Supreme Court eases path for employees to sue employers for discriminatory job transfers

In a unanimous decision, the Supreme Court held that an employee alleging a discriminatory job transfer need not show the suffering of a "materially significant" disadvantage. Instead, the employee need only show "some injury respecting her employment terms or conditions."

The case involved a police sergeant forced to transfer out of her position in the department's intelligence division. The employer claimed that she could not establish a Title VII volitation because the transfer did not result in a diminution of her pay. 

EEOC makes is clear that the Pregnant Workers Fairness Act covers unpaid time off for abortions

From this point forward, if an employee needs an unpaid leave of absence to obtain and recover from an abortion, you better give it her. I realize this topic is divisive, but this issue is no longer subject to debate.

Earlier this week, the EEOC published its final regulations implementing the Pregnant Workers Fairness Act. Pre-publication, agency considered 94,000 comments urging it either to exclude or include "abortion" from the Act's definition of "pregnancy, childbirth, or related medical conditions." The EEOC chose the latter. Here's why.

One bourbon, one union election, and one Cemex bargaining order

One bourbon, one union election, and one bargaining order … is what an NLRB ALJ told Woodford Reserve Distillery last week. The judge held that the distillery violated federal labor law by undermining its employees' unionization efforts and ordered the distillery to bargain with its employees as their remedy.

WIRTW #713: the ‘lounging around' edition

Next week I'll be at the Craft Brewers Conference at the Venetian in Las Vegas — 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 on Sunday as part of the THRIVE pre-conference workshop discussing how to craft a harassment-free craft brewery.

On the networking front, 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 on April 22 and the morning of the 23rd. (The lounge is open through the 24th.)

Our lounge will be located at the top of the escalators leading into the main exhibit hall at the Venetian. There will be beer available all around 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 my speaking session or just happen to run into me at the Conference or at any of the events around Las Vegas. I will happily share a beer with you and toast our industry.

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

Don't be an ostrich with harassment

"If I ignore harassment, it will go away" … is the 100% incorrect response to harassment happening in your workplace. It's also a non-refundable first-class ticket to a nasty lawsuit.

An employer CANNOT ostrich workplace protected class harassment. "Employer" includes managers and supervisors. If someone in a position of authority witnesses or otherwise learns of protected class harassment in the workplace, the business has the same legal obligations as if the victim had complained.

Must you accommodation an employee's religion not to attend DEI training? Believe it or not, it might depend on the training.

"Your respectful workplace training is against my religion; count me out."

That's what one employee told his employer when it tried to compel him to attend its mandatory training about treating all with courtesy and respect.

When the employee learned that one module of the training would include LGBTQI+ issues, he explained to his employer, "This subject matter contradicts my sincerely held religious beliefs." He advised that he would excuse himself during that portion of the training.

WIRTW #712: the ‘OH-WOOO’ edition

I will officially have a college student in a little over four months. The "if" was never in doubt, but there "where" definitely was … at least until a couple of weeks ago.

Norah chose Ohio Wesleyan University — OWU, or, as it's affectionately called, OH-WOOO. She'll be a Battling Bishop.

"Fit" might be a four-letter word in the employment law space, as employers often use it as a pretext for discrimination. But for Norah's college choice, it was all about fit.

✅ Small liberal arts school

✅ Small class sizes
✅ Within a shortish drive from home
✅ The ability to double major in early childhood education and French
✅ Opportunities to study abroad
✅ A cute campus with off-campus amenities within walking distance

OWU checked all of these boxes. It also didn't hurt that OWU awarded her a Wesleyan Scholarship (one of its highest academic awards) and accepted her into both its Honor Program and Global Scholars Program.

To listen to Norah talk about the "why" of her college choice and the process she used to make her decision, tune in to this week's episode of The Norah and Dad Show, which you'll find on Apple Podcasts, Spotify, Amazon Music, Overcast, via your browser, and any everywhere else you get your podcasts

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

The 5th nominee for the Worst Employer of 2024 is … the abhorrent optometrist

"The only thing that changed from when I left for maternity leave to when I was terminated was the fact that I had a baby. It sent a clear message they didn't value me as a person, as a new mom. It was shocking."

Those are the words of Dr. Alana Curatola, who is now suing her former employer, Northwest Eye Surgeons, for discrimination.

