Wednesday, February 15, 2023
No privacy for drug-test pees
Someone on Reddit asks: Is it legal for my new employer to watch my pee for a drug test?
I can’t speak for every state, but in my state the answer is an unequivocal “yes.” It’s perfectly legal to require the direct observation of an employee peeing for a new hire or workplace drug test.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 14, 2023
Employee harassed after coming out at work loses harassment lawsuit
After an employee comes out at work as gay, he alleges that co-workers left him pink nail polish, a nail file, and bath bombs, that someone posted Bible verses on his desk, and that he was moved to an isolated corner of the office.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 10, 2023
WIRTW #660: the “Freckles” edition
Two weeks ago I shared the story of Freckles, the toad that my daughter rescued from our backyard. On our podcast — The Norah and Dad Show — we left you with a cliffhanger. Did Freckles live or die. On this week's episode we share Freckles' fate, along with the fate of Norah's high school mock trial team.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, February 9, 2023
Seminars and Webinars: Employee Handbooks
When was the last time you reviewed and updated your business's employee handbook?
The reality is that you need a customized and updated handbook that documents the guidelines and expectations between your organization and your employees. If you do not pay careful attention to your handbook's contents, you might violate the law, alienate employees, and invite costly and time consuming lawsuits.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 8, 2023
Post-termination diagnosis is insufficient to support ADA claim
Haley Hrdlicka, a 30-year General Motors employee, began having attendance problems after transferring to its Design Academy. Serious attendance problems. Dozens of absences in the four-month period from May – August 2019. A less-than-glowing performance review followed by an "Attendance Letter" (essentially a final written warning) did nothing to improve her attendance. So GM fired her.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, February 7, 2023
What does an employer have to do to lose $366 million?!
$366 million dollars. That's how much a jury awarded Jennifer Harris, a Black sales manager targeted and then fired by FedEx after she complained to human resources that her boss discriminatorily demoted her.
That's $1.16 million in compensatory damages and $365 million in punitive damages.
The trial judge recently rejected FedEx's motion to reduce the punitive verdict as excessive and a violation of its due process rights.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, February 6, 2023
The problem isn’t “fake” managers, it’s the poorly named “administrative” exemption
"Would you rather be a front-desk clerk or 'Director of First Impressions'? A barber or a 'Grooming Manager'?" CBS News posed this question, and concluded that employers use these fancy, inflated titles to avoid paying employees in full for their overtime work.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, February 3, 2023
WIRTW #659: the “99 problems” edition
I got 99 problems, but being a podcast guest ain't one.
This week's episode is all about dating at work. The conversation goes all over the place, including to a mafia bar in Chicago. You'll have to listen to the episode to hear all about the craziest experience of my legal career.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, February 1, 2023
“Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim
The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year old child at the start of the Covid-19 pandemic.
In mid-March 2020, Polina Milman, an attorney working at Fieger & Fieger PC, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son who was exhibiting Covid symptoms and was already vulnerable because of a previous bout of RSV. The firm initially granted her WFH request. On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 31, 2023
Union avoidance vs. union busting
"A company that opposes a union organizing and presents both sides of this complex issue is 'union busting.'" This is what one commenter wrote in response to my recent post about union organizing at Creature Comforts Brewing Co.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 30, 2023
Lessons from coaching high school mock trial
When you try a case, there’s not much within your control. You can’t control the judge. You can’t control the jury. You can’t control your opposing counsel. Sometimes you can’t even control your own witnesses. But the one thing you can control is how well prepared you are, and you are so well prepared.
For the past four months I’ve been volunteering as one of the legal advisors for the Lake Ridge Academy Mock Trial team. That’s what I told my team the evening before their opening round of competition last Friday.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 27, 2023
WIRTW #658: the “Toad Jesus” edition
On the latest edition of The Norah and Dad Show, we discuss Freckles, Norah's newly rescued-from-the-backyard pet toad, who may be sleeping or may be dead. Welcome to the first cliffhanger in the history of our podcast. Find us on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, your old-fashioned browser, and everywhere else podcasts are available.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, January 26, 2023
Update on Creature Comfort Brewing’s union organizing
Last week I reported that the employees of Creature Comforts Brewing Co. formed their own independent labor union, the Brewing Union of Georgia (aka BUG) and announced their intent to unionize their workplace.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 25, 2023
Offensive social media posts doom airline employee’s discrimination claim
"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."
