Location tracking of employee raises interesting legal issues

In an effort to dial back its current work-from-home culture, PricewaterhouseCoopers will start tracking where some of its employees work. It will start requiring its UK employees to spend a minimum of 3 days per week in the office and will use location data to manage their in-person attendance.

While there is nothing per se illegal about tracking employees in this manner, but I question whether it's a good HR practice. Indeed, there's quite the creep factor. How much will your employees mind Big Brother tracking all of their movements, and how will it impact morale?

And there still are some legal risks.

WIRTW #729: the 'mobile' edition

As cell phones have become ubiquitous among teenagers, their impact on student life is undeniable—and not always positive. Numerous studies have highlighted the risks and dangers of cell phone use by high school students:

📲 Mental Health: Research shows that excessive cell phone use is linked to increased anxiety, depression, and sleep disturbances among teens. A study by Common Sense Media found that 50% of teens feel addicted to their phones.

📲 Academic Performance: Studies have found that schools that ban mobile phones see an increase in student test scores, with low-achieving students benefiting the most.

📲 Cyberbullying: According to the Cyberbullying Research Center, 59% of U.S. teens have experienced cyberbullying, much of which occurs via mobile devices.

Given these concerns, it's no surprise that lawmakers are taking action. At least 14 states have enacted laws or regulations restricting cell phone use in schools. These regulations vary from complete bans during school hours to limiting use during specific times like class or exams.

Even though the evidence suggests that curbing cell phone use could lead to safer, healthier, and more academically focused environments for our students, I oppose outright cell phone bans in schools. These bans are a lazy solution to a complex issue.

While I believe that cell phones don't belong in the classroom, I also believe policies that outright bans phones do these kids a grave disservice. These devices are not going anywhere. Once our kids graduate from high school, they will enter college or the workplace with no guardrails on their tech access at all. Instead of taking phones away, we should be giving them the necessary tools to manage their use later in life. Regulate and limit during school hours, instruct on appropriate use, and discipline those kids who break the rules.

Schools should be educating our children on the responsible management of technology. Instead, these prohibitions abdicate that responsibility, kicking the can down the road for universities and employers to handle.

What are your thoughts on cell phone bans in high schools? Is it a step in the right direction, or are there better ways to manage the impact of technology on our youth? Head over to LinkedIn and answer my poll question to weigh in on this important issue.

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

The 8th nominee for the Worst Employer of 2024 is … the dirty dog

If you name your business "Bark If You're Dirty," maybe you get the sexual harassment lawsuit you deserve.

The pet store just agreed to pay $340,000 to settle an EEOC lawsuit that the agency brought on behalf of class of female employees.

The allegations of repeated sexual harassment are for the dogs.

Meteorologist fired for 'sharing recovery journey publicly' raises issues of disability discrimination

"Thank you for going on this journey with me despite the yucky medical stuff I have going on. I'm happy to announce I am 9 months sober!"

That's what local television meteorologist and personality Hollie Strano wrote on her personal Instagram last month. Eleven days later, her employer, WKYC/Tegna, fired her. (The "yucky medical stuff" she referred to is ovarian cancer.)

"I believe the actions of WKYC and Tegna demonstrate the stigma surrounding addiction that so many in our community experience every day," Strano shared after her termination.

I believe this goes beyond stigma; it looks like disability discrimination.

WIRTW #728: the 'season 3' edition

This week marks a first in the three-year history of The Norah and Dad Show — the podcast I co-host alongside my 18-year-old daughter. It's the first episode we recorded in which we both weren't under the same roof.

I was in the study in our home, and Norah was in a study lounge in her college dorm. 

What started as a nice way for me to bond with my teenage daughter has now transformed into a recorded discussion of me keeping up with everything going in the life of my collegiate daughter. I am stoked that she wants to continue recording these shows, and we plan on doing so every two weeks.

You can listen to this week's episode on Apple Podcasts, Spotify, Amazon Music, Overcast, the web, and everywhere else you get your podcasts. And while you're there, hit the subscribe button to make sure you get new episodes delivered to you when they drop every other Tuesday.

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

How many chances does an employee get under a "Last Chance Agreement"?

When is a Last Chance Agreement not a "last chance" agreement? When the 6th Circuit reviews it, apparently.

In Moore v. Coca Cola Bottling Co., the 6th Circuit held that an employee's last chance agreement, signed after the employee tested positive for marijuana, did not bar his subsequent discrimination lawsuit when terminated following yet another positive test.

The LCA stated, in relevant part, "Moore releases and forever discharges the Company … from any and all liability of any kind whatsoever, relating to his employment with the Company, arising prior to the date of this Agreement[.]"

The 80/20/30 Rule is official a zero

The Department of Labor's "80/20/30 Rule" for tipped employees is dead.

That Rule broke down the work of tipped employees into 3 different categories of work:

1. Tip-producing — Work that "provides service to customers for which tipped employees receive tips."

2. Directly supporting — Work "performed in preparation of or to otherwise assist tip-producing customer service work." Think rolling silverware, filling saltshakers, or cutting garnishes.