YouTuber faces legal challenge against his overly broad severance agreement

"Employer and Employee agree to keep the existence and terms of this Agreement confidential and to not disclose its provisions to anyone.… Employer and Employee further agree not to take actions or make statements, written or oral, that would disparage or otherwise defame the goodwill or reputation of the other."

Those are the confidentiality and non-disparagement terms of the severance agreement that Steven Crowder, a popular right-wing YouTuber, provided to Jared Mittelo, his producer.

And they are why Mittelo has filed an unfair labor practice charge with the NLRB.

WIRTW #712: the 'lunatics are in my hall' edition

On April 8, Cleveland will be in the path of totality for a solar eclipse.

One hasn't happened here since 1806; the next one won't be until 2444.

People are losing their minds. Businesses and schools will be closed. Hotels have been fully booked for a year or more. Festivals are occurring. Bars and restaurants are holding special events. Traffic is predicted to be a mess for miles and miles around. All for a few minutes of the moon blocking out the sun, which you can't see without special glasses to keep you from going blind.

You know what? I couldn't care less. It's a hassle, not a celebration.  I'm an eclipse scrooge.

What about you? Are you "Team Eclipse" or "Team Meh"?

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

If your company just agreed to pay $2 million to settle a horrific sexual harassment lawsuit, maybe don’t trash the plaintiff on social media

If your company just agreed to pay $2 million to settle a lawsuit alleging horrific workplace sexual abuse and other sexual harassment, maybe it's not the best idea to trash the plaintiff on social media.

Last week, I nominated National Raisin for the Worst Employe of 2024, based on the allegations of a lawsuit it just settled with the EEOC. Those allegations consisted of widespread sexual abuse perpetrated by a male supervisor. To make matters worse, the lawsuit also alleged that HR did nothing when employees complained.

WIRTW #711: the ‘podcast’ edition

"Jon, tell us about your law firm and your legal practice."

"I'm so glad you asked, Lorain County Business Insights Podcast."

I recently sat down with host Ed Skimin to discuss that and more. We talked about Wickens Herzer Panza's comprehensive legal services for small to mid-sized businesses, our global reach through Mackrell International, the scary implications of artificial intelligence, and the unique challenges of representing craft breweries.

Listen via Apple Podcasts, Spotify, Google Podcasts, Amazon Music, on the web, or wherever else you get your podcasts.

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Here's what I read (and listened to) this week that you should, too.

Cheers to the CHEERS Act! 🍻

If today's dysfunctionally fractured Congress can agree on anything on a bipartisan basis, it must be a good idea.

Raise your glass to the Creating Hospitality Economic Enhancement for Restaurants and Servers (CHEERS) Act, which Reps. Darin LaHood (R) and Steven Horsford (D) recently introduced.

The CHEERS Act would provide tax incentives for bars, restaurants and entertainment venues to install energy-efficient keg and tap systems. The goal is to help stabilize and revitalize hospitality establishments, which are still struggling years after the pandemic.

The 4th nominee for the Worst Employer of 2024 is … the repulsive raisin-maker

National Raisin has agreed to pay $2 million to settle an EEOC sexual harassment and retaliation lawsuit that the agency filed on behalf of a class of female agricultural workers, many of whom only speak Spanish.

According to the EEOC's lawsuit, National Raisin subjected its female fruit sorters to "widespread" sexual harassment perpetrated by a male supervisor, which included:

Does DEI training create a hostile work environment?

"You can't force me to sit through DEI training! I'm White. It creates a racially hostile work environment."

That's what one employee recently argued in a racial harassment lawsuit he filed against his employer, a state department of corrections, which had mandated DEI training for all employees.

The 10th Circuit Court of Appeals affirmed the dismissal of this lawsuit, concluding that this training could not constitute a hostile work environment because it only occurred one and lacked any race-based ridicule or insults.

But all is not roses for employers and their efforts to offer DEI training to better their workplaces. 

It’s past time to self-regulate your use of noncompete agreements before the government does it for you

Boston Beer Co., the brewer of Sam Adams and other craft beverages, is taking heat for its overuse of noncompete agreements. In a recent article, the Boston Globe cites examples of several former lower-level Boston Beer employees forced out of the industry they love because of the noncompete agreements their former employer forced them to sign at their time of hire.

