Tipped wages and sexual harassment

"Are you on the dessert menu? Because you look yummy."

First, ick!

 
Secondly, these are the types of comments to which customers expose servers in the hospitality industry on the regular. In fact, the restaurant industry has more sexual harassment claims than any other industry, with as many as 90% of women report experiencing some form of sexual harassment. In large part, I blame tipped wages.

WIRTW #733: the 'truth is out there' edition

I think I saw an UFO yesterday morning.

 
Like most workdays, I let the dog out at 6:30 AM. When I went to let him back in, something in the dark, pre-dawn sky caught my attention. I saw two brightly lit orbs hovering at an altitude similar to an airplane. I say "hovering" because they weren't still like stars, nor were they flying across the sky like airplanes. There was movement, but it was different—almost as if they were floating. Then, they started to move, oddly and unnaturally, yet in perfect sync. I rushed to grab my phone to record it, but by the time I returned, they were gone.

I have no idea what I saw. It definitely wasn't stars or airplanes—they don't move like that. Could it have been drones? Maybe, but they seemed too high up. Plus, who flies drones at 6:30 AM?

I'm not arrogant enough to believe we're the only intelligent life in the vastness of our galaxy, let alone the universe. But to witness something like that in my little corner of the Earth? I'm not sure what to make of it. I'm not prepared to say I saw a UFO for certain, but I'd like to think I did.

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

Why?

"Jon, why do you post all this stuff about awful things employers do? Aren't you a management-side lawyer and advocate?"

Here's why:

Spying on your sick employees is a recipe for disaster

Do you remember the episode of The Office where Dwight stakes out Oscar's house to see if he's faking a medical condition and committing insurance fraud?

Believe it or not, something similar is happening in real life at Tesla. The managing director and human resources director of one of its foreign gigafactories recently targeted 30 employees on sick leave for home visits. While the HR director claims the visits had "nothing to do with general suspicion," the managing director has a documented history of intolerance toward factory workers who "couldn't get out of bed."

Needless to say, the employees did not appreciate the visits. "You could just tell by the aggression," the HR director said. Employees slammed doors, threatened to call the police, and questioned why the visits weren't scheduled in advance.

Use caution when poaching competing employees

Here are 25 million reasons to be careful when poaching your competitor's key employees.

In a recent federal case, medical device company Cynosure snagged a $25M jury verdict after its rival, Reveal Lasers, and two former sales managers were found to have violated noncompete, nonsolicitation, and nondisclosure agreements.

The result? A hefty price tag for raiding Cynosure's sales and marketing teams.

WIRTW #732: the 'day in the life' edition

How does a college student spend her day these days? Tl;dl: sleep and classes. 

On this week's episode of The Norah and Dad Show, Norah gives us a peak into a day in her life as a college student. We also discuss our brief visit with her last weekend at her brother's victorious soccer game. You can listen via Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and everywhere else you get your podcasts. While you're there, hit the "subscribe" button to make sure you get each new episode automatically delivered to you as soon as it drops.

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

A second Apple Store just ratified a union contract — via The Verge

Cleveland Institute of Music's Tumultuous Era Continues With Contentious Union Vote This Week — via Scene Magazine

How the Next Generation of Managers Is Using Gen AI — via Harvard Business Review

Growth and Impacts of AI Use in the Workplace — via EntertainHR

Why AI is Here to Stay in Legal Blogging — via Real Lawyers Have Blogs

No, not all companies are abandoning diversity, equity and inclusion. Here's why. — via HR Dive

Be Reasonable, People! AI's Impact on Legal Fees — via Attorney at Work 

Is it OK to have sex while working from home? — via Ask a Manager

Working from home is the great social experiment of our age – it's too soon for the state to wade in — via The Guardian

Why would an employee sue his employer for offering him 100% telework as a disability accommodation? — via Eric Meyer's Employer Handbook Blog

FMLA abuse: 5 things this employer did right — via Employment & Labor Insider

What's the Difference Between Internal and External Employee Investigations? — via Workology

Who Is Suing Elon Musk Today? Cards Against Humanity, COME ON DOWN! — via Above the Law

Johnny Cash Becomes First Musician to Receive Statue at US Capitol — via Consequence

BA Report: Midwest Records Production Declines Across All Classes — via Brewbound

Anti-Alcohol Activists Set to Cripple the Beer Industry in 2025 — via Beervana

The 10th nominee for the Worst Employer of 2024 is … the desecrated discriminator

"We were forced to work with 'Nazi sympathizers' who — despite their open and obvious beliefs and frequent racist, antisemitic, xenophobic, and anti-LGBTQ+ comments and discriminatory acts — were retained and even promoted to management."

Those are the claims of 7 current and former employees of a rehab center owned by Executive Recovery Group.

Harassing text messages doom employee's discrimination lawsuit

Derek Blockhus, a United Airlines flight attendant, was fired after sending threatening texts and voicemails to a coworker and former romantic partner. 

His messages included threats like, "You do realize, your dad and all his friends are going to get nudes of you?" and "The situation will get ugly" if she didn't respond. Blockhus sued, claiming his firing must have been because of his disability, age, and FMLA leave.

The 7th Circuit disagreed, affirming that United terminated him for violating its harassment policies, not discrimination or leave interference.

