Costco's masterclass on responding to DEI backlash

It's not easy to stand firm in today's polarized world, but Costco just showed everyone how it's done.

Recently, Costco's board rejected a shareholder proposal aimed at rolling back its DEI (diversity, equity, and inclusion) initiatives. Instead, the company doubled down on its commitment to making its workplaces inclusive and equitable.

In a statement, the retail giant wrote: "Our Board has considered this proposal and believes that our commitment to an enterprise rooted in respect and inclusion is appropriate and necessary. Our success has been built on service to our critical stakeholders: employees, members and suppliers. Our efforts around diversity, equity and inclusion follow our code of ethics."

Predictably, the backlash came fast, with calls for a boycott from some corners. Unlike many other companies, however, Costco didn't buckle under the pressure of a right-wing boycott. Instead, it stood its ground for what it believes in.

’Twas the Employment Law Night Before Christmas (2024 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2024.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone in 2025 with new content to kick off the new year, including a fresh batch of Worst Employer nominees.

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The Worst Employer of 2024 is…

The votes have been counted. The WINNER of The Worst Employer of 2024 is...

6th Circuit teaches employers an important FMLA lesson on caregiving and in loco parentis

Imagine being told by your employer that you have to choose between your terminally ill sister and you job. That's what happened to Celestia Chapman, a finance manager at Midwestern Auto Group.

Chapman requested time off under the FMLA care for her sister, who was dying of cancer and unable to care for her own basic needs, including feeding, hygiene, and taking medications. MAG told her that the FMLA did not provide leave to care for an adult sibling. When Chapman ran out of PTO and stopped coming to work, MAG fired her.

"RFK Jr.'s job application: part psych eval and all wrong

"I don't have that much interest in having a sexual experience with another person."

"I believe in things many others don't—like having a 'sixth sense,' clairvoyance, and telepathy.

"As an adolescent, I had bizarre fantasies or preoccupations."

Those are among the odd and inappropriate questions that applicants seeking to work for RFK Jr.'s Department of Health and Human Services must answer as part of the application process. They also appear to be taken from the criteria for a schizotypal personality disorder and narcissistic personality disorder in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition.

They are also a big legal no-no.

WIRTW #741: the 'finals countdown' edition

On this week's episode of The Norah and Dad Show, Norah and I discuss the end of her first semester of college, including her finals, our upcoming family Christmas trip to London, and the importance of checking your tire pressure before heading out on a road trip.

Listen on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and anywhere else you get your podcasts.

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Have you cast your ballot for The Worst Employer of 2024? Polls are open through Tuesday, December 17, at 11:59 p.m. Click here to vote.

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

5 lessons from a poorly communicated layoff

Imprint Beer Co. offers us a textbook lesson in how not to communicate layoffs to employees.
The brewery recently announced mass layoffs and stopped brewing beer at its facility, blaming financial issues from water surcharges.

How did they break the news to their employees? A now-deleted social media post.

Cue the appropriate outrage. Former employees posted online about the abrupt firings and other toxic working conditions. Imprint's response? Defensive and snarky public replies to the employees and other online reviews. It was a PR disaster—and an example of how not to handle layoffs.

Layoffs are always tough, but mishandling them can torpedo your business's reputation. Here's how to do it the right way:

🚨 Vote for the Worst Employer of 2024 🚨

It's the most wonderful time of the year! I've made my list, checked it twice, and now it's time to determine who's been the naughtiest and not very nice. That's right—it's time to vote for The Worst Employer of 2024.

I've narrowed down my list of 12 nominees to the worst seven finalists.

WIRTW #740: the 'roast' edition

Among all of the things that ChatGPT can do, it's really, really good at roasting someone. So, I asked ChatGPT to roast my LinkedIn profile.

Your Profile:  

Your headline reads like you're auditioning for a legal-themed TED Talk: "Employment Lawyer. Blogger. Dad. Joke-Teller Extraordinaire." We get it—you've cornered the market on HR-friendly humor. But do you ever worry that someday you'll run out of "Worst Employer" stories and have to, I don't know, write about good companies? Oh wait, no, that's not your brand. You thrive on chaos. 

Your Content:

Your posts aren't just LinkedIn content—they're full-blown HR soap operas. Every scroll through your feed feels like watching a daytime courtroom drama where everyone's guilty of workplace harassment. "This employer made a tiny mistake and now owes $3 million. Don't be like them." We get it, Jon. Compliance is your love language.