Legally speaking, to be enforceable a post-employment restrictive covenant must be narrowly tailored by time, geography, and a reasonable business interest worthy of protection. Yet, like the Boston Beer example, all too often employers require many too many employees to sign overly broad and overly restrictive agreements. It's bullying and a scare tactic. It's also legally unsupportable. And it's also why the federal government and many states are looking at regulatory and legislative solutions to limit their use.

WIRTW #710: the “if it ain’t broke…” edition

If you have a child applying for college this year, you know the pain that we are currently feeling. This year, Congress decided to change the process to apply for federal financial aid. The changes to the FAFSA ("Free Application for Federal Student Aid") were supposed to make applying for financial aid easier. Instead, it has caused delays, uncertainty, and stress. 

Under the former system, students would have already received their offer letters from the colleges and universities to which they had been admitted, including the full breakdown of all financial aid and the net cost of attendance. That "net cost" is what enables us to make apples-to-apples comparisons of schools and to help our high-school seniors make an informed decision about the best academic, social, and financial choice. 

Instead, the Department of Education has struggled to process the information it has received under this new process. As a result, the DOE has not yet even started providing FAFSA information to colleges and universities, which, in turn, are scrambling to assure students that they will know their financial aid packages and cost of attendance before freshman orientation.

Congress, we know how dysfunctional you have become. You can barely agree on what should be your most core function — legislation to keep our government open — let alone meeting our nation's more pressing needs such as funding for Ukraine, immigration reform, or protecting women's productive rights. Then again, given how you've botched what should be the lowest hanging of fruit when you actually do something, I'm not sure you're actually qualified to govern anything.

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

 

It’s long past time to Ctrl-Alt-Del the FLSA

The Fair Labor Standard Act is not a good law because employers have zero hope in complying with it.

I know this fact is true because I just read Bradford v. Team Pizza. In that case, the 6th Circuit rejected both the employer's and the plaintiffs' interpretation of the FLSA and punted the case back to the district court to interpret the statute instead.

Spoliation is BAD

Pro tip: it's really, REALLY bad to destroy evidence in your case.

Case in point: Jones v. Riot Hospitality Group, which the 9th Circuit just decided.

President Biden’s proposed 2025 federal budget offers a lot for employers to chew on

If you want to learn about a government's priorities, trace the money. 

President Biden's proposed federal budget for FY 2025 contains significant funding that would impact the workplace.

WIRTW #709: the “opener” edition

My home, and this Friday space, have been consumed by music for the past few weeks. The 27th and final Tri-C High School Rock Off has come to a close. Norah played a killer set of 2 originals — Potential Spam (which Cleveland.com reporter Malcolm X Abram called "a cool near-shoegaze original") and Boys Like You — and 2 covers — a PG-rated You Oughta Know that included an Alanis singalong that filled the Rock Hall's glass pyramid and Jefferson Airplane's White Rabbit. I loved every second of watching her completely own that massive stage and crowd. You can tell that she's living her best life. Norah did not win or place in the top 3, but that's not what truly matters, is it?

You can watch her full set here.

The Rock Off might be over, but Norah's 2024 of music is just getting started. There are gigs at venues all over town, a music festival appearance in August, and, on May 19, she'll be the opening act for Rhett Miller of the Old 97's when he plays at the Music Box Supper Club. Given that Norah first sang with Rhett 10 years ago, it will be a fitting full-circle moment to cap her K–12 years less than 2 weeks before graduation. Tickets are on sale now. 

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

I ❤️ being a lawyer

I ❤️ being a lawyer. It presents something new and different each day, with each day offering an opportunity to learn.

For example, yesterday I read the 6th Circuit’s decision in Jones v. Producers Service Corp., which asked this question: "Under § 207(f) of the FLSA, when do an employee's job duties 'necessitate' irregular hours?"

“DEI” is not a 4-letter word

"DEI" is not a 4-letter word … no matter what some people want you to believe.

Companies such as Sherwin-Williams are scrapping their internal use of the words "Diversity," "Equity," and "Inclusion," and are replacing them with words such as "Belonging" and "Culture."

