after the game. The team set a goal, of which they fell a couple of games short. That said, it was the best soccer season this team has had in 15 years.

Donovan had an amazing experience. He fully embraced being one of the "soccer boys," and is already thinking about his sophomore season. "220 days until practice starts," he told me the next morning. He's says he's going to start training ASAP with a personal goal of improving and gaining more playing time next year.

As for me, I've never been a sports parent before. I've always been a music parent (which y'all know I love). I'm happy to report that being a sports parent is pretty damn great. I loved everything about this team and this season. The wins and losses were the least import part. More importantly, I loved watching Donovan embrace being part of a team and the team embracing him as one of their own. Like D-man, I'm already ready for the 2024-25 season. 

Go Royals!

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

Workplace harassment and employee assistance programs

Is it legal under the ADA to mandate that an employee accused of sexual harassment use the company's employee assistance program? That's the question being asked in a lawsuit the EEOC just filed against Weis Markets.

Do politics and work mix? A poll.

Do politics and work mix? That is the question being asked at Copper Blue Restaurant.

A half-dozen employees recently quit in protest after the owner posted a "Vote NO on Issue 1" sign in front of the restaurant. The resulting staffing shortage forced its temporary closure.

Issue 1 is a Nov. 7 ballot initiative that seeks to amend the Ohio's Constitution to grant women the right to an abortion.

Not surprisingly, the issue is polarizing.

Kickbacks are bad

It's one thing to settle an unpaid overtime claim; it's another entirely to shake down your employees to repay the settlement funds to you.

That's exactly what the Department of Labor claimed Sparklean Laundry and Piper did.

Following a DOL investigation, Sparklean agreed to pay unpaid overtime back wages to its employees. Shortly thereafter, it began demanding kickbacks from its employees to compensate for the overtime settlement, submitted false receipts to showing that it paid the recovered wages, and threatened workers for exercising their rights under the Fair Labor Standards Act.

As a result, the DOL went to court and obtained a $281,870 judgment, which included $87,735 in back wages, $94,135 in liquidated damages, and an additional $100,000 in punitive damages.

Is this what the future of union organizing looks like?

Last week, the employees of Creature Comforts Brewing Co. voted by a margin of 32-21 to reject the Brewing Union of Georgia as their bargaining representative and for their workplace to remain union-free. The National Labor Relations Board conducted and supervised the secret-ballot election, and the result presumes to reflect the choice of Creature Comforts' employees.

Except maybe that secret-ballot election is not the choice of Creature Comforts' employees?

I fully expect BUG to file a petition with the NLRB seeking a Cemex bargaining order. What is a Cemex bargaining order, you ask? 

WIRTW #692: the “hot diggity dog” edition

As parents, we live and die with the successes and failures of our children. We need to fully embrace the highs so that we have the stored capital to survive the lows. This past week brough me a couple of highs to share. 

First, last Saturday night, Norah took her musical talents eastward, to 8th Day Brewing Company. She played a killer 3-hour set, punctuated by the bar filling with a hot-dog themed bar crawl singalong for her final hour. 

Then, yesterday evening, Donovan's Lake Ridge Academy soccer team won their opening playoff game, defeating Waynedale 2-0. That's 1 down, 6 to go, on their march to a state title.

You can next watch Lake Ridge Academy try to continue their soccer season on Tuesday against Kidron Christian Academy, at a place and time tbd. Meanwhile, Norah will next gig at The Olde Wine Cellar on Friday, October 27, 2023. 

Everyone have a great weekend!

Failure to advise employer of a disability dooms employee’s ADA claim

True or false — An employer must always reasonably accommodate an employee’s disability if necessary to permit the employee to perform the essential functions of the job unless it causes an undue hardship on the employer?

Answer — False. An employer does not have an obligation to grant a reasonable accommodation that an employee never requests.

Case in point: Mueck v. La Grange Acquisitions.

Employers need to be more vigilant than ever with anti-Jewish and anti-Muslim bias

Not all Jews are Zionists colonizers, and not all Muslims are Hamas terrorists. In fact, most aren't. Moreover, you can oppose the policies or actions of the Israeli government without being antisemitic and oppose Hamas without being anti-Muslim.

Yet, the ongoing conflict between Israel and Hamas has brought the Israeli-Palestinian conflict front and center into our lives, and as a result also into our workplaces. You can't stop employees from talking about current events, especially when those events are so horrific and so impactful on so many of us. Your employees will be talking about what's happening in Israel and Gaza. The key for employers is to make sure those discussions remain calm and respectful.

Join me tomorrow: Tips on Tips webinar (free)

I spent my Saturday night at 8th Day Brewing Company watching my 17-year-old daughter, Norah, play a killer 3-hour set of music. When we sat down at our table, I was giddy to find the latest issue of The New Brewer, the bi-monthly trade magazine of the Brewers Assocation. That issue features my article on how to legally pay tipped employees.

