Long live Anchor Brewing! We'll have to wait and see about its labor union. ⚓ 🍻

News broke earlier this month that Hamdi Ulukaya, the billionaire founder of Chobani yogurt, purchased the assets of Anchor Brewing after its former owner, international beer conglomerate Sapporo, had unexpectedly shuttered the brewery nearly a year ago. Anchor was one of the country's few unionized craft breweries. Ulukaya has said that he would hire back as many former employees as possible but didn't know whether the union would be part of his new operations. If he hires enough of the former employees, however, he may not have a choice on the union. That issue will depend on whether Ulukaya's Anchor Brewing is a "successor" of Sapporo's Anchor Brewing.

Call me … maybe? 6th Circuit saves FMLA claim of employee who failed to follow employer's call-in rules.

Latrice Crispell, a 23-year employee of FCA working as a floater on its truck assembly line, suffered from major depression and anxiety, which qualified her for intermittent leave under the FMLA. FCA had a strict 30-minute call-in rule, requiring employees to notify their supervisors of any absence at least 30 minutes before their shift, or later with a statement explaining the missed call-in.

Crispell struggled to comply with that rule during severe flare-ups of her condition, which she argued made it impossible for her to call in on time and made her absent or late 15 times during the final three months of her employment. Despite submitting explanations and a doctor's note about how her illness made it impossible for her to comply with the 30-minute rule during flare-ups, FCA disciplined and ultimately terminated her.

Despite the employee failing to meet FCA's call-in requirements for her intermittent leave, the 6th Circuit reversed the trial court's grant of summary judgment to the employer. 

It was the best of opinions; it was the worst of opinions…

Today, the EEOC's regulations interpreting the Pregnant Workers Fairness Act go into effect. Thanks to two very recent federal court opinions from two different federal courts, however, it remains an open issue as to whether the EEOC can enforce those parts of its regulations that require employers to reasonably accommodate employees' elective abortions not necessary to treat a medical condition related to pregnancy.

The 7th nominee for the Worst Employer of 2024 is … the murder threatener

"I'm going to kill you."
"You're a dead man."

That's what Mario and Jaime Lopez, two of the owners and managers of Bianco Rosso, (allegedly) told one of their restaurant's former employees when confronting him at his new job. The issue that made them so mad? A Department of Labor investigation into management stealing from the tip pool.

According to a recently filed DOL lawsuit, Bianco Rosso and its three owners, Cristina Ramirez and the Lopezes, engaged in unlawful retaliation against employees who participated in the DOL's investigation.

Just because you only use the n-word on your personal TikTok doesn't mean your employer can't fire you for it.

Until yesterday, I had never heard of a "trad-wife" or of Lilly Gaddis.

A trad-wife is a burgeoning trend of women embracing traditional gender roles and lifestyles of the 1950s. Gaddis is an adherent of the lifestyle and promoter of its beliefs on social media.

In a viral TikTok video, Gaddis (white) used the n-word to describe her friends' husbands. Her employer quickly fired her and released a statement about her termination and upholding its values of diversity, inclusivity, respect, and equality.

As seen on Reddit: payment for training time

As seen on the legaladvice subreddit:

"My company just told us about a new policy where any meeting or training that is held over the lunch hour where food will be provided is unpaid. Some of these lunch meetings are optional trainings, but some are mandatory department meetings. Is it legal for the company to deny pay for time spent at these meetings just because lunch is provided?"

Answer: It is not legal, and the time employees spend during those lunch meetings must be paid.

An update on one of 2023's Worst Employers

Q: What do you win for coming in 6th place in 2023's Worst Employer contest?

A: 20 years in federal prison.

That's what Stavros Papantoniadis, the owner of Stash’s Pizza, is potentially facing after a jury convicted him on three counts of forced labor and three counts of attempted forced labor.