3. Not part of the tipped occupation — Work that is neither tip-producing nor directly supporting, such as cleaning bathrooms.

This is what allyship looks like

"Please know that there is a more than insignificant chance that a lesbian prepared your food last evening. A gay man might have mixed your drinks. A trans woman may have trained your server to give you such great service. A person who identifies with -- get this -- they/them pronouns may have sat you at your table."

That was just a part of the scathing comment the executive of The Original Vinnie's left on a customer's Google review, which used a gay slur to express his displeasure with the perceived sexual orientation of others in the restaurant during a recent visit.

The FTC's noncompete ban is DOA

It was only a matter of time before a federal court blocked the FTC's noncompete rule, which would have banned virtually all noncompete agreements on a federal level. The odds were high it would be a Texas federal court, and also high that it would be a nationwide injunction.

That's exactly what happened yesterday.

Judge Ada Brown of the U.S. District Court for the Northern District of Texas entered a nationwide injunction blocking the rule from taking effect a mere 15 days before its effective date.

WIRTW #727: the 'college' edition

Saying goodbye is never easy. It's that much more difficult when you leave your child.

Yesterday, we dropped our oldest off at college for the first time.

It's one of those moments that you know is coming but never really feels real until you're in the middle of it. And yesterday I was smack dab in the middle of it. As I gave Norah one final hug and watched her walk away with a mix of excitement and nerves, I felt my own a flood of emotions — joy, nostalgia, and yes, (more than) a little bit of heartache.

I also felt a lot of pride. Pride in the confident adult she has become. And pride in my wife and I for our success in completing one of our most central tasks as parents.

As Norah walked away from us last evening, we were all in tears. She FaceTimed me four hours later to let me know that she was happy and was going to be okay. So am I.

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

The interactive process is a two-way street

The interactive process for disability reasonable accommodations is a two-way street, requiring participation from both the employer and the employee. If either party fails to participate or withdraws from the process, that party will likely lose in a subsequent ADA failure-to-accommodate lawsuit.

A recent case, Wilson v. Dept. of Mental Health & Addiction Services, decided by the 6th Circuit, serves as an example.

Don't weigh your female employees

Local restaurant owner Bobby George — famous for allegedly not hiring Black people, breaking Covid safety rules, and instituting a "Last Supper" boycott of the Olympics in his restaurants — has been charged with nine counts of rape, attempted murder, and kidnapping. The allegations are horrific, and if convicted he'll likely spend the rest of his life in prison.

In reading about his criminal case, something about how he allegedly runs his restaurants caught my attention. Allegedly, he weighs females as a condition of employment and won't hire any who don't fit his "look" — skinny and able to fit into an extra-small t-shirt.

Don't retaliate against unionizing employees

"You're fired!" That's what the Dallas Black Dance Theatre said to its entire company of dancers a mere months after they voted to unionize.

To make matters worse, the employer seemingly admitted its misconduct in a post on its official Instagram page: "It is a decision that DBDT does not take lightly, but one that is necessary to preserve our legacy of professionalism and excellence in dance. Unfortunately, we recently discovered that our dancers engaged in conduct that fails to align with DBDT's standard of performing at the highest level of artistic excellence and violates several of DBDT’s policies."

Discrimination for "religious nonconformity" IS religious discrimination

"Prayer is the exclusive way to prevent Covid infection."

That's what Brad Amos says his bosses at Ramsey Solutions told him after the pandemic started. The company expressly prohibited remote work, and actively discouraged, demeaned, and mocked anyone who believed in other preventative measures such as masks and social distancing.

Amos instead believed in the golden rule — that he should wear a mask and keep his distance as the best way to protect his co-workers and his family. Thus, while at work he kept his distance and kept wearing a mask.

Within four months, Ramsey fired Amos for a "lack of humility" and because he "was not a good fit" … which Amos alleged in his subsequent religious discrimination lawsuit was not-so-subtle code for his failure to submit to Ramsey's religion and religious practices.

WIRTW #726: the 'lobstah' edition

I've been to a dozen concerts this summer. With the exception of Alanis Morissette, each was norah marie. My summer of music comes to end on Sunday when Norah plays her final show before we drop her off at college 97 miles away.

She, and we, will be at Eleventhree Brewing from 3 - 6 pm. The weather is scheduled to be picture-perfect, and the Cousin's Maine Lobster Truck will be serving lobster rolls, lobster tacos, lobster grilled cheese, and lobster bisque. 

Live music + cold beer + lobster + sunshine = a perfect summer Sunday in my book.

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

Don't 💩 where you 🍽️

There's nothing inherently illegal about a boss being in a romantic relationship with a subordinate. There's something very illegal, however, if the boss fires the subordinate after the relationship ends.
That's exactly what is alleged to happened in Nixon v. Kysela Pere Et Fils, Ltd.

The risks in treating inside salespeople as "exempt"

If you employ inside salespeople, you need to pay attention to Su v. Webb Co. 

This case examined whether Webb, a wholesale distributor of plumbing equipment and fixtures, misclassified its 350 inside sales reps under the FLSA as exempt administrative employees, and therefore owed them unpaid overtime.

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.