What’s a hostile work environment? You’ll know it when you see it.

“I know it when I see it.” These are the famous words of Justice Potter Stewart defining legal obscenity in his concurring opinion in Jacobellis v. Ohio (1964).

I feel the same way about a hostile work environment. For a hostile work environment to be actionable, it must (among other factors) be objectivity hostile. What does this mean? It’s hard to define, but I know it when I see it.

How long of a leash must you give an employee before firing?

When a client calls me to ask for advice about firing an employee, the first question I always ask is, “What does the employee’s file look like?” I want to know if there exists a documented history of performance issues to justify the termination, and whether said issues are known and understood by the employee.

I ask these questions for two reasons:

1. Can the employer objectively prove the misconduct to a judge or jury? Fact-finders want to see documentation, and if it’s lacking, they are more likely to believe that the misconduct was not bad enough to warrant documentation, or worse, that it did not occur. In either case, a judge or jury reaching this conclusion is bad news for an employer defending the termination in a lawsuit.


2. Surprises cause bad feelings, which lead to lawsuits. If an employee has notice of the reasons causing the discharge, the employee is much less likely to sue. Sandbagged employees become angry ex-employees. You do not want angry ex-employees going to lawyers, especially when you lack the documentation to support the termination.

So what does quality documentation to support a termination look like? Consider Anderson v. Greater Cleveland Regional Transit Authority (N.D. Ohio May 29, 2019).

Do your employees understand that social media is a very public conversation?

“It’s 2019. All of our employees have been on Facebook for years. Many are also on Twitter, and Instagram, and … We don’t need to do any social media training.”

If you’ve had these thoughts or internal conversations, allow me to offer Exhibit 1 as to why you are wrong.

Texas district votes to fire teacher who tried to report

undocumented students to Trump on Twitter

WIRTW #556 (the “comfort zone” edition)

My comfort zone is most definitely not at a biker rally. Yet, that's where I found myself last Saturday afternoon. The things we do for our kids. 🤷‍♂️

Click here for Fake ID’s killer set opener, War Pigs, by Black Sabbath, recorded at the Ohio Bike Week Block Party.

Needless to say, I’m pretty darn proud of my (not so) little girl.

Your next chance to see them live is June 15 at Crocker Park, in Westlake, Ohio. Details here for this free show.

Here’s what I read this week.

An obituary for employment at-will

Over at her employee-rights blog, Screw You Guys, I’m Going Home, attorney Donna Ballman asks, “Is is time to terminate at-will employment laws?“

Well, Donna, there’s no need to terminate these laws; they are already dead.

SCOTUS decides whether Title VII’s charge-filing precondition to suit is jurisdictional or non-jurisdictional

If the U.S. Supreme Court decided an employment case, I’m contractually obligated to blog about it. Yet, Ford Bend County, Texas v. Davis, which it decided earlier this week, is of little practical import.

To file a private employment discrimination lawsuit under one of the federal employment discrimination statutes, a plaintiff must first exhaust his or her remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission.

What happens, however, if the employee skips over the EEOC and proceeds straight to court? Does that court even have jurisdiction over the claim, or is the omitted EEOC filing merely an affirmative defense for an employer to raise in seeking dismissal of the lawsuit?

Proposed law wants to convert “anti-vaxxer” into a protected class

With a couple of important exceptions, an employer can require that employees be up to date on their vaccinations.

The exceptions?

     1/ An employee with an ADA disability that prevents him or her from receiving a vaccine may be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

     2/ An employee with a sincerely held religious belief, practice, or observance that prevents him or her from receiving a vaccine may also be entitled to an exemption from a mandatory vaccination requirement as a reasonable accommodation.

Thorough internal investigation saves employer from discrimination claim

A bank fires two female employees for violating its vault-access policy. They claim sex discrimination, pointing their fingers squarely at three male employees who they say violated the same policy, but only received performance counseling.

Open and shut discrimination case? Not quite.

WIRTW #555 (the “you get a shirt, and you get a shirt…” edition)

I ❤️ that my daughter’s band is now selling its own merch.

Here’s what I read this week.

The top 10 wage and hour mistakes businesses keep making

No law causes employers more compliance headaches than the Fair Labor Standards Act. On its face it’s simple—pay employees no less than a minimum wage of $7.25 per hour (or more, depending on your state or locality), and non-exempt employees an overtime premium of 1.5 times their regular rate of pay for any hours worked in excess of 40 in any work week.

Simple on its face, yet extraordinarily complicated in application. This law costs employers billions of dollars per year in non-compliance.

Does the attorney-client privilege protect harassment investigations conducted by a lawyer?