"Have you lost your cotton pickin' mind?"
"Too many [blue-eyed people] are reproducing with Brown Eyed People."
Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.
She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist."
The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.
She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …
As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.
This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 23, 2023
The BIG risk of misclassifying employees as independent contractors
A national auto parts distributor has reached a settlement with the Department of Labor to pay a total of $5.6 million in back pay and liquidated damages (plus interest) to 1,398 drivers misclassified as independent contractors. The payments to the individual drivers are as low as $40 and as high as more than $120,000.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 20, 2023
WIRTW #657: the “Let me buy you a beer” edition
From Jan. 30 – Feb. 1, the Ohio Craft Brewers Conference is taking place in Cleveland. My firm and I are playing a prominent role.
- On Jan. 30 we are sponsoring the opening reception at Forest City Brewery, from 5:30 - 7 pm. If you've never been, it's an amazing space, a restored 19th century brewery building. It has the oldest (and, imho, most beautiful) beer garden in Ohio, and one of the oldest in the nation … although it might be a tad cold to fully enjoy it. Forest City also produces some of the best beer in NE Ohio — I recommend the Opening Day IPA and the Hootenanny (a kölsch). Finally, Apostle Jones, a local rock and soul band, is providing the musical entertainment. They are not to be missed. Look for me at the Wickens Herzer Panza table (where we'll have some nice giveaways) or milling about the brewery. Stop and say hi and I'll be sure to buy you a beer. This is an open event and you do not have to be registered for the conference to attend.
- On Feb. 1, at 11 am, I am speaking in the Fundamentals Room on Crafting Your Craft Brewery’s Employee Handbook.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, January 18, 2023
What does Creature Comfort’s union announcement mean for your craft brewery?
The employees of Creature Comforts Brewing Co. recently held a rally to announce their intent to form a labor union. They also announced the formation of the Brewing Union of Georgia, an independent union created by the brewery's employees with the stated goal of spreading their movement across their state. Despite the union's "independence," it has received assistance and guidance from assistance from the United Campus Workers of Georgia and the Workers Center at the Economic Justice Coalition.
This is HUGE news for the craft beer industry.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, January 17, 2023
Dress codes and gender biases
Women are prohibited from showing their bare arms.Women are required to cover their dress with a second layer.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, January 16, 2023
Dr. King’s struggle has not ended
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, January 13, 2023
WIRTW #656: the “Dilenogate” edition
Until now, I've avoided writing about Dilenogate, the story that has gripped the Cleveland legal community and the nation.
- When an Employee Returns from FMLA Leave, Don't Be This Employer — via Jeff Nowak's FMLA Insights
- Maternity Leave Is Not "Sitting Around on Your Ass" — via Suzanne Lucas at Inc.com
- Firm Parts Ways with Lawyer Who Called Maternity Leave "Sitting on Your Ass", After Text Calling Maternity Leave "Sitting on Your Ass," Law Firm Looks oo Sit on Its Ass on Response, and "Collecting Salary from the Firm While Sitting on Your Ass" Is Certainly ONE Way for a Senior Lawyer to Describe Maternity Leave — via Above the Law
- Text accusing exiting lawyer of sitting on her keister during maternity leave leads to second departure — via ABA Journal
- Cleveland law firm, attorney criticized after social media post shows insulting text sent to attorney who left firm after maternity leave — via Cleveland.com
1.) Offer strong parental leave programs. The FMLA requires 12 weeks of unpaid leave. Consider offering more, or offering to cover the employee's pay for some/all of the leave. If you're not FMLA covered or the employee isn's FMLA eligible, consider mirroring the statute for your employees anyway.
2.) Ramp up/down policies. Plenty of employees work their full 40 right up until their due date, and jump right back into the deep end of work as soon as their leave ends. But consider a phase out and a phase in with reduced hours on both ends. It helps the new mom's physical health leading up to childbirth and her mental health in returning to work.
3.) Schedule flexibility. Parenting isn't a nine-to-five job. It's a 24/7/365 job that is really good at throwing curveballs to parents. Late nights with little sleep. Unexpected doctor appointments. Visits to the pediatric ER. Do you want a sleep deprived or otherwise distracted employee at work. You certainly won't get their best. So try to be as accommodating and understanding as possible. Flexible hours and remote work help ease the stress caused by the unexpectedness of raising a newborn.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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