’Twas the Employment Law Night Before Christmas (2023 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2023.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone on January 2, 2024, with new content, including a fresh batch of Worst Employer nominees, to kick off the new year.

Announcing 2023’s Worst Employer

The votes have been counted. The WINNER of The Worst Employer of 2023 is...

🏆 The Child Labor Abuser 🏆

This is what it looks like to kick a business while it’s down

Last week, Corky & Lenny's, a deli that has been a local institution for the past 67 years, closed its doors. The owners cited staffing shortages and burnout as the primary causes.

Just three days later, one of its former employees filed a collective action lawsuit under the Fair Labor Standards Act for unpaid wages against the business and its owners. The named plaintiff, who worked as a server at the restaurant, claims that the business automatically deducted 30 minutes per shift for lunch for all non-exempt employees regardless of whether they took their lunch breaks or worked through them. She further claims that the business no longer had any method for employees to report days on which they did not take a lunch break, and otherwise ignored complaints of unpaid wages.

Denying gender-affirming health care to transgender employees is unlawful discrimination

Morgan Mesi, a transgender man, has just sued his former employer, Tenzing Wine & Spirits, along with his labor union and group health plan, claiming that they discriminated against him because of his sex by denying medical insurance coverage for gender-affirming care.

To me, Bostock v. Clayton Cty. clearly resolves this issue. In Bostock, SCOTUS held that Title VII's prohibition of sex discrimination also prohibits discrimination because of an employee's sexual orientation or gender identity. Indeed, Bostock could not have been clearer regarding the treatment of transgender employees: "[a]n individual's … transgender status is not relevant to employment decisions."

WIRTW #699: the “Mackrell” edition

One of my primary business development goals for 2023 was for Wickens Herzer Panza to join a law firm network.

Mission accomplished!

WHP is the new Ohio member firm for Mackrell International. MI is a strongly connected, vetted, and trusted network of more than 4,500 lawyers across 90+ independent law firms and 170+ offices worldwide. Instantly, WHP transforms from a stalwart mid-size local firm to an international conglomerate with access to thousands of trusted lawyers across the country and around the globe.

We at WHP couldn't be more excited for what this new relationship means to us and our clients. Becoming part of the MI family and expanding our platform outside of our state to a national and international scale significantly adds to our capabilities and our ability to service our clients.

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Here's what I read this week that you should read, too.

Coincidence ≠ causation

An employer terminates a group of 14 employees within six weeks after learning that they were discussing unionizing.

Despite the timing of the mass termination of these employees, the 8th Circuit — in Strategic Technology Institute v. NLRB — reversed and concluded that anti-union animus did not motivate the terminations. 

WIRTW #698: the “heads will roll” edition

It's not every day that John Oliver happens to feature one of your Worst Employer nominees the very same week that you open the polls to vote for said Worst Employer. 

The video:

* The John Oliver story is not an endorsement of this employer as the Worst Employer of 2023. 

If you want to have your say on who should win, make sure to vote prior to Wed., 12/13 at 11:59 pm eastern time.

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Here's what I read this week that you should read, too.

A lesson in how NOT to testify

Congresswoman Elise Stefanik: Ms. Magill at Penn, does calling for the genocide of Jews violate Penn's rules or code of conduct? Yes or no?

UPenn President Liz Magill: If the speech turns into conduct, it can be harassment. Yes.

Stefanik: I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment?

Magill: If it is directed, and severe, pervasive, it is harassment.

Stefanik: So the answer is yes.

Magill: It is a context dependent decision, Congresswoman.

Stefanik: It's a context dependent decision. That's your testimony today, calling for the genocide of Jews is depending upon the context, that is not bullying or harassment. This is the easiest question to answer. Yes, Ms. Magill. So is your testimony that you will not answer yes? Yes or no?

Magill: If the speech becomes conduct. It can be harassment, yes.

Stefanik: Conduct meaning committing the act of genocide. The speech is not harassment. This is unacceptable. Ms. Magill, I'm gonna give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn's Code of Conduct when it comes to bullying and harassment? Yes or no?

Magill: It can be harassment.

Stefanik: The answer is yes.

