Coronavirus Update 2-22-2021: Get ready for the glut of Covid whistleblower tag-along claims

The headline reads, "Ex-Manager Sues Ample Hills in Lawsuit Alleging Harassment and Unsafe COVID-19 Protocols" (emphasis mine).

Here's the lede:

Bryce Mottram, a former general manager at one of quirky ice cream purveyor Ample Hills' scoop shops, has filed a lawsuit in New York Eastern District Court alleging that he was fired from the company in retaliation for speaking up about instances of sexual harassment and unsafe COVID-19 workplace protocols at the company.

I firmly believe that for the next year-plus, just about every employment-related lawsuit will contain a COVID-19 whistleblower tag-along claim. 

The number one reason not to have a labor union

You would think that an employee who purposely defecates on the workplace floor in an act of revenge against his boss and then brags about it is worthy of termination. And you'd be correct 100 percent of the time … unless that employee is a member of a labor union. An arbitration board cited the employee's lengthy, faithful service record to the company and other mitigating circumstances in reinstating him. 

How do you define success?

This week I had the pleasure of guesting on Pat Perry's Success Wave podcast. During our half-hour-plus conversation, Pat and I discussed a variety of topics, including lawyering in the time of COVID-19 and the key issues I see employers facing in 2021. We also talked about some general business questions, such as this one: How do I define "success." Here's my answer.

You can listen to the full episode on Apple Podcasts or wherever you get your podcasts.

Pop culture as a means to break down inherent biases and prejudiced divides

Think about it. If you want to know where the American public is, look at the money being spent on advertising. Did you ever five years ago think every second or third ad out of five or six you turn on would be biracial couples. [Applause] No, I'm not being facetious. The reason I'm so hopeful is this new generation. They're not like us. They're thinking differently. They're more open. And we have to take advantage of it.

Those were the words of President Biden last night, speaking about race relations during his CNN Town Hall. 

He's 100 percent correct. 

Coronavirus Update 2-16-2021: Are you monitoring your remote employees?

According to this article at Wirecutter.com, employers are using the COVID-19 pandemic as a justification to enhance their monitoring of employees' activities, specifically remote employees.

As COVID-19's spread has prompted an expansion of work-from-home policies across various industries, the use of more-pervasive monitoring software, also known as "tattleware" or "bossware," has increased. The New York Times demonstrated how this software works, but the idea is simple: Once the software is installed, an employer has deeper access and even live monitoring tools for everything you do on your computer, including which applications you open, what websites you visit, and how much time you spend doing different activities. Employers can use this data to track your attendance or periodically snap screenshots of your screen. Some software can even monitor the music you listen to, your facial expressions, your tone of voice, or your writing tone throughout the day. To what purpose depends on the type of work you do—and whom you do it for.

According to Brian Kropp, VP of Research for Gartner, the number of companies that use this "tattleware" has increased from 10 percent pre-COVID to 30 percent currently. It's an epidemic all on its own.

Coronavirus Update 2-15-2021: CDC updates quarantine guidelines for vaccinated individuals

Must individuals who are fully vaccinated (i.e., have received both vaccine doses) against COVID-19 quarantine if they have been in close contact with someone who has a confirmed case of the virus?

According to guidance recently updated by the CDC, the answer is no (assuming certain criteria are met).

Coronavirus Update 2-12-2021: Doctor wrongly fired for doing the right thing with expiring COVID vaccine dose

"Ten doses of the Covid-19 vaccine would expire within hours, so a Houston doctor gave it to people with medical conditions, including his wife." So reads the lede in this New York Times story. 

What happened next? He was fired.

Coronavirus Update 2-11-2021: CDC updates its masking guidelines; should you do the same for your business?

The CDC just updated its masking guidelines, now recommending that individuals wear two masks—a well-fitting surgical mask underneath a cloth mask. 

Should you be recommending or requiring the same for your business, both for employees and visitors? 

“I’m here live. I am not a cat.”

If you were on the internet yesterday, you likely came across the story of the lawyer who accidentally presented as cat during a Zoom court hearing. The Texas lawyer had accidentally left on a cat filter during a video conference call and was unable to turn it off.

“I’m here live, I’m not a cat,” says lawyer after Zoom filter mishap

“I can see that,” responds judge pic.twitter.com/HclKlAUwbM

— Lawrence Hurley (@lawrencehurley) February 9, 2021

While this story provided everyone a much-needed laugh, it does offer two important points: one about a lawyer's ethical duty of technological competence, and another about the importance of a sense of humor and empathy.

Coronavirus Update 2-9-2021: Time off for the COVID-19 vaccine

At some point over the next few months, some (most?) of your employees will receive the COVID-19 vaccine. Depending on the rules of your state, the nature of your business, and the age or medical issues of your employees, some may already have. I've previous covered the legal issues surrounding the vaccine, here, here, and here. Today I want to cover a practical issue—time-off related to the vaccination.

Have you felt the pain of a wage/hour investigation or lawsuit?

For the past three years, the Department of Labor has been trying to get employees PAID for their unpaid overtime and minimum wages. That's PAID, as in the Payroll Audit Independent Determination program, a creation of the Trump administration that allowed employers to self-report FLSA violations to the Department of Labor without risk of litigation, enforcement proceedings, or liquidated damages.