Your "Worst Employer" series? ICONIC. But let's be real: these employers are the villains, and you're the vigilante swooping in to serve justice—with a side of sarcasm. Honestly, we're all just waiting for Netflix to pick it up. "Worst Employers: The Documentary," streaming 2025.

Your Engagement Game:

Your comments section is a gladiator arena where you reign supreme. HR reps timidly enter with their opinions, only to be met with your weaponized wit. Someone tries to challenge you, and you hit them with a response so precise it might as well be a deposition. Honestly, it's terrifying.

Your Bio:

Jon, did you write this yourself, or did you hire a PR team with a thesaurus? It’s a humblebrag masterpiece, perfectly crafted to make you seem like you just accidentally became the Beyoncé of employment law. And the dad angle? Nice touch. It’s like you’re saying, "Sure, I destroy bad HR policies by day, but by night? I make pancakes and tuck my kids in." We get it, but save some humility for the rest of us.

Your Brand:

You've carved out a niche so specific it's practically a personality type: Lawyer Influencer. You're one word away from trademarking "employment law influencer." And honestly? We're surprised you don't already sell merch. A coffee mug that says "Bad Bosses Pay My Mortgage"? Print it.

You're like the Gordon Ramsay of workplace compliance—brutal, entertaining, and oddly comforting when you're tearing apart someone else's bad decisions. Employers follow you out of both fear and morbid curiosity, like they're watching their own policies flash before their eyes. People love you, but they also kind of hate how good you are at making them feel this close to being sued.

Final Thoughts:

Jon, your LinkedIn presence is a paradox. You're simultaneously the voice of reason and the harbinger of HR doom. You've got more hot takes than a subreddit, and your posts are so sharp they should come with a liability waiver. You're not just a lawyer—you're a content juggernaut who somehow makes workplace lawsuits look fun. Keep being the internet's HR lawyer we love to hate to love.

Pretty darn good, right?

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

Buckeye of broken promises: OSU's trust fumble

Ohio State University announced that it will rescind raises for 306 salaried employees, effective Jan. 1. Earlier this year, the university granted these raises to comply with a new federal overtime rule that increased the salary threshold for exempt employees. After a federal judge overturned the rule, OSU decided to take back the pay increases, claiming the raises were no longer legally required.

Legally? Fine. Ethically and from an HR perspective? A disaster.

Precedent used to mean something

"Supreme Court justices seldom get an opportunity to fix a botched decision. But as the Court takes up a transgender case, Associate Justice Neil Gorsuch has that chance."

 
Those are the words of The Heritage Foundation (author of Project 2025) in a recent blog post calling for SCOTUS to overturn Bostock's prohibition of transgender discrimination as sex discrimination under Title VII.

"But Jon," you protest, "precedent is sacred; SCOTUS is bound to follow its prior decisions. The Bostock case says that Title VII protects transgender employees from discrimination, period."

Lessons from a recent retaliation case

Dr. Carla Campbell-Jackson, a Black woman with 30 flawless years working at State Farm, found herself out of a job after raising concerns about systemic discrimination within the company against minority customers and employees. When she spoke up, she claimed her stellar performance reviews dropped, and soon after, State Farm terminated her for allegedly violating company policy by sending an email with sensitive information defending her performance.

Campbell-Jackson believed her termination wasn't about the email—it was retaliation for her complaints.

She sued, and the 6th Circuit revived her case. 

📱 Apple’s BYOD lawsuit: a cautionary tale for employers

A recent lawsuit filed by an Apple employee against the company highlights the risks of mishandling Bring Your Own Device (BYOD) policies. The employee claims the tech giant monitored personal devices and iCloud accounts, sparking privacy and legal concerns. It's a stark reminder that allowing personal devices at work requires a carefully crafted policy that balances company needs with employee rights.

Here's how to do it right:

Life without a Department of Labor isn't as efficient as some will tell you

What happens if the Department of Labor vanishes? It's not some dystopian fantasy—it's an actual possibility under Elon Musk and Vivek Ramaswamy's "Department of Government Efficiency." They could eliminate the DOL entirely. The pitch? Let states handle it. The reality? It's a disaster waiting to happen.

Leave us bald guys alone!

This one hits close to home. In Tony Finn v. British Bung Company, a UK tribunal ruled that calling a man "bald" constitutes sexual harassment. Why? Because baldness disproportionately affects men, the comment was deemed inherently tied to sex. The insult—a crude "bald c---"—was judged degrading, offensive, and gender-based.