"100% healed" = 100% illegal

The EEOC has sued Navitas Systems for its "100% healed" return to work policy.

The case involves the company's former division controller, who suffered a severe rotator cuff injury and fractured wrist. His doctor cleared him to return to work with restrictions, limiting the use of his injured left arm. Confident that he could still handle all the essential functions of his job with his right arm, he asked to come back to work, despite Navitas's policy. The company, however denied his request and fired him.

"Policies that require an employee to be restriction-free before returning to work run afoul of the ADA," said Miles Uhlar, the local EEOC trial attorney handling the case. "This employee could have performed the essential functions of his position. By strictly applying its '100% release' policy, Navitas violated the ADA."

WIRTW #731: the 'futebol' edition

As we are just about half-way through the high school soccer season, it's a good time to check in on the Lake Ridge Academy Royals. 

When we last left the Royals 11 months ago, they were eliminated from the 2023 state playoff tournament in their district semifinal. This year's senior-dominant team is on a mission, which thus far they are on track to complete. The team is off to a 7-1 start, with their only loss coming to a much bigger and stronger Shaker Hts. squad that is currently a top 7 team in Ohio's D-II. (After a realignment for this school year, Ohio now has five soccer divisions, with schools placed based on size; as result LRA moved from D-III to D-V.)

In D-V, LRA is currently ranked 8th in the state. This weekend, however, brings what is likely their stiffest test of the season, a weekend trip to Toledo for a tournament and a probable finals matchup against the host, 15th ranked Maumee Valley Country Day (a team that I do not believe LRA has ever defeated). Saturday night is also LRA's homecoming dance, and I really hope Donovan and his teammates have a tournament trophy with which to celebrate. 

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

The 9th nominee for the Worst Employer of 2024 is … the miscarriage of justice

Today, I'm adding Troy Corp. to my list of 2024's Worst Employers—and this one hits hard.

According to a recent lawsuit, Michelle Tan-Torres, in-house legal counsel at Troy Corp., discovered that the baby she was carrying had Trisomy 13, a rare and serious genetic disorder. Shortly after, she tragically suffered a miscarriage. Instead of offering support, her employer fired her.

A textbook example of FAFO

When a judge or jury finds your client dishonest, they've decided your fate. If that dishonesty involves lying to the court, your client may never get the chance to face a jury.

A prime example is Deering v. Lockheed Martin, a case recently decided by the 8th Circuit.

Musings on Springfield and national origin discrimination and harassment

We need to talk about the false and xenophobic rumors about Haitian migrants eating cats and dogs in Springfield, Ohio, stoked by a certain Presidential candidate. Schools, universities, hospitals, and even city government buildings have been closed because of threats of violence. And it's reasonable to assume that Haitians legally working in the businesses in and around Springfield are facing unlawful harassment as a result. It's inexcusable.

Per the EEOC, "Title VII prohibits employment discrimination, including unlawful harassment, based on national origin — meaning discrimination due to a complainant's, or the complainant’s ancestors', place of origin. Harassment based on national origin includes ethnic epithets, derogatory comments about individuals of a particular nationality, and use of stereotypes about the complainant's national origin."

Here are 4 tips for all employers to proactively address these issues in your workplaces:

WIRTW #730: the 'permission v. foregiveness' edition

Recently, my 18-year-old daughter, now off at college, told us she was planning to get her nose pierced. Norah didn't just come home with it done; she let us know ahead of time before going through with it. She's an adult and we're not in a position to forbid it. Nevertheless, as parents we appreciated that she cares enough about us that she was upfront about her plans instead of surprising us with it when we see her in a couple of weeks.

This made me reflect on how, in the workplace, we often deal with the balance between asking for permission and forgiveness. My daughter's approach—ahead of time—parallels the best kind of employee-manager relationship. When employees feel comfortable sharing their plans, seeking input, and then moving forward, it fosters trust and mutual respect. Without trust and mutual respect, a workplace cannot function effectively.

Employers can learn from this. Encouraging open communication and a culture of transparency allows you to build stronger relationships with your team. Employees who seek guidance ahead of time are showing respect for their role and their leaders, just like my daughter did with her decision.

In the end, it's all about creating an environment in which asking for permission feels right, and when necessary and appropriate, offering forgiveness can help people learn and grow.

On this week's episode of The Norah and Dad Show Podcast, Norah shares all about the experience. It's available via Apple Podcasts, Spotify, Amazon Music, Overcast, the web, and everywhere else you get your podcasts. While you're there, hit the "subscribe" button to make sure you get each new episode automatically delivered to you as soon as it drops.

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

This is what an illegal plan closure looks like, and the consequences an employer can face as a result

In December 2020, Quickway Transportation made the decision to close one of its distribution terminals after facing a union organizing drive led by Local 89 of the Teamsters Union. The drivers at the terminal, which served Kroger, had voted to unionize, prompting concerns from Quickway's leadership about potential strikes that could disrupt operations at the distribution center. Fearing financial losses from a possible strike, Quickway chose to terminate its contract with Kroger and ceased all operations at the terminal, laying off all drivers at that facility.

The 6th Circuit upheld the NLRB's finding that Quickway violated the NLRA when it closed its Kroger terminal because the closure was motivated by anti-union animus.

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.