An employee complaints to HR that her supervisor has been sexually harassing her. The allegations aren’t pretty, and, if the investigation is mishandled (or even if it’s handled perfectly), you are reasonably confident that the employee will sue the company. Thus, you want to ensure that every “i” is dotted and “t” crossed in the investigation. So, you bring in the big guns to handle the investigation—the company’s attorney.

At the conclusion of the investigation, the lawyer recommends that the company suspend, and not fire the harasser. That decision leads to the victim filing suit.

During her lawsuit, the employee requests a copy of the investigatory report. You refuse, claiming it’s protected by the attorney-client privilege.

What does a valid jury waiver look like?

Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act. It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.

I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I've previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.

WIRTW #554 (the “triumph” edition)

How do we raise our girls to become confident women? It’s a question I think about a lot as a dad to an almost teenage girl.

🙋‍♀️ We encourage them to pursue their passions.
🙋‍♀️ We get them working collaboratively with other girls.
🙋‍♀️ We put them into positions to gain leadership skills.
🙋‍♀️ We praise their successes.

While I love School of Rock for both of my kids, this is why I especially love it for my daughter.

To see an almost 13-year-old (everyone wish Norah a Happy Birth Day for Monday) command a stage with skill and passion, and with the love, respect, and admiration of her peers, older and younger, fills this dad with a ton of pride and joy.

And it tells me that she’ll be just fine as an adult, whether her journey is through music or otherwise.

So enjoy Norah doing her thing last weekend (along with Donovan’s fly dance moves), taking the lead on Triumph by the Screaming Females.

As for Norah’s own band, Fake ID, you have two chances to see them live over the next few weeks.

• June 1 @ Ohio Bike Week, in Sandusky. They’ll be on the Scott Gast Memorial Stage, at Columbus Ave. and Water St., from 3:30 - 5 pm. 
• June 15 @ Crocker Park, in Westlake. They’ll be rocking the square in front of Regal Cinemas from 5:30 - 7 pm.

Both shows are open to the public and free. Keep an eye out for the merch table to grab your official Fake ID t-shirt.

Here’s what I read this week:

Defining (and defending) my role as an attorney: more on the employment of registered sex offenders

On Tuesday, I posted something that I did not imagine would be all that controversial, You just found out you hired a sex offender. Now what? Boy howdy was I wrong.

Over at Workforce.com (which syndicates my blog daily), the post had received (so far) 117 (mostly) alarmingly negative comments.

In harassment cases, the context of profanities matters (but only sometimes)

“Why is everyone suddenly using the C-word,” asks Stan Carey in The Guardian? He blames Game of Thrones (video very NSFW—you’ve been warned).

Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.

You just found out you hired a sex offender. Now what?

A reader sent me the following question.

I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.

There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?

The 11th nominee for the “worst employer of 2019” is … the 💩y supervisor

From the legaladvice subreddit:

So background, I have IBS and sometimes have to go the bathroom multiple times per work day. My supervisor doesn’t believe I am legitimately using the bathroom, so he said today at the end of the day today if I don’t send him a picture or otherwise prove that I used the bathroom, I will lose 15 minutes of paid time. What sort of recourse do I have?

WIRTW #553 (the “669” edition)

Jack Ma, the founder of Alibaba (China’s answer to Amazon), claims that he has cracked the formula to a happy and productive workforce.

His answer? 669.

What does that mean? According to The Telegraph—

“We want 669 in life. What is 669? Six times in six days; the emphasis is on nine,” he said at a company gathering, referring to sex, and using a play on words, as the word “nine” in Mandarin is a homophone for the word “long.”

He wants his employees to have long sex six times every six days. 

And you thought American employers had issues?

Here’s what else I read this week.

Abortion discrimination = pregnancy discrimination

Thanks to, among other states, Alabama, Georgia, and Ohio (sorry about that last one), the debate over abortion is raging. Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?

Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.

No.

No, the feds should not ban noncompetes because of #MeToo

A recent op-ed in the USAToday argues that the federal government should outlaw noncompete agreements because they trap workers in abusive workplaces.

Since women who complain about harassment face retaliation and even termination, often the only way to escape it is to find a new job. Yet for many women, continuing their careers with a new employer turns out to be impossible. 

That is because of noncomplete clauses. After they have resigned or even been fired, workers bound by noncompetes cannot accept employment in the same line of work or industry as their former employer for a specified period in a certain city, state or even the entire country. Nearly 30 million working people, including more than 12 million women, are locked into their jobs because of noncompete clauses.…

By depriving them of outside employment opportunities, noncompetes lock victims of harassment into abusive environments. 

I could not disagree more. Noncompete clauses are not responsible for trapping sexual harassment victims in abusive workplaces.