WIRTW #725: the 'sandwich' edition

It's been a crazy month. We spent last weekend helping my parents unpack and organize their new apartment in the senior living community to which they just moved. In less than two week we move my daughter into college. Meanwhile, I'm also in the midst of taking and defending a dozen depositions in a contentious piece of litigation, while also managing my busy employment law and beer law practices.

I'm a card-carrying member of the sandwich generation.

The "sandwich generation" refers to individuals who are simultaneously caring for their aging parents while supporting their own children. We are "sandwiched" between the older and younger generations, often facing significant emotional, financial, and physical demands as we manage the dual responsibilities of caregiving and parenting. The term highlights the unique pressures and challenges we experience as we strive to balance family, personal, and work needs.

Employers, you have employees who join me in the sandwich generation. The question is what are you doing to support them? Here are five suggestions.

1. Flexible Work Schedules: Allow employees to adjust their work hours or work remotely to accommodate caregiving responsibilities.

2. Paid Family Leave: Offer paid leave for employees to care for sick or aging family members.

3. Employee Assistance Programs: Provide access to counseling, support groups, and resources for managing stress and caregiving challenges.

4. Caregiver Support Resources: Offer information and resources on eldercare services, childcare options, and caregiving best practices.

5. Work-Life Balance Initiatives: Promote a culture that values work-life balance and encourages employees to take time for themselves and their families.

By implementing these strategies, employers can help alleviate some of the pressures faced by employees in the sandwich generation, leading to improved job satisfaction, productivity, and overall well-being. It will also you from losing quality employees who will seek more supportive workplaces.

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

Off-duty social media is just as actionable as sexual harassment as on-duty misconduct

"An employer cannot be liable for what an employee posts online while off-the-clock. Personal time is personal time; it's irrelevant to the workplace." That is an 100% incorrect statement of the law, according to the 9th Circuit Court of Appeals in Okonowsky v. Garland.

Linda Okonowsky worked as a staff psychologist in a federal prison. She discovered that a lieutenant with whom she worked operated an Instagram account followed by more than 100 prison employees, which contained overtly sexist (and racist, anti-Semitic, homophobic, and transphobic) content. It also contained offensive content about the workplace and horrible content that specifically targeted her, including one about the male staff "gang banging" her.

When she complained to the prison's safety manager, he told her that she needed to "toughen up" or "get a sense of humor." It took months of complaints and escalating social-media awfulness before the prison finally took action.

Bevisförstöring is not the name of an IKEA bookcase; it's Swedish for spoliation of evidence.

A federal judge recently ordered IKEA to pay $566,731.53 in attorneys' fees and costs as a part of sanctions for deleting employee emails in three consolidated class-action age-discrimination lawsuits.

Here's what happened. In April 2022, the court ordered IKEA to produce the email files of its chief human resources officer, global head of DEI, several store managers, and its recruitment manager. This production was to occur on a rolling basis and be completed by the end of 2023.

IKEA failed to produce a single email. In fact, it couldn't produce any emails because they had been deleted years earlier, after already being part of an earlier production order—a fact IKEA hid from the court and opposing counsel for months.

"DEI hire" is the new N-word.

After President Biden dropped out of the 2024 campaign and elevated his Vice President, Kamala Harris, as the presumptive Democratic nominee, supporters of Donald Trump started attacking her as a "DEI hire."

For example, during an interview with CNN’s Manu Raju, Republican Rep. Tim Burchett said this: "100 percent, she was a DEI hire." He's not only one pushing this narrative.

When one person calls another a "DEI hire," they mean they are unqualified, unskilled, and hired only because of their race. They say it because they cannot say publicly what they really want to say. 

What does Project 2025 mean for employers? Labor law edition

Today is the 3rd and final part of my series on what Project 2025 means for employers. Today, I examine its proposed impact on the National Labor Relations Act and union-management relations. (You can find parts 1 and 2 here.)