A ruff reasonable accommodation claim

Samantha Howard worked as a pharmacist for Boswell Regional Health Center. She suffers from Type I diabetes along with hypoglycemic unawareness, which prevents her from knowing when her blood sugar dangerously drops. To help manager her blood sugar, she requested a diabetic-alert service dog as a reasonable accommodation. The employer, however, denied the request because of hygiene concerns and risk of contamination to sterile work areas.

The 8th Cir. Court of Appeals heldheld that the employer had lawfully denied Howard's accommodation request for two key reasons: (1) she had performed her essential job functions for more than a year, and therefore the accommodation was not necessary; and (2) the employer had valid and legitimate concerns about contamination and risks to the sterility of the work environment.

WIRTW #720: the 'Azores' edition

Last summer, my family and I fell in love hard with Portugal. So, this summer we are going back, sort of.

In a little over three weeks we leave for the Azores, an autonomous region of Portugal. It's a subtropical archipelago of nine islands known as the "Hawaii of the Atlantic." 

We'll be on São Miguel, the largest of the islands, choosing to explore that one island in depth over the span of 8 days instead of hopping between islands and only getting a smaller taste of several. It's renowned for its stunning landscapes, which include green hills, crater lakes, and ocean-side miradouros (viewpoints), volcanic hot springs, black-sand beaches, marine life, and cows. (In fact, there are twice as many cows on the island than people.)

For any of you who've been to São Miguel, what are your must-sees and must-dos? What are your favorite hikes? What off-the-beaten-path sights are worth our time? Which tours do you recommend? How about some A+ restaurant recommendations?

Thanks in advance for playing tour guide for me. I'll reward you with pictures and stories after my return.

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

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Why we fought.

Some numbers to consider on June 6, 2024, the 80th anniversary of D-Day:

75 million: the number of people who died during WWII.

420,000: the number of American casualties during WWII.

5,000: the number of American soldiers wounded on D-Day.

2,501: the number of American soldiers who died on D-Day.

151: the number of days until Election Day. 

Remember those who fought and died on that beach in Normandy, France, when you vote on November 5, 2024. Some of us envision an America more closely aligned with the values we fought against from 1941 – 1945 than those we fought to save.

Please don't forget the "human" in human resources

"How about just being a human being in a situation like this!"

"Find a way to help her, be a human being!"
"Can we please prioritize the human aspect of the workplace?"
"Gee, imagine if they'd been just a tiny bit empathetic."
"C'mon, be a mensch."

Those were just a few of the LinkedIn comments to this week's post about the employee denied a reasonable accommodation upon her return to work from cancer surgery.

Context, not "magic words," is what matters in judging reasonable accommodation requests, 6th Circuit says

"I'm struggling and need some time to get back to normal. Working 53 hours my first week back is hard for me physically."

That's what Mary Ellen Yannick, a bakery department manager at Kroger's, told Marli Schnepp, her store manager, within a week of Yannick's return from a four-month leave of absence following breast-cancer surgery.

In response, and instead of discussing with Yannick a reasonable accommodation, Schnepp told her that "business was business." If she couldn't hack it, Schnepp told her, she'd have to step down. That's exactly what Yannick did, transferring to a lesser position at another store. She also sued.

WIRTW #719: the 'pomp and circumstance' edition

Tomorrow, Norah, will graduate from high school. Earlier this week, we attended the Senior Brunch, an annual tradition at her school celebrating the graduating seniors. At the end of the ceremony, Norah took possession of her time capsule, a thoughtful project that the mom of one of her fellow classmates organized from kindergarten through 7th grade. That mom held on to them for 12 years. Now, Norah has it. 

That night, we sat around the kitchen table after dinner and opened each of the envelopes. Contained within the kindergarten envelope was a letter I wrote to future Norah for her high school graduation.

Here's what I wrote.

May 29, 2012

Dear Norah,

We've watched you grow so much as a person and as a student during your kindergarten year that I am not sure exactly who will be reading this letter 12 years from now. What I do know is that you will be the same loving, compassionate, empathetic, confident, smart person you are today, just with 12 added years of maturity.