WIRTW #708: the “boys like you” edition

Tomorrow night, I'll be at the Rock & Roll Hall of Fame trying not to be a nervous wreck during the finals of the Tri-C High School Rock Off. The reality, however, is that no matter the result's, Norah has already won. 

She advanced to the finals, joining 11 of the best high school rock bands in the country in one the premium events for high school musicians nationwide.

She got great, constructive feedback from the panel of music industry people that judged her semifinal round, and will do so again in the finals.

She's received some great recognition and press (including recording an episode for the Rockin' the Suburbs podcast that aired earlier this week). 

And she went into the studio at Tri-C to record a song for the Rock Off's compilation album. "Boys Like You" — a jangly piece of acoustic power pop that will get stuck in your head — released today. You can listen to it here.

Rock Off tickets are still available for purchase (code: norah), but don't wait too long. This event is always a sell-out. 

If you're attending, Norah plays at 7:10 pm. If you're not attending but want to know where else you can see her play, click here for a full list of her gigs. (Pay close attention to the one on May 19 … it's a biggie.)

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

When dealing with the FLSA, “administrative” may not mean what you think it means

It's really unfortunate that when Congress, in 1938, enacted the Fair Labor Standards Act it chose the label "administrative" for the law's broadest white-collar overtime exemption. That one word has caused more misunderstanding, confusion, litigation, and legal fees than any other word in the FLSA.

"Administrative" does not mean any employee who performs office or other non-manual work. Instead, it means any employee who earns a minimum salary of $684 per week AND who performs office or other non-manual work for which the employee's primary duty: (i) is directly related to the management or general business operations of the employer or the employer's customers; and (ii) includes the exercise of discretion and independent judgment with respect to matters of significance.

These issues were just front and center in Blackstone v. Dearborn Life Ins. Co.

IVF discrimination = sex discrimniation

With in vitro fertilization all over the news for the past week, it's time for this important public service announcement — IVF discrimination = sex discrimination.

Courts have long held that Title VII's definition of "sex" (as expanded by the Pregnancy Discrimination Act) unequivocally includes infertility treatments.

WIRTW #707: the “mojo” edition

One, two, three, four
There's a plague on the planet
And they went to law school
A bunch of hornswogglers
Treat us like fools
Know who I'm talkin' about
Let me hear you shout

Destroy all lawyers

Destroy all lawyers

Bunch of evil weasel poseurs

Destroy all lawyers

Watch them push them papers

And bend them laws

Will the chump with the most money

Buy them all?

Grab them by their tails

Spit in their eyes

Well they charge you by the minute

While we get paid by the hour

What I want to know

Is how they steal all this power?

[Chorus]

They got, they got their own bar

Where they drink pints of greed

Let's spay and neuter 'em

So that they can't breed

So let us

Is at the bottom of the sea

Well they're not even evil

Yeah, they're worse than the devil

Gonna blow up the planet

Charge God double

[Chorus] 

R.I.P. Mojo Nixon. 

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

Pumping up employee lactation rights

Employers, hear to me now and believe me later — it is unacceptable to force a lactating employee to pump her breast milk in an open stockroom corner or in an open office.

That's precisely, however, what two McDonald's employees allege happened to them in two different stores.

Bankrupcy, labor unions, and remaining union free

Fair State Brewing, one the nation's first unionized craft breweries, just filed for Chapter 11 bankruptcy protection.

Meanwhile and elsewhere, Aslin Beer Co. just said that it will voluntarily recognize the union petition filed by a group of its taproom employees to join the SEIU.

Evan Sallee, Fair State's founder and CEO, tells Eater than its union has nothing whatsoever to do with the bankruptcy filing.

WIRTW #706: the “final exam” edition

I left y'all with quite the cliffhanger last Friday. How would Norah do in her semifinal round at the Tri-C High School Rock Off? "No matter what happens tomorrow night, I'm so proud of her." That's what I wrote last week. Of course, however, I really wanted her to advance to the Final Exam. What parent wouldn't?

In the semifinals, the acts draft their performance slot for the night, with the draft order set by ticket sales. Norah ended up drafting 5th. After saying for weeks that she did not want to close the show, she then chose to close the show. The 10th band out of 10. A singer-songwriter choosing to take the stage in a rock 'n' roll competition after 3-plus hours of loud music played by driving rock bands. "A baller move," we told her when she texted us from the Rock Hall. Her response: "Go big or go home!"

