NLRB dismisses James Damore charge against Google—complaints about too much diversity are not protected

It is lawful for an employer to fire an employee who complains that his workplace is too diverse? 

According to the NLRB, the answer, at least under federal labor law, is yes, the termination is legal.

WIRTW #494 (the “affirmative action” edition)

Today, I am pleased to announce that Meyers Roman has expanded our employment-law capabilities by adding Douglas B. Brown, LLC (DBB), a boutique national affirmative action law firm.

I’ll quote my firm’s official statement:

Focusing on management-side affirmative action compliance, DBB will significantly broaden, support and strengthen our Labor & Employment Group to assure our clients’ compliance with the increasingly complex affirmative action and Equal Employment Opportunity regulations for federal contractors and subcontractors. 

DBB has served a wide range of clients in the manufacturing, mining, construction, communications, financial, health care, social services and educational sectors. 

According to Seth Briskin, Managing Partner and Chair of our Labor & Employment Practice group, “the addition of the DBB firm is a real differentiator for Meyers Roman. It gives us the unique ability to offer affirmative action plans and related employment law consulting to our federal contractor clients and DBB’s established client base as well as a growing number of new clients both in Ohio and across the country.”

If you are a federal contractor or subcontractor and need an affirmative action plan drafted or retooled, are engaged in an OFCCP audit, or otherwise need affirmative-action related services, please let me know how we can leverage our new capabilities to help your business.

Here’s what I read this week:

Can you pay your employees in Bitcoin?

“What is Bitcoin? I don’t understand how fake money works.”

These were the words of my 9-year-old last week.

Let me try to help him, and you, out.

Federal judge hands Grubhub a huge victory in groundbreaking gig economy trial

Raef Lawson worked as a restaurant delivery driver for Grubhub for four months in late 2015 and early 2016. He claimed that the company misclassified him as an independent contractor, and owed him overtime for hours he worked over 40 in any workweek.

Last week, in Lawson v. Grubhub [pdf], a California federal judge granted the gig-employer a huge victory by ruling that Lawson and all other similarly situated drivers are independent contractors, and not employees.

Love and work aren’t always peanut butter and chocolate

I listened with great interest to the latest episode of the Hostile Work Environment podcast, which featured as its guest my good friend, Dan Schwartz, talking about the pitfalls of Valentine’s Day at work.

Dan cited CareerBuilder’s annual V-Day survey, which offers some interesting stats about the current state of office romances:

• 22 percent of workers have dated their boss (up 7 percent from last year)
• 31 percent of workers who started dating at work ultimately married each other
• Almost one in ten female workers whose work romance soured left their job
• 41 percent of workers had to keep their romance a secret

Yet, love and work do not always go well together, especially on Valentine’s Day.

What does it mean to be religious?

Lately, I’ve been thinking a lot about religion. Or, rather, what it means to be religious.

I am not religious. Or at least not in the organized sense.

This does not mean that I am an atheist, or a pagan, or a heathen, or whatever other aspersion you’d like to cast upon me.

It just means that I do not believe I need a building and a structure upon which to ascribe my beliefs.

WIRTW #493 (the “Super Bowl” edition)

Today’s goal:

Strive to be the type of employer that engenders this type of loyalty in your employees.


Here’s what I read this week:

Sexual harassment is the hiring scarlet letter

Dear Jon, 

I resigned from my last job amid allegations of sexually inappropriate misconduct. The allegations became public. Even though the women are all liars, no one will hire me. What can I do? 

Sincerely,
Steve W.

This example has played out (sort of) at my alma mater, Case Western Reserve School of Law.

What is your profession doing to combat harassment? Mine appears to doing a lot, as ABA adopts new anti-harassment policy

The policy-making body of the American Bar Association has adopted a formal resolution that urges legal employers to prohibit, prevent, and promptly redress sexual harassment and retaliation claims.

Moreover, to make sure that law-firm leaders are paying close enough attention, Resolution 302 [pdf] also urges that firms adopt measures to ensure that the heads of law firms are informed of the financial settlements of such claims.

The resolution contains the following key measures:

The 4th nominee for the “worst employer of 2018” is … the (in)humane harasser

The 4th nominee for the worst employer of 2018 is the Humane Society of the United States, which last month voted to retain its CEO despite an internal investigation that identified and corroborated three complains of sexual harassment against him.