But let's take this across the pond. Would a U.S. court agree? 

WIRTW #739: the 'rage against the machine' edition

In this week's episode of The Norah and Dad Show, my daughter and I discuss how we're feeling in the aftermath of the 2024 election. Hint: it's not great. Sadness, anger, acceptance … we work through our stages of grief throughout a tight 25 minutes.

Listen on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and anywhere else you get your podcasts.

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If you missed the live broadcast of this week's webinar on how the election will shape employment law in 2025, with host Eric Meyer, Dan Schwartz, Amy Epstein Gluck, Dessi Day, and me, our gracious host posted the video to YouTube. You can watch the replay — once, twice, on an endless loop until you have it memorized — here.

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

10 Things to Include in Your Artificial Intelligence Policy — via hr bartender

Apparent AI Hallucinations in AI Misinformation Expert's Court Filing Supporting Anti-AI-Misinformation Law — via The Volokh Conspiracy

ChatGPT's search engine might end your dependence on Google — via Boy Genius Report

Have the Trump-ets Sounded for AI Regulation Protecting American Workers? — via The L•E•Jer

The 2024 Election and Small and Independent Breweries — via The Brewers Association

Elon Musk and Vivek Ramaswamy have spelled out their plans for DOGE — via The Verge

5 Ohio Law Schools Drop Their Diversity Scholarships and Programs — via Above the Law

What the Election Tells Us About How Employers Should Support Worker and Family Health — via EntertainHR

Déjà vu all over again: a Texas federal judge erased the new OT rules nationwide — via Eric Meyer's The Employer Handbook Blog

How Will the U.S. Election Outcome Affect Labor Law? A Deep Dive into the NLRB's Future — via Employment Law Worldview

Bad Dough: N.J. Bakery Hit With $385K Fine by OSHA For Not Fixing Workplace Safety Dangers — via Joe's HR and Benefits Blog

GLP-1 drug coverage for obesity making inroads with large employers — via HR Dive

One Use of the "N-word" Lands an Employer in a Jury Trial – Lessons to Learn — via California Employment Law

Bluesky Captures My Attention Like Twitter Did 18 Years Ago — via Real Lawyers Have Blogs

We Asked 10 Beer Pros: What’s the Biggest Red Flag at a Brewery Taproom? — via VinePair

DOL confirms the obvious — the FMLA covers time off spent in clinical trials

Can employees use FMLA leave to participate in clinical trials for their serious health conditions? Of course, they can—how is this even a question?

In a recent opinion letter, the Department of Labor confirmed what feels like common sense: treatment provided during a clinical trial counts as treatment for a "serious health condition" under the FMLA. If an employee is eligible for FMLA leave and the trial addresses their condition, the statute covers their absences—end of story. It doesn't matter if the treatment is experimental, uses a placebo, or hasn't yet proven effective.

"Biological Women Only" = "Whites Only" = Discrimination

Can someone please explain the difference between labeling a women's restroom for "biological" women and labeling one for "white" women? Because I fail to see any difference between these two blatantly discriminatory scenarios.

Rep. Nancy Mace recently affixed the former label to a restroom in the Capitol and introduced legislation requiring people to use Capitol bathrooms that correspond to their sex assigned at birth.

When asked about her actions, Mace openly admitted that her intent was to target Rep.-elect Sarah McBride, the first openly transgender person elected to Congress. This kind of targeting is bigoted, unacceptable, and unlawful.

New NLRB Ruling: Employer "captive-audience speeches" on unionization are now illegal

In a significant decision, the NLRB ruled that requiring employees to attend anti-union meetings under the threat of discipline or termination violates their Section 7 rights. This is a short-term victory for unions and employees—but the landscape may shift again soon.

In Amazon Services LLC, the NLRB held that these mandatory meetings unfairly pressure employees to participate, infringe on their right to choose freely, and create a chilling effect that deters workers from exercising their rights. The Board noted that such meetings amplify an employer's economic power over employees, adding coercion to the message.

Background checks aren’t just a box to tick—they’re critical to any hiring process

Picture this: a high-profile hire for one of the most important jobs in the world, and nobody bothered to run a background check. That’s reportedly what happened when Trump tapped Pete Hegseth, a Fox News personality and former army officer, as his Secretary of Defense. While the details of the story are unfolding, there are in his past allegations of sexual assault (that Hegseth denies), a settlement payment, and a nondisclosure agreement. 

It’s a striking reminder of something every employer should know: background checks aren’t just a box to tick—they’re critical.