It’s illegal for gay people to discriminate against straight people … just not on these facts in this case

There is no such thing as "reverse" discrimination. Discrimination is discrimination, whether the victim is, for example, Black or white, female or male, gay or straight. When the employee claiming discrimination is in the majority, however, in the 6th Circuit they must not only show disparate treatment, but also must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Which brings us to the story of Marlean Ames, a straight woman who sued the Ohio Department of Youth Services for sex discrimination under Title VII claiming that her lesbian supervisor discriminated against her because of her sexual orientation. Ames claimed that OHYS passed her over for a promotion, demoted her, and promoted a gay man to her former position.

VOTE for the Worst Employer of 2023

It's the most wonderful time of the year. I've made my list. I've checked it twice. Now it's time to find out who's naughtiest and not very nice. It's voting time for The Worst Employer of 2023.

I've culled my list of 10 nominees down to the worst 7 as finalists. 

It’s called family and medical LEAVE for a reason.

According to Above the Law, however, one Biglaw firm recently reminded its employees that they need to check their daily emails while out on leave.

There is ample time in the day for everyone on leave to monitor their emails daily and to forward any emails requiring attention to the appropriate members of the litigation team. If you are someone who has not been monitoring your emails daily, please do so as soon as possible. If, for any reason, you are unable to perform this minimal task on a regular basis, please advise.

This is not just a terrible employee relations practice, it's also potentially illegal.

WIRTW #697: the “independent study” edition

Younger Jon would have never believed that Older Jon has two children in private school. I'm a proud survivor of the School District of Philadelphia, which provided me a high-quality education that positioned me well for college and career.

And yet, here I am with two children attending a K-12 independent private school. It's the best possible choice I could have made for either of them. Here's one example as to why.

My daughter, Norah, plans to major in early childhood education in college in preparation for a career as an elementary school teacher. Last year, she mentored in the Lower School by helping out in the 2nd and 3rd grade classrooms during her free periods. This year, however, a modernization of the school's daily schedule eliminated that opportunity.

Instead of giving up something she loves (working with the younger children), she pitched to the Upper School administration the idea of an independent study for the first semester of her senior year. The school wholeheartedly agreed.

For the past three-plus months, Norah independently researched early childhood education and development (specifically, the impact of tone of voice in the classroom), compiled that research into a paper, and designed and taught a lesson plan for the third grade.

Earlier this week, Norah presented her independent study to the Lower School faculty. Watching her professionally and confidently present her research and classroom experience was one of my best parental moments. It's a testament to her and the education she has received for the past 13 years at Lake Ridge Academy.

Norah is going to make a wonderful elementary school teacher, and I couldn't be prouder.

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Here's what I read this week that you should read, too.

Does it matter where you place an employee’s lactation space? (tl;dr: yes.)

An employee works as a speech-language pathologist in a large, metropolitan school district, traveling between two elementary schools and a high school. After giving birth, she requests a private space for lactation within each assigned school. The school district agrees, but the private space it provides to her in the high school was on a different floor than her work area.

Is this legal? Did this employer meet is legal obligations regarding the provision of a "private lactation space?"

This case perfectly illustrates religious accommodations post-Groff

Elimelech Shmi Hebrew is a devout follower of the Hebrew Nation, a religion that requires its followers to keep their hair and beard long — a vow he has kept for over two decades.

The Department of Criminal Justice has a grooming policy that prohibits male officers without medical skin conditions from having beards and in any case from having long hair.

Hebrew applies for a job as a corrections officer with DCJ. What wins out — Hebrew's religion or DCJ's grooming policy?

Craft beer isn’t facing an apocalypse … but the industry is changing

In addition to running the employment & labor practice at Wickens Herzer Panza, I also run our burgeoning craft beer practice. Which is why a recent article in Paste Magazine — "For Many Craft Breweries, the Apocalypse is Now" — caught my attention.

Here's the author's thesis:

The tragic breaking point for major brewery closures is no longer "coming soon." It's a macabre event that has been framed as something perpetually on the horizon for years, but there's no use in denying it anymore–the great die-off is here. It's now. The culling of the herd is underway in 2023, and simply making great beer is no guarantee of survival.

I wholeheartedly disagree. I do not believe that craft beer is facing an "apocalypse." 