Well, she went big. She played the best 15-minutes of music of her life and breezed into the Final Exam. Choosing to close was absolutely the right choice for her to make, especially when your last song is her chill-inducing version of Jefferson Airplane's "White Rabbit." You can watch her full set here. 

Tickets for the Final Exam are on sale now. The event is the Rock & Roll Hall of Fame on March 2 at 6 pm. Your $20 ticket ($15 for students) not only gets you a few hours of music from some of the best high school rock bands (and high school singer-songwriters) in the country, but also full admission to the Rock Hall during the event. You can buy your tickets here (code: norah). I'd love to see you there, and Norah would love your support.

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

Baning salary discussion bans

🛑 Employers, for the love of all that is holy, STOP BANNING EMPLOYEES FROM DISCUSSING THEIR WAGES!!! 🛑

A supervisor of subsidiary of Duke University is accused of doing just that, and now the employer is in hot water with the National Labor Relations Board.

According to the just-filed NLRB complaint, the supervisor allegedly instructed workers during a meeting "not to discuss their salaries." When one of those employees later raised "concerns about employees' salaries and equity in pay," they were fired.

Remote work as a reasonable accommodation

A former UCLA employee has sued the university, claiming that if fired him in retaliation for requesting to continue to work from home after its "work from home" order ended.

According to his complaint, the 23-year employee, who last worked as a mechanic in the physical sciences machine shop, suffers from disabilities that affect his arms and hands. The lawsuit alleges that his supervisor denied his request to continue working from home after Covid work from home orders ended, despite most other employees continuing to work remotely. After the university later laid him off, he sued.

Courts are generally in agreement on two things related to remote work as a reasonable accommodation: 1) regular, in-person work is an essential function of most jobs; and 2) remote work as a reasonable accommodation is a highly fact-specific inquiry.

Ending gender bias in dress codes

During the recent Super Bowl halftime show, Usher took off his shirt and everyone oohed and aahed over his performance. Twenty years ago, Janet Jackson's breast was accidentally exposed during her halftime performance and the world stopped to nearly ruin her career over a wardrobe malfunction.

We need to have a serious conversation about sex-based stereotypes, double standards, and workplace dress code.

Here are 7 tips to draft a non-discriminatory, gender-neutral dress code for your workplace:

Ending the “ism” of ageism

"Ageism is really one of the last acceptable 'isms' that society tolerates," says AARP senior advisor Heather Tinsley-Fix.

The numbers back her up. According to a recent AARP report, two-thirds of adults over 50 believe older workers face age discrimination in the workplace, and 90% of that group believe ageism is commonplace.

How do we best combat ageism and age discrimination in our workplaces? Here are 6 suggestions.

WIRTW #705: the “3.33 percent” edition

I believe that it's important to celebrate our victories, not just in our careers, but also in our personal lives.

Tomorrow night, my daughter will stand on stage at the Rock & Roll Hall of Fame in front of 1,000-plus people and play a 15-minute of set of original music and covers. It will be just Norah, her voice, and her guitar. This will be her sixth (and final) time playing the High School Rock Off. She participated for several years as a School of Rock exhibition. Then, in 2020, she entered in two separate bands and took one to the finals.

In total, Norah has played the Rock Hall's stage more than every other artist who is inducted in the Rock Hall combined. At the age of 17, she's a seasoned veteran of the local music scene.

Which is why I was surprised when, in the car on the way to school this morning, Norah told me that she's a little nervous about tomorrow night. "I've never played in front of that many people solo," she said.

No matter what happens tomorrow night, I'm so proud of her. It takes guts anytime you get on stage and perform. It takes a ton of guts to do it solo, without the support of loud rock band backing you, and even more so when you're sharing your inner-most thoughts through your own songs.

It doesn't matter what the judges say tomorrow night, Norah has already won.

(From The Chronicle-Telegram's Rock-Off preview)

If you're planning on attending the Rock Off and don't yet have your ticket, they are on sale here (code: norah). It's the best deal in town for a Saturday night — $20 ($15 for students) for performances by 10 bands plus a full admission to the Rock Hall.