Since access to the magazine and my article are for BA members only, you won't be able to read it if you're not a BA member (unless you happen to wander into a brewery that has it on display).

I can, however, offer you a great alternative. Tomorrow at 4 pm ET, I'm presenting Tips on Tips: How to Legally Pay Your Tipped Workers, a free webinar for the Craft Beer Professionals Fall Virtual Conference. You can watch live on the Craft Beer Professionals Facebook page or on its YouTube channel. 

WIRTW #691: the “football” edition

Today, I'd like to use this space to celebrate the Lake Ridge Academy soccer team. They just completed their best season in 15 years! As a result, they secured the second seed and a first round buy in their state tournament district. And yesterday, they demolished the top seed (and potential third round opponent) 5-0. 

I'd like to say that their success is all because Donovan joined the team this year. But I'm also a realist. They are just a really good group of teens who gelled very well as a team. 

The state tournament starts on Thursday against a team tbd, and I'll be sure to keep everyone updated on the Royals' march to the final four in Columbus.

Finally, for the locals, if you're looking for something to do on a rainy Saturday night, Norah is playing tomorrow from 6-9 at 8th Day Brewing Company in Chagrin Falls. 

Everyone have a great weekend!

Would you fire this employee?

International law firm Winston & Strawn has withdrawn its job offer to an NYU law student who published and distributed inflammatory comments regarding Hamas' recent terrorist attack on Israel.

Here's what this individual wrote:

I want to express, first and foremost, my unwavering and absolute solidarity with Palestinians in their resistance against oppression towards liberation and self-determination. Israel bears full responsibility for this tremendous loss of life. This regime of state-sanctioned violence created the conditions that made resistance necessary. I will not condemn Palestinian resistance.

The firm was swift in its decision:

These comments profoundly conflict with Winston & Strawn's values as a firm. Accordingly, the Firm has rescinded the law student's offer of employment.

“Misgendering” is NOT a thought-crime

The EEOC is NOT trying to make "misgendering" a thought-crime.

The agency recently proposed new Enforcement Guidance on Harassment in the Workplace. Contained with that guidance is the EEOC's legally correct statement that the "intentional and repeated use of a name or pronoun inconsistent with the individual's gender identity" could create a hostile work environment constituting unlawful sexual harassment. That interpretation of Title VII by the EEOC is consistent with judicial opinions dating back nearly a decade.

In response, Andrea Picciotti-Bayer, Director of the Conscience Project, wrote an op-ed on thehill.com taking the EEOC to task for its alleged "thought-policing."

Office lottery pools

More money, more problems. After 36 consecutive drawings without a winner, the next Powerball drawing has a prize of approximately $1.75 billion. Many workplaces will be organizing pools to buy as many chances as possible. With that much money on the line, however, if you’re office pool is lucky enough to win you’ll also probably be unlucky enough to be sued.

Everyone is your friend until you’re looking at nearly two billion dollars; then greed causes those friendships to go out the window and lawyers to be hired.

WIRTW #690: the “Lou-Lou-Lou-Lou-Loula” edition

On the latest episode of The Norah and Dad Show, Norah and I remember Loula, our beloved vizsla who died last week. Different people deal with grief and loss in different ways; for me, talking about her helped me deal with my grief, a lot.

You can listen on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, Castro (my podcast player of choice), on the web, or wherever you get your podcasts.

Rest periods v. Meal periods

Do you know the difference between a break period and a meal period during an employee's work day? It's an important distinction because one does not count as working time, while the other does.

Federal law does not require an employer to grant employees rest or meal periods during the work day. (Some states do require them depending on the total number of hours worked; mine, however, does not.)

Federal law does, however, provide for whether meal and rest breaks are counted as "hours worked." This distinction is important. If time is counted as "hours worked," it goes into the calculation of time worked during the work week for consideration of whether the employee has crossed the 40-hour threshold for overtime pay.

The one thing your business can do right now to cut your potential FLSA liability in half

Q: What is the one thing that your business can do RIGHT NOW to cut your potential FLSA liability in half?

A: Hire an employment lawyer to conduct a wage and hour audit.

Case in point: Hendricks v. Total Quality Logistics.

After 13(!) years of litigation, a federal judge recently ruled that TQL violated the Fair Labor Standards Act and must pay unpaid overtime to thousands of misclassified employees.

The judge also ruled that TQL must pay statutory liquidated damages under the FLSA in an amount to the unpaid overtime because TQL did not establish that it acted in good faith in (mis)classifying its employees.

How bad do wage and violations have to be for a federal judge to order you to sell your business? This bad.

A federal district court judge has ordered the owners and operators of 14 Subway restaurants to pay employees nearly $1 million in back wages and damages and further ordered them to sell or shut down their businesses within 60 days.

The wage and hour violations included:

Loula.

