WIRTW #712: the ‘OH-WOOO’ edition

I will officially have a college student in a little over four months. The "if" was never in doubt, but there "where" definitely was … at least until a couple of weeks ago.

Norah chose Ohio Wesleyan University — OWU, or, as it's affectionately called, OH-WOOO. She'll be a Battling Bishop.

"Fit" might be a four-letter word in the employment law space, as employers often use it as a pretext for discrimination. But for Norah's college choice, it was all about fit.

✅ Small liberal arts school

✅ Small class sizes
✅ Within a shortish drive from home
✅ The ability to double major in early childhood education and French
✅ Opportunities to study abroad
✅ A cute campus with off-campus amenities within walking distance

OWU checked all of these boxes. It also didn't hurt that OWU awarded her a Wesleyan Scholarship (one of its highest academic awards) and accepted her into both its Honor Program and Global Scholars Program.

To listen to Norah talk about the "why" of her college choice and the process she used to make her decision, tune in to this week's episode of The Norah and Dad Show, which you'll find on Apple Podcasts, Spotify, Amazon Music, Overcast, via your browser, and any everywhere else you get your podcasts

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

The 5th nominee for the Worst Employer of 2024 is … the abhorrent optometrist

"The only thing that changed from when I left for maternity leave to when I was terminated was the fact that I had a baby. It sent a clear message they didn't value me as a person, as a new mom. It was shocking."

Those are the words of Dr. Alana Curatola, who is now suing her former employer, Northwest Eye Surgeons, for discrimination.

YouTuber faces legal challenge against his overly broad severance agreement

"Employer and Employee agree to keep the existence and terms of this Agreement confidential and to not disclose its provisions to anyone.… Employer and Employee further agree not to take actions or make statements, written or oral, that would disparage or otherwise defame the goodwill or reputation of the other."

Those are the confidentiality and non-disparagement terms of the severance agreement that Steven Crowder, a popular right-wing YouTuber, provided to Jared Mittelo, his producer.

And they are why Mittelo has filed an unfair labor practice charge with the NLRB.

WIRTW #712: the 'lunatics are in my hall' edition

On April 8, Cleveland will be in the path of totality for a solar eclipse.

One hasn't happened here since 1806; the next one won't be until 2444.

People are losing their minds. Businesses and schools will be closed. Hotels have been fully booked for a year or more. Festivals are occurring. Bars and restaurants are holding special events. Traffic is predicted to be a mess for miles and miles around. All for a few minutes of the moon blocking out the sun, which you can't see without special glasses to keep you from going blind.

You know what? I couldn't care less. It's a hassle, not a celebration.  I'm an eclipse scrooge.

What about you? Are you "Team Eclipse" or "Team Meh"?

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

If your company just agreed to pay $2 million to settle a horrific sexual harassment lawsuit, maybe don’t trash the plaintiff on social media

If your company just agreed to pay $2 million to settle a lawsuit alleging horrific workplace sexual abuse and other sexual harassment, maybe it's not the best idea to trash the plaintiff on social media.

Last week, I nominated National Raisin for the Worst Employe of 2024, based on the allegations of a lawsuit it just settled with the EEOC. Those allegations consisted of widespread sexual abuse perpetrated by a male supervisor. To make matters worse, the lawsuit also alleged that HR did nothing when employees complained.

WIRTW #711: the ‘podcast’ edition

"Jon, tell us about your law firm and your legal practice."

"I'm so glad you asked, Lorain County Business Insights Podcast."

I recently sat down with host Ed Skimin to discuss that and more. We talked about Wickens Herzer Panza's comprehensive legal services for small to mid-sized businesses, our global reach through Mackrell International, the scary implications of artificial intelligence, and the unique challenges of representing craft breweries.

Listen via Apple Podcasts, Spotify, Google Podcasts, Amazon Music, on the web, or wherever else you get your podcasts.

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Here's what I read (and listened to) this week that you should, too.