If you can't make the event but want a taste of what you'll miss, last weekend Norah recorded a "tiny-desk style" session. Thanks to Jeff Koteles of Banzai Sound for offering his space and providing the audio mix, and to Digital FX Media for recording the video and supplying the finished product, which you can watch here.

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

The 3rd nominee for the Worst Employer of 2024 is … the supersized sex offender

A McDonald's franchisee has agreed to pay $4.35 million to settle claims brought by a 14-year-old worker raped by a manager.

According to the now settled lawsuit, the franchisee, Rice Enterprises, knew that its manager, Walter Garner, was sexually harassing child employees before Garner raped the plaintiff. Garner, already a registered sex offender during his employment, later pleaded guilty to criminal charges stemming from the rape and is now in prison.

The allegations are as bad as you might think. 

A DEI smackdown

It's a DEI heavyweight battle of epic proportions that played out of X over the past week.

In the blue corner, hailing from Big D, the owner of the Dallas Mavericks and serial entrepreneur Mark Cuban: 

I've never hired anyone based exclusively on race, gender, religion. I only ever hire the person that will put my business in the best position to succeed. And yes, race and gender can be part of the equation. I view diversity as a competitive advantage.

And in the red corner, hailing from our nation's capital, EEOC Commissioner Andrea Lucas: 

Unfortunately you’re dead wrong on black-letter Title VII law. As a general rule, race/sex can't even be a "motivating factor" — nor a plus factor, tie-breaker, or tipping point.… This isn't an opinion; reasonable minds can't disagree on this point. It's the plain text of Title VII.

WIRTW #704: the “backyard” edition

Live Nation and the Rock & Roll Hall of Fame announced that this year's Rock Off will be the final Rock Off, at least sponsored by Live Nation and held at the Rock Hall. Barry Gabel, the senior vice president of marketing and sponsorship sales at Live Nation and the Rock Off's creator and biggest champion, is pulling the plug after this year's event because of staffing issues. He told Cleveland Magazine, however, that there's hope that the Rock Off will continue in some form in 2025 and beyond.

We're getting tons of calls from so many different venues and people that don't want to see this end, and while I'm not really available to discuss if there can be something that will follow after this year — it most probably will not be with Live Nation — but who knows. There are just too many great venues around town and too many great local clubs and passionate music people that don't want to see the Rock Off end. So we'll see what happens.

Well, Norah and I have an idea to save the Tri-C High School Rock Off in years to come. The Norah and Dad Show Rock Off!

Tickets for this year's Rock Off are available here (checkout code: NORAH). Norah performs next Saturday, Feb. 10.

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

Whether you like it or not, it’s illegal to discriminate against transgender employees

“Do you have female parts?”

“You’re not a real man.”
“If I just say ‘she’, that’s what she is.”

Those are among the allegations that the EEOC made against T.C. Wheelers Bar & Pizzeria on behalf of Quinn Gambino, a transgender man the restaurant employed as a cook. Mr. Gambino complained to management about the harassment, but it continued unabated.

The 2nd nominee for the Worst Employer of 2024 is … the stone-cold stunner

I've never before had a repeat Worst Employer nominee. But never before has there been an employer like Vince McMahon.

Two years ago, I nominated the former Chairman of the WWE for allegations that he paid $3 million in hush money to a terminated, down on her luck paralegal, Janel Grant, with whom he then had an affair. Now, however, the full nature of the paralegal's allegations has come to light, and their sheer depravity require that we re-nominate Vince to this year's list.

Grant claims that she was subjected to "acts of extreme cruelty and degradation" that caused her to "become numb to reality in order to survive the horrific encounters." 

WIRTW #703: the “guitar” edition

Did you know that in addition to being an employment lawyer and a craft-beer lawyer, I’m also a podcaster?

A couple of years ago my daughter and I started a podcast together. While episodes have become more sporadic lately, The Norah and Dad Show is still very much a thing.

We just dropped a brand-new episode — "Rock 'n' Roll High School" — in which we discuss Norah's upcoming gig on Feb. 10 at the 27th annual (and final) Tri-C High School Rock Off at the Rock and Roll Hall of Fame. (Tickets here; use code NORAH.)