I know that your mom and I will be proud of the young lady you will have become, and all that you will have accomplished as we prepare to send you off to college. I know that we will trust you to continue to make the good, wise decisions that have served you well to this point in your life. I know that whatever you do, and whatever choices you make, we will be proud of you and support you. And never forget that no matter what, you will always be our little girl.

Most of all, I want you to know that we love you very much and we are always here for you. Now go do great things, like you always do.

Love,

Daddy

The thing is, if I was writing that letter today it would say much of the same. 

Now excuse me while I go find a tissue. These "allergies" are murder on my eyes.

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

"Why would you want a man's job?" = big job interview no-no, says EEOC in lawsuit

"Why would you want a man's job?" Why do you want to take a job away from a man?"

Those interview questions are at the center of a lawsuit the EEOC filed against Waste Industries, a solid waste removal, recycling pickup, and landfill operation business.

The 6th nominee for the Worst Employer of 2024 is … the racist recruiter

"Only U.S. Born Citizens [white] … [Don’t share with candidates]."

That's the text of a job listing that an Arthur Grand Industries recruiter posted on Indeed.

WIRTW #718: the ‘fireflies' edition

"Do you want to bring a backup guitar with you?"

That was the question I ask my daughter as we load up the car to leave for her Sunday-night gig opening for Rhett Miller.

"No," she responds. "I'll be fine with just my main guitar."

Flash forward to 7 pm that night. "Please give it up for norah marie!" And guess what? No sound from her guitar. Not one single amplified note. As it turns out, the guitar had a dead battery. After a few minutes of down time to swap dead for live — which included a very kind and gracious Rhett offering Norah his own guitar to play during her set — she was up and running. 

Despite the glitchy start, Norah was great as always. 

You can watch the (edited) video of her whole set here, or just the clip of her singing Rhett's song, "Fireflies," with him, which includes a sweet story of Rhett's own technical glitch when he was a 17-year-old opener for Rosanne Cash.

I know I'm fighting a losing battle when I offer dad advice to a stubborn 17-year-old, but I can continue to try, right?

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

Should jury verdict forms in discrimination cases include the McDonnell Douglas factors?

Jury trials are often won or lost based on the instructions and verdict forms the court provides the jury.

Jury instructions outline the legal standards that the jury must use to decide the case. Verdict forms allow the jury to record its decisions on the issues in the case and typically include specific questions that the jury must answer reflecting their findings on claim.

In Craddock v. FedEx Corp. Servs.Craddock v. FedEx Corp. Servs., the plaintiff — a Black woman fired after an altercation at work — complained on appeal about an alleged inconsistency in the jury's verdict.

Prompt engineering tips for generative AI

Innovate or die. I held out long enough, but it's time for me to learn how to use ChatGPT and incorporate it into my legal practice. That was one of my biggest takeaways from the Mackrell International Annual General Meeting earlier this month.

What does one do when one wants to learn how to effectively use ChatGPT? Ask ChatGPT! Here's the prompt I used: "I'm a lawyer conducting research on employment law. Can you give me the top 6 prompt engineering tips to optimize my results on ChatGPT?"

Here's what ChatGPT recommends:

It's illegal to deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender

Can an employer-sponsored health plan legally deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender?

According to the 11th Circuit Court of Appeals in Lange v. Houston Cty., the answer is an unequivocal "No, it cannot!"

It's 100% legal to close your business to avoid a labor union

"We have some sad news to share. A process that began last year has reached its conclusion. Today was the last day of service for both cafes of the Wydown, which are now permanently closed." 

That sign hung on the door of both Wydown Coffee Bar locations late last week.

What's so newsworthy about two cafes closing? What if I tell you that the closure happened just five days before their 35 employees were set to vote on unionization?

The employees steadfastly believe that the cafes closed to avoid a labor union. The owners deny their claim and say that they were merely "ready for a change."