Happy 25th FMLA … and happy #SuperSickMonday

Last night, my Philadelphia Eagles won the Super Bowl.

Today, the FMLA turns 25.

Over the past 25 years, it is estimated that employees have used the FMLA over 200 million times to take job-protected, unpaid time off work to address their own serious medical condition or care for a family member.

WIRTW #492 (the “step up” edition)

As a dad of a woman (girl) who may someday live in the music industry, I read with great interest the comments of Recording Academy President Neil Portnow, responding to why women were so under-represented as winners at this year’s Grammys.

It has to begin with … women who have the creativity in their hearts and souls, who want to be musicians, who want to be engineers, producers, and want to be part of the industry on the executive level… [They need] to step up because I think they would be welcome. I don’t have personal experience of those kinds of brick walls that you face but I think it’s upon us—us as an industry—to make the welcome mat very obvious, breeding opportunities for all people who want to be creative and paying it forward and creating that next generation of artists.

“Can I bring my peacock to work? It’s for emotional support”

United Airlines has blocked a customer from bringing her “emotional support peacock” on a recent flight.

Truth be told, whether it was a large peacock, or a small parakeet, or a dog, or any other animal labeled “emotional support,” the airline acted well within its rights, whether dealing with a customer or an employee.

The ADA makes no reasonable accommodation allowance for “emotional support animals” of any species and of any size. Period.

Why I’m a management-side lawyer

Every now and again it’s worth pulling a post out of the archives for a rerun.

Today, I look all the way back to April 15, 2008, for one of these reruns, to answer the question—

Why am I a management-side attorney?

Is employee copying of documents protected activity or unlawful stealing?

It’s a situation that plays out all too often. An employee emails a slew of documents to a personal email address, or drags them into a personal Dropbox, or copies them to a stick drive.

Your first instinct is to assume that the employee is engaged in something nefarious, fire the employee, and even sue for misappropriation of trade secrets/confidential information.

But might there be something else going on? What if, instead of competing against you, the employee is preparing to go to battle against you in a discrimination lawsuit?

Does an employee have a right to copy your documents to prepare a discrimination lawsuit?

SNL tackles #MeToo, but what should you do when employees discuss #MeToo at work?

How do you discuss sexual harassment and other sexual misconduct with your friends and colleagues?

Saturday Night Live, in one of its most brilliant sketches in a long time, offers a suggestion.


Or, rather, a suggestion not to have the conversation at all.

WIRTW #491 (the “rage” edition)

Last Friday, Fake ID played to a packed house at The Symposium, an old school rock club in Lakewood, Ohio. And, they absolutely brought down the house. Here’s their set closer, Rage Against the Machine’s “Killing in the Name.”


Why am I posting of video of a bunch of teen and preteen kids playing music? For starters, my daughter is the lead singer, and I think they’re very worthy of sharing.

Also, Fake ID teaches us a couple of employment lessons.

Age is not a valid predictor for success. Fake ID is comprised of two 11 year olds (including Norah) and three 14 year olds. In my opinion, they perform well above their young ages suggest. Don’t judge your employees, or prospective employees, by their age, judge them on their abilities and talents, whether old or young.

Talent is not a substitute for hard work. What impresses me most about how well Fake ID performs isn’t the performance, but all of the time and effort they put in to honing it. Lots of great talent wastes away by laziness and apathy. Your best employees will be the ones that work the hardest, period.

You have one more chance to catch Fake ID live this month, at Sky Zone Highland Heights, tomorrow, January 27, from 7 - 8:30 pm. No cover for the music, regular jumping rates apply.

Here’s what I read this week.

The Wile E. Coyote method of noncompete litigation

Wile E. Coyote. Forever chasing the Roadrunner. Always ending up falling off a cliff or crushed under a giant boulder.

Noncompete litigation. Sometimes you win an injunction. Sometimes the court drops a big boulder on your head.

Employee leave rights and the flu

I’m typing today’s post from my bed, where I convalesce with the flu.

Since I’m at home with the flu, I thought it worthwhile to discuss the leave-of-absence rights of employees with this illness.

Walmart (yes, Walmart) has now done more for worker rights than the U.S. government

Image by Sven via Wikimedia Commons

Earlier this month, Walmart announced sweeping additions to how it compensates its employees.