We reminisce about Norah's past appearances at the event and lament the end of the Rock Off as an annual event. Norah also shares a story about buying a new guitar, which she'll be showcasing from the Rock Off stage.

You'll find the episode on Apple Podcasts, Spotify, Amazon Music, Google Podcasts, Overcast, on the web, or wherever else you get your podcasts.

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

Join me at this year’s Craft Brewers Conference

If you google “brewery harassment” you’ll polish off an entire six-pack before you finish reading all of the horror stories.

 

🤮 “Breweries named in wave of sexual harassment claims; CEO steps down.”

🤮 “Brewery ownership group ‘steps back’ after sexual harassment claims.”

🤮 “’This behavior should not be endorsed or tolerated’: harassment allegations explored as brewery reportedly closes.”

🤮 “Couple who helped start major brewery accuse owner of sexual harassment.”

🤮 “Brewery founder steps away from operations amid allegations of sexism and racism.”

🤮 “Findings of investigation into toxic brewery workplace are ‘troubling and heartbreaking.’”

And on … and on … and on. It’s an epidemic in our craft beer industry.

Which is precisely why I am so excited to be returning to this year’s Craft Brewers Conference to present, “Crafting a Harassment-Free Craft Brewery.”

Just because something isn’t “illegal” doesn’t mean it’s acceptable

“This is very basic, elementary communication. This has nothing to do with training or understanding, this is daily required functioning.”

That’s just part of an email that a law firm partner sent to a Black associate. In her recently-filed lawsuit, she alleges that the firm terminated her in retaliation for complaining to HR that she believed that email was racially motivated.

In response to her internal complaint, HR told her that its investigation revealed that while the email was “inappropriate,” it was not racist because the partner treated everyone the same way. Thus, he was not singling her out because of her race.

These 6 steps will help keep you out of sexual harassment hot water

A teenage, female restaurant employee bends over to pick something up and a male co-worker snaps a photo of her buttocks and then shares it with his coworkers. She reports the misconduct conduct to her manager and noted “that it made her feel uncomfortable.” The company investigates, and even though it does not find the photo on the co-workers, it still fires him six days later for myriad issues with his employment.

The complaining employee then sues for sexual harassment, alleging that the taking and sharing of the photo constituted a hostile work environment. The court disagreed: “Johnson alleges two isolated incidents—Shawn took a picture of her buttocks and showed it to her coworkers. Although Shawn’s conduct was rude and boorish, his actions fall well short of conduct so severe as to alter or change the terms of her working conditions.”

WIRTW #702: the “conference” edition

I don't just go to beer conferences to drink beer. I promise. I also go to speak and share my knowledge about the legal issues that impact craft breweries.

This week, I've been at the Ohio Craft Brewers Conference in Toledo. Yes, I drank some beer. But I also spoke, not once, but twice.

Yesterday, I spoke on avoiding the top 10 legal mistakes made by craft breweries, and on current industry and legal trends impacting DEI.

It was a great conference with wonderful people and networking, a lot of learning and knowledge … and, yes, some beer. 🍻

A huge thank you to Mary MacDonald and the entire Ohio Craft Brewers Association team for a fantastic event. Let's do it again in Columbus next year!

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

Hiring undocumented workers

"Illegal immigrant co-worker got fired for asking about her check." 

That's the headline on Reddit.

Here's the rest of the post: 

"I have a co-worker who doesn't speak English at all so I've always communicated with her through google translate. A week ago, she asked me if I had gotten paid yet and told me that she hasn't seen a penny of her check despite working 50 hours a week since late November. I talked to my manager about it and my manager told me that she would send the check to her later. My co-worker texted me a few days ago and told me that she was fired for being an illegal immigrant and that she won't be paid because of it."

WIRTW #701: the “last dance” edition

My daughter, Norah, has been chosen as one of 30 acts to compete in the 2024 Tri-C High School Rock Off at the Rock & Roll Hall of Fame.

Norah (who performs as norah marie) takes the Rock Hall stage on Feb. 10 as part of the second of three semifinal rounds. Four acts from each round will advance to the Final Exam on Mar. 2, where a panel of industry judges will crown the "Best Band in the Land."

