Meet the new boss, same as the old, old boss—NLRB issues long-awaited final rule on “joint employment”

Yesterday, the NLRB announced its long-awaited final rule governing joint-employer status under the National Labor Relations Act.

The rule clarifies that for an employer to qualify as a “joint employer” it must “possess and exercise such substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.”

Just being in a protected class is never enough to protect an employee’s job

When Wisconsin Physicians Service Insurance Corporation terminated Mary Lou Stelter from her sales position, she claimed disability discrimination relating to a workplace back injury and her related two-month leave of absence.

WPS, on the other hand, argued that Stelter’s manager, Wendy Harings, expressed concerns about Stelter’s performance deficiencies and absenteeism four years before the back injury; thus, any negative marks after her injury were merely a continuation of her long history of on-the-job issues and not evidence of discriminatory animus.

The 4th nominee for the “worst employer of 2020” is … the perverted Peking-duck purveyor

Every year I worry about how I’m going to fill my annual list of worst employers. I’ve yet to be disappointed.

The EEOC recently filed suit against a Medford, Oregon, Chinese restaurant after its middle-aged night-shift manager repeatedly sexually harassed young female employees.

WIRTW #588 (the “new voices” edition)

One of the benefits participating in the Tri-C High School Rock Off is that your band gets featured in the Rock & Roll Hall of Fame’s “New Voices in Rock” video series. One of the benefits of advancing to the Finals is that your band gets featured a lot more in said video. So, without further adieu, I bring you Fake ID’s contribution to the Rock Hall’s “New Voices in Rock” series.


The Finals are next Saturday night, February 29. Tickets are only $12 (including Rock Hall admission) and are available here. Aside from Fake ID participating, it really is one of Northeast Ohio's best music events of the year.

Here’s what I read this week:

Just because an employer wins summary judgment doesn’t mean you should emulate its behavior

Jennifer Paskert worked as a sales associate for Auto$mart, a “buy here, pay here” used car dealership located in Spirit Lake, Iowa. During her six months of employment, she claimed her manager, Bret Burns, sexually harassed her. Her allegations included overhearing Burns tells other than he “never should have hired a woman” and wondering aloud if he could make Paskert cry. Burns also bragged at work about his sexual conquests. One on occasion he attempted to rub Paskert’s shoulders told her he was going to give her a hug. On another occasion, after Paskert had criticized how Burns treated women, Burns replied, “Oh, if you weren’t married and I wasn’t married, I could have you … You’d be mine … I’m a closer.”

Ultimately, Auto$mart fired Paskert for “insubordination.” She then filed suit for sexual harassment, among other claims.

“It’s a major award!”

I hate tooting my own horn. It usually comes off as self-serving and tasteless. But, sometimes it’s unavoidable. Today is one of those days.

I’m being honored by the Cleveland-area chapter of the National Association of Social Workers as its Public Citizen of the Year. 

7th Circuit concludes employer should have advised injured employee of FMLA rights even after employee went AWOL

Buddy Phillips injured his ribs while playing with his grandchildren. Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.

He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.

WIRTW #587 (the “joy” edition)

On Valentine’s Day, we tend to focus (because marketing and advertising tell us that we should) on our significant other. Not to sound too cheesy, but I focus on my wife every day. I don’t need a special heart-shaped day on the calendar to remind me. Thus, I instead like to focus on the general ideals of love and that which brings joy into our lives. 

So for today, let’s focus less on the Hallmark world of Valentine’s Day and more on all of the things in our lives that bring us love and joy. 

And, in that vein, I bring you something that recently brought me tremendous joy—this video of my daughter learning that her band advanced to the finals of the 2020 Tri-C High School Rock Off. Don’t get me wrong, I’m excited for the opportunities that this will bring them, but I’m more excited because you can see from the look on her face when she hears the emcee announce, “Fake ID,” just how happy this makes her. We all need something in our lives that makes us this happy and joyful.

Happy Valentine’s Day y’all.

Here’s what I read this week:

The 3rd nominee for the “worst employer of 2020” is … the arresting retaliator

An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs. But that’s not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. It’s what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive.

NBC News has the details:

Even though this employer won its ex-employee’s retaliation lawsuit, PLEASE don’t do what it did

Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.

For example, consider Allen v. Ambu-Stat.

The Dos and Don’ts of firing an employee

Firing people SUCKS. And anyone who tells you that they take pleasure from it shouldn’t be doing it.

It’s the absolute worst part of any manager’s job. Sure, there are exceptions. An employee sexually harasses, or steals, or assaults someone? I’m not feeling badly about their termination. But otherwise, it’s awful having to communicative to someone that they no longer have a job.

The first person I ever fired broke down in tears and begged for another chance (even though he was at least on his third). He earned his termination, and I still felt completely awful about having to tell him.

Kate Bischoff inspired today’s post with her difference of opinion yesterday, blogging that she likes firing people.

Like or dislike, if you’re in management or HR you will have to fire someone eventually. Thus, today I offer five helpful dos and five helpful don’ts to help ease the pain of the process.