I do believe, however, that a combination of the lingering impact of Covid (staffing shortages, rising inflation, and higher interest rates) plus changing consumer tastes means that craft beer's salad days are over.

So, what does this mean for our industry?

WIRTW #696: the “thankful” edition

Next week we celebrate Thanksgiving, my favorite holiday of the year. There will be turkey, stuffing, wine, and as many pies as there will be people at our feast (which, for the record, is 32 at last count).

None of that, however, tells the story of why Thanksgiving is my favorite holiday. That reason is family. It's the one time of the year when my entire Ohio family is guaranteed to be together in one place at one time. Laughs and good times are guaranteed.

Some years are more challenging than others. This year brought us struggles, loss, and a house flood. It’s important that Thanksgiving comes when it does — close to year’s end, but before we get lost in the hustle and bustle of the holiday season. It’s a day to pause and reflect upon all for which we are thankful.

And I’m thankful for a lot, which starts and ends with my family (2-legged and 4-legged). At the end of the day, that’s all that matters.

Everyone have wonderful Thanksgiving.

Here's what I read this week that you should read, too.

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Do you understand the rules for paying employees for commuting time?

A technician claims her employer owes her pay for time spent traveling to the office to pick up materials on the way to the airport for a flight to visit a customer. According to the employee, the employer only begins paying at the departure time of the scheduled flight.

Is this employee correct? Must an employer pay for that travel time? Is she owed wages for time spent commuting to the airport (including the time spent traveling to the office to pick up the samples)? Or does the law permit the employer to start the pay clock when she boards the flight?

The most metal employment law update ever!

Two of the most famous bands in the history of heavy metal are each facing lawsuits from former tour workers.

The family of a Kiss guitar tech, who died while quarantining in 2021 after contracting Covid while on tour with the band, is suing the band for wrongful death. According to a prior investigation by Rolling Stone, Kiss allegedly maintained lax Covid protocols on the tour in question — including a lack of testing and lots of crew members falling ill — that contributed to the roadie's death.

Meanwhile, an ex-tour photographer is suing Guns N' Roses for copyright infringement and sexual harassment. She claims that the band claimed ownership over numerous of her photos and used them in print and digital media, ad campaigns, and other outlets. She also alleges that the band's manager made "numerous unwelcome sexual advances" toward her and "committed consistent pervasive sexual harassment" in a "workplace environment that was completely devoid of any sexual harassment policy, sexual harassment handbook, sexual harassment training, and human resource department."

If you’re going to change an employee’s time sheet, make sure it’s an accurate change

🟩 LEGAL: Disciplining or firing a non-exempt employee who works unauthorized overtime.

🟥 ILLEGAL: Failing to pay a non-exempt employee for all hours worked, whether authorized or unauthorized.

🟩 LEGAL: Altering a non-exempt employee's time sheet so that it accurately reflects the actual number of hours worked.

🟥 ILLEGAL: Altering a non-exempt employee's time sheet to reflect a flat 40 hours per work week, no matter how many hours the employee actually worked.

A lawsuit recently filed against Liberty University will test each of these legal principles.

WIRTW #695: the “cover” edition

Earlier this week, I used the song "Pass the Kutchie" to illustrate Ohio's new recreational marijuana law. Some commenters were quick to point out that the song is called "Pass the Dutchie," not "Pass the Kutchie." Except it's not. "Pass the Kutchie" is a 1981 Jamaican reggae song by the Mighty Diamonds about Rastafarian cannabis pipes. One year later, Musical Youth covered that song and made it famous. Because they were all children, however, they replaced the song’s drug slang with “dutchie,” a food reference.

Coincidentally, this week the AV Club published lists of the 25 best and 25 worst cover songs of all time. All of this got me thinking about my favorite cover songs. Here are my top 5:

1. The White Stripes  "Jolene"
2. Sinead O’Connor — "Nothing Compares 2 U"
3. Johnny Cash — "Hurt" 
4. Janis Joplin — "Me and Bobby McGee"
5. Talking Heads — "Take Me to the River"

What about your favorite covers? Head over to LinkedIn and drop a comment to let me know.

Here's what I read this week that you should read, too.

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