Cheers to the CHEERS Act! 🍻

If today's dysfunctionally fractured Congress can agree on anything on a bipartisan basis, it must be a good idea.

Raise your glass to the Creating Hospitality Economic Enhancement for Restaurants and Servers (CHEERS) Act, which Reps. Darin LaHood (R) and Steven Horsford (D) recently introduced.

The CHEERS Act would provide tax incentives for bars, restaurants and entertainment venues to install energy-efficient keg and tap systems. The goal is to help stabilize and revitalize hospitality establishments, which are still struggling years after the pandemic.

The 4th nominee for the Worst Employer of 2024 is … the repulsive raisin-maker

National Raisin has agreed to pay $2 million to settle an EEOC sexual harassment and retaliation lawsuit that the agency filed on behalf of a class of female agricultural workers, many of whom only speak Spanish.

According to the EEOC's lawsuit, National Raisin subjected its female fruit sorters to "widespread" sexual harassment perpetrated by a male supervisor, which included:

Does DEI training create a hostile work environment?

"You can't force me to sit through DEI training! I'm White. It creates a racially hostile work environment."

That's what one employee recently argued in a racial harassment lawsuit he filed against his employer, a state department of corrections, which had mandated DEI training for all employees.

The 10th Circuit Court of Appeals affirmed the dismissal of this lawsuit, concluding that this training could not constitute a hostile work environment because it only occurred one and lacked any race-based ridicule or insults.

But all is not roses for employers and their efforts to offer DEI training to better their workplaces. 

It’s past time to self-regulate your use of noncompete agreements before the government does it for you

Boston Beer Co., the brewer of Sam Adams and other craft beverages, is taking heat for its overuse of noncompete agreements. In a recent article, the Boston Globe cites examples of several former lower-level Boston Beer employees forced out of the industry they love because of the noncompete agreements their former employer forced them to sign at their time of hire.

Legally speaking, to be enforceable a post-employment restrictive covenant must be narrowly tailored by time, geography, and a reasonable business interest worthy of protection. Yet, like the Boston Beer example, all too often employers require many too many employees to sign overly broad and overly restrictive agreements. It's bullying and a scare tactic. It's also legally unsupportable. And it's also why the federal government and many states are looking at regulatory and legislative solutions to limit their use.

WIRTW #710: the “if it ain’t broke…” edition

If you have a child applying for college this year, you know the pain that we are currently feeling. This year, Congress decided to change the process to apply for federal financial aid. The changes to the FAFSA ("Free Application for Federal Student Aid") were supposed to make applying for financial aid easier. Instead, it has caused delays, uncertainty, and stress. 

Under the former system, students would have already received their offer letters from the colleges and universities to which they had been admitted, including the full breakdown of all financial aid and the net cost of attendance. That "net cost" is what enables us to make apples-to-apples comparisons of schools and to help our high-school seniors make an informed decision about the best academic, social, and financial choice. 

Instead, the Department of Education has struggled to process the information it has received under this new process. As a result, the DOE has not yet even started providing FAFSA information to colleges and universities, which, in turn, are scrambling to assure students that they will know their financial aid packages and cost of attendance before freshman orientation.

Congress, we know how dysfunctional you have become. You can barely agree on what should be your most core function — legislation to keep our government open — let alone meeting our nation's more pressing needs such as funding for Ukraine, immigration reform, or protecting women's productive rights. Then again, given how you've botched what should be the lowest hanging of fruit when you actually do something, I'm not sure you're actually qualified to govern anything.

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

 

It’s long past time to Ctrl-Alt-Del the FLSA

The Fair Labor Standard Act is not a good law because employers have zero hope in complying with it.

I know this fact is true because I just read Bradford v. Team Pizza. In that case, the 6th Circuit rejected both the employer's and the plaintiffs' interpretation of the FLSA and punted the case back to the district court to interpret the statute instead.

Spoliation is BAD

Pro tip: it's really, REALLY bad to destroy evidence in your case.

Case in point: Jones v. Riot Hospitality Group, which the 9th Circuit just decided.