As of last week, however, the PAID program is history, as the DOL announced its immediate end.

Podcast recommendation: The Test Kitchen

I'm always on the lookout for new podcasts to add to my queue. Today's is a doozy. It's called The Test Kitchen, and it comes from the editors of Reply All at Gimlet Media. In four parts, it will tell a sadly familiar tale of racism and toxicity in the workplace. The workplace at issue is Bon Appétit magazine. 

Here's the set-up.

You'll find the full episode here, or wherever you listen to podcasts.

No, you don’t get to keep your paid leave after your position is eliminated

The headline reads, "Trump aides made a late request to Team Biden to extend their parental leave. They said no." Here's the story:

[A] number of ex-Trump political officials … lost their parental leave when Joe Biden was sworn into office. It's a byproduct of the field they're in: Their boss (the president) may have been the one let go, but his departure has meant that they, too, lose their jobs and benefits. Still, they argue that the Biden administration should have honored their leave by keeping them on payroll until the end of it — a request that … the Biden transition did not grant.

One such employee, Vanessa Ambrosini, welcomed a new baby the week before Christmas, and was looking forward to parental leave through mid to late March. "I got completely screwed," she says.

No, Vanessa, you didn't. What you got was unemployed, a fact of which you should have been well aware since at least November 7. In fact, you should have been aware of it for more than a month before you started your maternity leave. It seems to me these employees are trying to take advantage of the consequences of which they were well aware in an attempt to make the new administration look bad. I don't buy it.

Coronavirus Update 2-3-2021: Have you had to deal with “COVID fraud” in your workplace?

According to Vice, people are using photo editing software to doctor COVID test results.

"I just fired up photoshop and changed the date," wrote one man who had doctored results for an entire group of friends to Motherboard. "Fun fact, the document [test result] was in French whereas they were in Sweden the day it was supposedly made, but they didn't see a problem in that."

The other person took a slightly less sophisticated route and changed the date of an old test with Microsoft Paint for his vacation to Southern Europe.

Coronavirus Update 2-2-2021: As new COVID-19 variants doubling down on transmissibility, OSHA doubles down on prevenative measures

"Wear a mask and stay 6 feel apart." It might sound like Groundhog Day to keep repeating this mantra. It's also the most basic and most important steps we can take to remain safe, healthy, and COVID-free.

Last week OSHA published new guidance for employers about mitigating and preventing the spread of COVID-19 in the workplace. While I recommend you read it, understand it, and adopt its teachings in your workplace as best practices to keep your employees safe and healthy, I want to draw your attention to this language.

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

How many N-words create a hostile work environment?

Last week, the U.S. Supreme Court was asked to answer these questions:

Whether an employee's exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact.

Whether and in what circumstances racial epithets in the workplace are "extremely serious" incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable "mere utterances."

New Music Friday: “Wish I Was Ur Guitar,” by norah marie

Welcome back to New Music Friday. Today, I'm so happy to share my 14-year-old daughter's first-ever single, "Wish I Was Ur Guitar." 

I love the song (obviously) and its title. If you ask Norah she'll tell you that she usually has a hard time coming up with titles for her songs, and for this song, she thought of the title first and liked it so much she wrote the entire song around it. She performs everything on the track—lead vocal, harmonies, guitar, bass, and percussion. 

I think it’s great (although I'm quite biased), and I’m super proud of her for having the courage to share her music and creativity with the world.

I applaud any company that takes a stand in support of democracy

Meet Bob Unanue, the (for now) CEO of Goya Foods. Here he is talking to Maria Bartiromo on Fox Business.

Goya Foods CEO Bob Unanue tells Maria Bartiromo how coronavirus was used for “ushering in the dawn of a new world order, this Great Reset, with an unverified election,” falsely claims 80 million people voted for Trump. “There is a war coming.”

Maybe rename the company “MyBeans”? pic.twitter.com/Kw8WXoTBLg

— Eric Kleefeld (@EricKleefeld) January 20, 2021

Coronavirus Update 1-27-2021: Tread carefully if offering employees financial incentives to get the COVID-19 vaccine

To a nation waiting for action, let me be clearest on this point: Help is on the way. 

Those were the words of President Biden in announcing the ordering of 200 million additional COVID-19 vaccine doses, a hike in the distribution of doses to states, and a promise that there will be enough doses to fully vaccinate 300 million Americans by the end of summer. It's an ambitious plan, but it's what we need to end a pandemic that has already claimed the lives of more than 425,000 Americans and will claim hundreds of thousands more before we close the book on Covid.

Vaccines, however, only work if people actually accept syringes in their arms. Too many of us say that they won't. 

The 3rd nominee for the “Worst Employer of 2021” is … the pregnant pauser

Pregnancy discrimination has been illegal for at least 43 years. You'd think employers would know better. You'd also lose a lot of bets if you bet against the ignorance of some employers. 

Meet Awon Phie LLC, which operates a Holiday Inn Express in Corpus Chrisi, Texas, our third nominee for the "Worst Employer of 2021." How did it earn its nomination? According to a lawsuit the EEOC filed against it, three weeks after hiring an employee to work as a housekeeper, the company's operations manager, noticing her stomach, told her she was a "liability" because of her pregnancy, that she couldn't employ a pregnant woman, and fired her.