Amazon’s crackdown on employee climate-change protesters is a teachable moment on employee speech rights

Earlier this year, Amazon threatened to fire two employees who spoke out against the company’s stance on climate change. In addition, the company also issued a new employee communications policy.

The protest started last April when a group calling itself Amazon Employees for Climate Justice published a letter signed by more than 8,700 employees. It called on Amazon to adopt a company-wide plan to address climate change. As the protests intensified, Amazon ultimately reacted with the new policy and the job threats.

WIRTW #586 (the “silos” edition)

Yesterday, Suzanne Lucas (aka the Evil HR Lady), asked a question about corporate jargon.

One of my least favorite corporate jargon-isms? “Stay in your lane.” It suggests that we only do that which we do best, and not veer into areas outside of our comfort zone.

Why not? New and different lead to learning and creativity.

Comfort zones are boring. They can lead to staleness and silos.

Labor issues when you acquire a company with a union

Spotify recently announced that it is acquiring The Ringer, one of the most prolific and popular podcasting networks. Spotify also indicated that it intends to hire all of The Ringers’ 90 employees, most of whom work on theringer.com, which covers sports and culture and which Spotify indicates it will keep up and running.

Last summer, 66 of those 90 employees signed union-authorization cards stating their support for the Writers Guild of America East to represent them as their collective bargaining representative. Shortly thereafter, The Ringer management voluntarily recognized the Guild as the union representative for its employees.

What does this mean for Spotify? Is it acquiring a labor union as part of its purchase of The Ringer? Like most legal questions, the answer depends on a number of factors.

What is the Advancing Support for Working Families Act, and why doesn’t it go far enough?

During last night’s State of the Union Address, President Trump announced his endorsement of the Advancing Support for Working Families Act.

Whether we are Republican, Democrat, or independent, surely we must all agree that every human life is a sacred gift from God. As we support America’s moms and dads, I was recently proud to sign the law providing new parents in the federal workforce paid family leave, serving as a model for the rest of the country. 

Now I call on Congress to pass the bipartisan Advancing Support for Working Families Act, extending family leave to mothers and fathers all across our nation.

Urine trouble: Ohio Supreme Court to decide whether an employer can require “direct observation” of a workplace urine-sample collection

An employer requires “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy. The employer sends an individual of the same sex to accompany the tested employee into a restroom designated for the sample collection to visually observe the employee producing the sample. The employer’s substance abuse policy and the consent and release form provide for the testing, neither discloses or provides for the direct observation of the sample production.

These are the facts of Lunsford v. Sterilite of Ohio, in which the Ohio Supreme Court will decide whether a private-sector, at-will employee who agrees to drug testing as a condition of continued employment has a reasonable expectation of privacy during mandatory drug screening.

Poll: how do you handle “Super Bowl Fever”?

Today is Super Bowl Monday, the day after the big game. The game ended after 10 pm last night, and parties went much later. In light of this, consider these stats from Kronos:

• An estimated 17.5 million U.S. employees say they may skip work today. 
• Of those employees, 11.1 million say they will likely use preapproved time-off.
• Another 4.7 million plan to call in sick even though they’re really not ill.
• 1.5 million say they will not tell anyone they’re not coming in and just won’t show up.
• 11.1 million employees plan to go to work, but will show up late.

So here’s my question for everyone. How will your business handle the “Super Bowl Fever”?

WIRTW #585 (the “demos” edition)

My daughter’s band, Fake ID, just recorded demos of a few of their original songs. Check them out on Soundcloud; they’d really appreciate it.


They will be performing some of these songs live at the Rock Hall tomorrow night for the first round of the Tri-C High School Rock Off. Fake ID is officially sold out of their ticket allotment (on behalf of the band, a big thank you to all who bought tickets), but they are still available through the Rock Hall’s box office, and will be sold at the door on the night of the event on a first-come-first-served basis. Cleveland.com calls the Rock Off “one of the most important — and best — musical events in Northeast Ohio.” Having attended in years past, I can vouch. It’s a fun night, with creative kids showing off their musical chops in a great venue (even if Norah’s not on stage).

Here’s what I read this week.

Does Title VII protect “veganism” as a religion?

A judge in the United Kingdom has ruled that “ethical veganism” is a protected class akin to religion and is protected from workplace discrimination. The Washington Post shares the details:

An employment tribunal made that landmark determination in a case involving a man who claimed he was fired from his job at an animal rights organization for revealing to colleagues that their pension funds were invested in companies that experiment on animals. The tribunal has yet to rule on the merits of the case, but it did on Friday take the step of deciding that the man’s ethical veganism constitutes a “philosophical and religious belief” protected by anti-discrimination law.

That’s the United Kingdom. What about the United States? Well, it depends.

Chipotle settlement highlights child labor issues

According to CNN, Chipotle has agreed to pay a $1.3 million fine for more than 13,000 child labor violations at over 50 of its Massachusetts restaurants. The state’s attorney general’s office accused the company of forcing teenagers to work without proper work permits, late into the night, and for too many hours per day and week. It’s the largest child labor penalty in Massachusetts history.