Project 2025 proposes the following seven key changes to the NLRA:

What does Project 2025 mean for employers? Wage and hour edition

In part 2 of my series on what Project 2025 means for employers and employment law, let's examine its proposed impact on wage and hour laws.

You'll find part 1, covering workplace discrimination laws, here.

Project 2025 proposes the following 5 key changes to the FLSA:

What does Project 2025 mean for employers? Discrimination edition

I promise this post is not political … but we do have to talk about Project 2025.

Project 2025 is an initiative organized by the Heritage Foundation aimed at preparing for a conservative presidential administration after the November election. Its goal is to promote conservative policies and ensure that the right personnel are in place to implement those policies from day one of the administration. Some call it a utopian dream, others (🙋‍♂️) an authoritarian dystopian nightmare.

Regardless of where you fall in this philosophical political debate, Project 2025 contains a lot of information of interest to employers — specifically, what changes they could expect to labor and employment laws in a second Trump administration.

WIRTW #724: the 'summer' edition

Our summer is sadly winding down. Vacation is over. I have one kid leaving for college in less than four weeks, and other starting his high-school sophomore year a week later. So, I'll be trying to spend as much time with my kids in the coming weeks as possible. This includes enjoying my daughter's final few gigs of a very busy music summer.

If you want to catch norah marie gigging before she heads off to college, these are your final five chances.

• July 20 @ 6:30 pm — Crocker Park
• July 25 @ 6 pm — 8th Day Brewing
• Aug 2 @ 6 pm — The Olde Wine Cellar
• Aug 3 @ 3 pm — Vibin' in the Vines Festival
• Aug 11 @ 3 pm — Eleventhree Brewing

All events are free. And, if you happen to know of a brewery, winery, coffee shop, or other venue in central Ohio booking live music, please let me know. 

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Here's what I read and heard that you should, too.

"Do as I say, not as I do" — HR leader fired for harassment loses discrimination lawsuit

A female HR supervisor attends an out-of-town leadership retreat with some co-workers. They observe her at the hotel bar telling off-color jokes, directing repeated profanity at employees who refused to drink alcohol, and toasting a slur for the female anatomy.

Several complain to her boss about the inappropriate behavior. The company investigates and ultimately fires her for violating its harassment policy.

The HR supervisor then sues for sex discrimination, claiming that the company did not fire a male employee who engaged in similar misconduct. Specifically, she claims that he had once asked her "if the carpet matched the drapes" (which she advised the company during its investigation).

Discrimination liability for "agents" extends to AI vendors, says federal court

Can an HR software vendor be held liable for the alleged discriminatory hiring decisions of its customers? According to one federal court, the answer is yes.

Derek Mobley — a Black man over the age of 40 who suffers from anxiety and depression — alleges that he applied for 80-100 positions since 2018 that use Workday as a screening tool … and has been rejected every single time despite his qualifications.

Mobley claims that Workday's artificial intelligence unlawfully favors applicants outside of protected classes through its reliance on algorithms and inputs influenced by conscious and unconscious biases.

Last week, the federal judge hearing Mobley's claim rejected Workday's efforts to dismiss the lawsuit on the basis that it was not Mobley's "employer" and thus the workplace anti-discrimination laws do not cover its actions in this context.

Refusing to participate in mandatory training isn't "protected activity," it's insubordination

"I am not taking this training because it's a joke … making non-white colleagues all victims and turning white colleagues … into villains."

That's what Charles Vavra wrote in an email to the HR Director of Honeywell International, his now former employer, after she had reminded him of the company's requirement that he complete its unconscious bias training.

Over the next few weeks, the HR Director and other company officers tried to convince Vavra to complete the training. Vavra's response? "Whatever the consequences … I will accept." The consequences were Vavra's termination.

Vavra had a strange way of showing his acceptance of those consequences. He sued Honeywell for retaliation, claiming that his opposition to mandatory DEI training constituted protected activity under Title VII.

WIRTW #723: the 'A Portuguesa' edition

I love to travel for two primary reasons: to see things and to experience things.