President Biden’s proposed 2025 federal budget offers a lot for employers to chew on

If you want to learn about a government's priorities, trace the money. 

President Biden's proposed federal budget for FY 2025 contains significant funding that would impact the workplace.

WIRTW #709: the “opener” edition

My home, and this Friday space, have been consumed by music for the past few weeks. The 27th and final Tri-C High School Rock Off has come to a close. Norah played a killer set of 2 originals — Potential Spam (which Cleveland.com reporter Malcolm X Abram called "a cool near-shoegaze original") and Boys Like You — and 2 covers — a PG-rated You Oughta Know that included an Alanis singalong that filled the Rock Hall's glass pyramid and Jefferson Airplane's White Rabbit. I loved every second of watching her completely own that massive stage and crowd. You can tell that she's living her best life. Norah did not win or place in the top 3, but that's not what truly matters, is it?

You can watch her full set here.

The Rock Off might be over, but Norah's 2024 of music is just getting started. There are gigs at venues all over town, a music festival appearance in August, and, on May 19, she'll be the opening act for Rhett Miller of the Old 97's when he plays at the Music Box Supper Club. Given that Norah first sang with Rhett 10 years ago, it will be a fitting full-circle moment to cap her K–12 years less than 2 weeks before graduation. Tickets are on sale now. 

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

I ❤️ being a lawyer

I ❤️ being a lawyer. It presents something new and different each day, with each day offering an opportunity to learn.

For example, yesterday I read the 6th Circuit’s decision in Jones v. Producers Service Corp., which asked this question: "Under § 207(f) of the FLSA, when do an employee's job duties 'necessitate' irregular hours?"

“DEI” is not a 4-letter word

"DEI" is not a 4-letter word … no matter what some people want you to believe.

Companies such as Sherwin-Williams are scrapping their internal use of the words "Diversity," "Equity," and "Inclusion," and are replacing them with words such as "Belonging" and "Culture."

WIRTW #708: the “boys like you” edition

Tomorrow night, I'll be at the Rock & Roll Hall of Fame trying not to be a nervous wreck during the finals of the Tri-C High School Rock Off. The reality, however, is that no matter the result's, Norah has already won. 

She advanced to the finals, joining 11 of the best high school rock bands in the country in one the premium events for high school musicians nationwide.

She got great, constructive feedback from the panel of music industry people that judged her semifinal round, and will do so again in the finals.

She's received some great recognition and press (including recording an episode for the Rockin' the Suburbs podcast that aired earlier this week). 

And she went into the studio at Tri-C to record a song for the Rock Off's compilation album. "Boys Like You" — a jangly piece of acoustic power pop that will get stuck in your head — released today. You can listen to it here.

Rock Off tickets are still available for purchase (code: norah), but don't wait too long. This event is always a sell-out. 

If you're attending, Norah plays at 7:10 pm. If you're not attending but want to know where else you can see her play, click here for a full list of her gigs. (Pay close attention to the one on May 19 … it's a biggie.)

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

When dealing with the FLSA, “administrative” may not mean what you think it means

It's really unfortunate that when Congress, in 1938, enacted the Fair Labor Standards Act it chose the label "administrative" for the law's broadest white-collar overtime exemption. That one word has caused more misunderstanding, confusion, litigation, and legal fees than any other word in the FLSA.

"Administrative" does not mean any employee who performs office or other non-manual work. Instead, it means any employee who earns a minimum salary of $684 per week AND who performs office or other non-manual work for which the employee's primary duty: (i) is directly related to the management or general business operations of the employer or the employer's customers; and (ii) includes the exercise of discretion and independent judgment with respect to matters of significance.

These issues were just front and center in Blackstone v. Dearborn Life Ins. Co.

IVF discrimination = sex discrimniation

With in vitro fertilization all over the news for the past week, it's time for this important public service announcement — IVF discrimination = sex discrimination.

Courts have long held that Title VII's definition of "sex" (as expanded by the Pregnancy Discrimination Act) unequivocally includes infertility treatments.