This year's winner will be the last "Best Band in the Land," as Live Nation has announced that this year's High School Rock Off will be the final High School Rock Off. This news saddens me, as it's such a unique event for Cleveland and a great opportunity for the youngest members of our music community. Having attended the Rock Off for years, it's always a great time showcasing a ton of talent and great music.

The Tri-C High School Rock Off is one of biggest competitions in the country for high school rock musicians. We're so lucky to have held it for so many years. This year's prizes for the winning act include the opportunity to perform at the 2024 Rock and Roll Hall of Fame Induction Ceremony. It's a big deal.

Norah performs on Feb. 10. Tickets are digital-only and available for purchase via the Rock Hall website, here. At checkout, use the code NORAH. Each ticket includes a full Rock Hall admission during the event.

We'd love to see you there.

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

The 1st nominee for the Worst Employer of 2024 is … the S&M CEO

I've seen a lot of strange stuff in my 26-plus-year career as an attorney for employers. But this story takes the cake … and it might just run away with the title of the Worst Employer of 2024 when the votes are counted at year's end.

I present to you … the "Slave Contract."

An employee fired by software company Tradeshift recently filed a lawsuit alleging that the company's former CEO required her to sign a "Slave Contract" as a condition of her employment and then subjected her to years of sexual abuse, subjugation, and violence.

8 ways to spot a crook inside your business

Between Sept. 2021 and Oct. 2022, Lyle Bigelow, the now-former COO of 1487 Brewery, embezzled approximately $200,000 from his employer. How? He created fake employees in the brewery's payroll system and directed their illegitimate paychecks to his personal bank accounts.

Bigelow was recently sentenced to 30 months in prison and ordered to pay more than $100,000 in restitution to the brewery (the amount not covered by its insurance).

Do you know how to spot an employee who is potentially stealing from your business? Here are 8 possible warning signs that suggest possible internal theft and/or an attempt to cover it up.

Pro-employee vs. Pro-union

"You can't be pro-employee and anti-union."

"If you're pro-employee you should also be pro-union."

Each of these two themes ran through the more than 1,000 comments posted to last week's viral LinkedIn post on Costco's union organizing.

Let me be as clear as I can be. There is absolutely nothing inconsistent about an employer being both pro-employee AND anti-union.

WIRTW #700: the “Rock Off” edition

For the past 26 years, Live Nation Entertained has crowned "The Best Band in the Land" at the Tri-C High School Rock Off. This year is no exception. My daughter, Norah, will be competing on Feb. 10 at the Rock & Roll Hall of Fame in one of three semi-final rounds to determine who advances to the Final Exam on Mar. 2.

We've attended the event for years, first when Norah performed in an exhibition as part of the School of Rock Jr. Headliners, and then four years ago when her former band advanced to the Final Exam. This year, Norah will be performing as a solo artist.  

It's always an amazing night of live music. Additionally, your ticket (which I think will only cost $10) comes with a full Rock Hall admission for the night at a significant discount from its normal $35 price tag. That's what I call a win-win.

Tickets are not yet available, but I'll be sharing the link when they go on sale.

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

THIS is how you respond to a group of employees organizing and forming a labor union

Competitive salary. Excellent benefits. Great support from management. Collaborative environment. Those are a few of the glowing terms reviewers use to describe Costco on Glassdoor. They are also what help the warehouse club earn a regular spot on Glassdoor's "Top 100 Places to Work" annual report.

Why, then, did a group of Costco workers at one of its stores "overwhelmingly" vote to unionize, making it the Teamsters' first organizing victory at the big-box wholesale retailer in more than 20 years?

Discussing a couple of pay deductions for service-industry employees

Consider the following two policies, which restaurants and bars have implemented to save a few nickels against their tight margins:  

“Effective Jan. 1, we will begin implementing a tip refund for credit card processing fees for all gratuities left on a customer’s credit card; 2.5% will be deducted from your final check-out for each such gratuity paid.” 

 -and- 

“The full value of the check from which a patron flees the facility (‘dines and dashes’) will be deducted from the server’s paycheck.”  

Each of these policies is 100% legal under federal wage and hour laws. (Check your state laws, however, which may differ.) 

’Twas the Employment Law Night Before Christmas (2023 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2023.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone on January 2, 2024, with new content, including a fresh batch of Worst Employer nominees, to kick off the new year.