On my vacation to São Miguel in the Azores Islands, I saw lots of amazing things — beautiful coastal viewpoints, crater lakes from both their rims and from inside, bubbling volcanic baths, dolphins, whales, waterfalls, cows (so many cows), and lush green landscapes.

But one experience will stick with me as the standout memory of this vacation.

Portugal was playing France in the quarterfinals of the Euros. Since we a) are a soccer-loving family; and b) were in Portugal, we couldn’t pass up the opportunity to watch the game with the locals.

We gathered in the Campo de São Francisco in the capital city of Ponta Delgada, where the local government had set up a large viewing screen. More than a thousand football crazy Azoreans joined us. It was special.

The crowd rose and fell with the highs and lows of what ended up being a 0-0 draw that went to penalties. While the match didn’t end how we wanted, the experience will live with me forever.

Here's a quick snippet of the crowd singing the Portuguese national anthem, A Portuguesa, pre-match.

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

What is "implicit bias" and how to combat it in your business

Dwight Jackson, a Black man, claims that the Shinola Hotel denied him a job interview because of his race. He knows this, he says, because he reapplied for the same job at the same hotel with the same resume ... with one key difference. He changed his name to John Jebrowski. While the hotel didn't offer Jackson an interview, it did offer one to Jebrowski. That, Jackson says in his recently filed lawsuit, is race discrimination.

Inherent bias refers to the attitudes or stereotypes that unconsciously affect our understanding, actions, and decisions. These biases can silently influence hiring decisions, leading to discrimination based on characteristics such as race. Name bias is one example of how inherent biases manifest themselves.

WIRTW #722: the 'Até logo' edition

I'll be back with a fresh spirit and fresh content on July 10. This lawyer is officially on vacation.

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

This is why you train your management on how to respond to workplace harassment

During Joyce Morgan's employment at Convenient Food Mar, her co-worker, Todd Wise, subjected her to sustained and prolonged sexual harassment. Morgan complained to both her shift leader and the store manager. When they did nothing, she then complained to the store manager's supervisor. Despite her repeated complaints about Wise and the harassment to which he subjected her and others, no one at the company ever did anything. She ultimately resigned and sued.

Following a jury trial and a verdict in her favor, Morgan won a $221,688.56, which included compensatory damages, punitive damages, and attorneys' fees.

Temporary impairments as ADA disabilities

Does recovery following surgery qualify as a "disability" under the ADA? Well, it depends.

Consider, for example, the recent court of appeals decision in Long v. KeltanBW. Long worked as a floating teacher in a daycare center owned and operated by KeltanBW. Less than one month after starting her job, Long took time off for liposuction surgery. Upon her return to work eight weeks later, the employer assigned her to the preschool rooms to accommodate her temporary post-surgery lifting restrictions. Within a couple of months, however, KeltanBW fired her for poor attendance. 

Long sued, claiming disability discrimination.

Which of the Ten Commandments allows for a reasonable accommodation?

"What do you say to teachers who don't share your religious views?"

 "Don't look at it."

That was the exchange between CNN's Boris Sanchez and Louisiana State Representative Lauren Ventrella, co-author of that state's new law which mandates the display of the Ten Commandments in every public-school classroom.

First Amendment issues aside (and there are BIG First Amendment issues here), what happens when teacher of a faith that doesn't believe in the Ten Commandments or who is an atheist objects to the display in their classroom and asks for a reasonable accommodation under Title VII?

WIRTW #721: the 'Left of Boom' edition

Being as active as I am on social media has allowed me to amass some pretty cool friends over the years. I recently had the chance to sit down with two of them virtually, Phil Wilson and Mike VanDervort, on their The Left of Boom Show. We discussed all things going on in the world of labor relations, including Starbucks, 10(j) injunctions and the Supreme Court, the future (or lack thereof) of Chevron deference, and Anchor Brewing.

You can watch or listen here, and also via Apple Podcasts, Spotify, or wherever else you get your podcasts.

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

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.