Thursday night, we made the very difficult decision to let our beloved family member, Loula Mae, go.

It was one of the hardest decisions we've ever had to make as a family.

She had too many not good things happening inside of her. After two days of testing the vet had no idea why her red blood cell levels kept dropping and not regenerating. There were also suspected cancer cell from a substantial mass that had suddenly formed under her armpit, which had quickly spread across her chest and down to her belly. The preliminary diagnosis was either cancer bleeding to her body causing the anemia, or the cancer triggering an autoimmune amenia.

Either way, all of the potentials were various degrees of awful. Thus, we made the painful decision to let her go instead of putting her through months of suffering with an uncertain outcome and only a small chance of her having any quality of life in the future.

WIRTW #689: the “134” edition

134. That's how many different available positions Costco offered to Monica Barnett over a nearly nine-month period in an effort to accommodate her knee and wrist injuries.

0. That's how many of the offered positions Monica Barnett applied for or requested placement.

1. That's the number of paragraphs it took the 9th Circuit Court of Appeals to affirm the dismissal of Barnett's failure to reasonably accommodate claim. In the Court's words:

Barnett claims Costco refused to engage in good faith, "forced" her to remain on medical leave, and required her to be "100% healed" before returning to work. These assertions are unsupported by the record. The undisputed record demonstrates that Costco held three job assessment meetings, sent Barnett 134 available positions over more than eight months, and placed Barnett in an optical-assistant position that accommodated her limitations.

Sometimes, no matter how hard you try as an employer to do right by an employee, the employee is going to sue. In those cases, all you hope is that you have your i's dotted and t's crossed, all of your contemporaneously made documentation is in order, and a judge or jury will see the case for what it is and find in your favor.

Employees shouldn’t have to choose between their religion and their job

Is there any legitimate reason a concierge must be clean shaven as a condition of employment? That question is at the center of a new lawsuit the EEOC filed against Blackwell Security Services.

The EEOC alleges that a Blackwell supervisor told a Muslim hiree that it was company policy that all employees be clean shaven. When the employee requested an exemption from the policy to accommodate his religious practice, Blackwell told him to shave his beard or be terminated. To avoid losing his job, the employee complied and shaved his beard. The EEOC charge and its lawsuit followed.

The two main reasons why employers shouldn’t retaliate

Social media giant TikTok is in some legal hot water for its alleged mistreatment of its employees. According to NPR, two Black employees allege that TikTok fired them after they complained to HR about racial discrimination within the company.

WIRTW #688: the “(not) Progressives” edition

Misgendering a transgender employee + forcing him to out himself to his coworkers + passing him over for a promotion + subjecting him to an unwanted office transfer + scrutinizing his medical appointments and other time off + ignoring his three HR complaints = a jury trial for Progressive Insurance on claims of sexual harassment, discrimination, and retaliation.

According to the plaintiff, the first four years of his employment at Progressive were without incident, until he informed his supervisor of his intent to transition from female to male. That's when he alleges the mistreatment began, and continued for the final four years of his employment until he quit.

Transgender people are under attack. This lawsuit is a symptom of a much larger problem in workplaces across our country. Trans employees 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. Otherwise, you just might find yourself at a receiving end of a well-deserved and difficult-to-defend lawsuit. Just ask Progressive Insurance.

The case is John Doe v. Progressive Ins., and you can find the court's summary judgment opinion here.

Facebook Messenger and other alternative communication channels for attendance call-outs

An employee uses Facebook Messenger to notify his supervisor of a medical absence, ignoring the company's policy that requires employees to use a specific call-in line to notify their supervisor of a tardy or absence at least 30 minutes before their shift begins.

Are these absences FMLA-protected excused absences, or unexcused absences subject to termination?

In 2019, Kasey Roberts took six weeks of leave to undergo and recover from an emergency appendectomy, after notifying his supervisor via Facebook Messenger. A few days after returning, Roberts was hospitalized for a post-surgical infection. He again sent his supervisor several Facebook messages notifying of his absences.

After Roberts missed three more weeks of work, his employer fired him for job abandonment, claiming that all of his absences were unexcused since the call-in line, and not Facebook Messenger, was its "usual and customary" system for medical leave notice.

Let’s play FLSA error-spotting

Empire Diner pays its servers a tipped minimum wage of $2.83, the permissible tipped minimum wage in the state in which it's located, Pennsylvania. According to the company's payroll records, each employee earns more than the statutory minimum wage, $7.25 per hour.

So far, so good under the Fair Labor Standards Act. So where did Empire Diner make its FLSA mistakes, according to the 3rd Circuit?

The 10th nominee for the “Worst Employer of 2023” is … the jack(a$$) in the box

The EEOC recently filed a lawsuit against a Jack in the Box restaurant owned and operated by Eastbox LLC, alleging sexual harassment against teen and young adult female employees. 

The allegations are horrific. 

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.