Coronavirus Update 7–21–2021: Employers, now is the time to ready your back-to-school plans

Children nationwide are getting ready to go back to the school for the 2021 – 22 school year, the third school year students and their parents will be living and dealing with, Covid-19.

Here's what we know about what this school year will look like.

When protected concerted activity isn’t protected

Netflix has fired three marketing executives for criticizing their co-workers over Slack. According to The Hollywood Reporter, "the executives in question thought the messages were private. An insider says an employee stumbled across several months’ worth of these messages and reported it."

An adverse jury verdict is just a number on a piece of paper

Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.

The facts were not great for Walmart. 

Coronavirus Update 7–16–2021: Ohio prohibits schools from mandating the Covid vaccine

Ohio currently requires that students receive each of the following vaccines (subject to medical or religious exceptions) as a condition of attending school: diphtheria, tetanus, pertussis, polio, measles, mumps, rubella, hepatitis B, chickenpox, and meningococcal.

The one vaccine that Ohio schools can no longer mandate as a condition of attendance or participation in activities? The Covid-19 vaccine.

There’s nothing illegal about paying employees a “day rate,” as long as you also pay an overtime premium for overtime hours

Here's how the president of Fusion Japanese Steakhouse describes the manner in which his company (unlawfully) pays its kitchen staff:

I pay a teriyaki chef $120 per day. He worked ten hours—ten hours a day. So here’s how to calculate it. He works ten hours a day at $120 a day. I divide it by hours, and it’s $10.97 per hour. If he works overtime, it will be $16.20 overtime pay. So $120 a day, I have it covered because it was way past—way beyond $7.25 minimum wage rate. So I take consideration of the industry standard, you know. So either it is for teriyaki chef, it is $120 or $120 per day.

In other words, as the court correctly surmised in Walsh v. Fusion Japanese Steakhouse, the employer "works backward to calculate the hourly rate of the employees based on the day rate." That backward calculation, however, to jerry-rig an hourly rate plus and overtime rate to arrive at the agreed-upon day rate, is not legal.

The 10th nominee for the “Worst Employer of 2021” is … the transphobic terminator

Kimberly Grinage was born male but identifies as a transgender woman. That fact presented a huge problem for her during her employment at an Extended Stay America property, as she alleges in her lawsuit. She claims that her Christian manager fired her specifically because he did not want a transgender woman working for him.

Coronavirus Update 7–13–2021: The 3 reasons why it matters that you get vaccinated (even if I’m vaccinated)

"If you're vaccinated, and the vaccines work, why do you care if I get vaccinated? Let me live my life. My body, my choice." This sentiment echoes a popular refrain of those who are anti-vax or otherwise not getting the Covid vaccine.

It's also very, very wrong. Here are the top three reasons that it matters that you get vaccinated (even if I'm vaccinated).  

You don’t need to wait for President Biden to fix what’s wrong with non-compete agreements

On Friday, President Biden signed an Executive Order on Promoting Competition in the American Economy. According to the Order, its goal is to promote a "fair, open, and competitive marketplace" and "the welfare of workers, farmers, small businesses, startups, and consumers" through the elimination or limitation of "excessive market concentration," which "threatens basic economic liberties, democratic accountability." One of the President's targets is "companies [that] require workers to sign non-compete agreements that restrict their ability to change jobs." Indeed, according to the President, half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.

Thus, President Biden ordered "the Chair of the FTC … to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility."

WorldatWork’s Work in Progress podcast—Episode 118: A Conversation with Employment/Labor Attorney Jon Hyman

This week marks my record-setting third appearance on WorkatWork's Work in Progress podcast. Tune in to listen to me talk about employer vaccination policies, transgender bathroom rights, workplace drug testing, and an assortment of other controversial issues in between. We also started our conversation with a bonus chat on the latest RRHOF inductees. Which one am I most excited about? You'll have to listen to find out.

A huge thank you to Charles Epstein and Tom Alexander for inviting me back on. Tom, I'm anxiously awaiting receipt of a Popeye's chicken sandwich as my "three-timer" award. I'm just hoping it's delivered in the form of a value-appropriate gift card and not an actual sandwich. 

You can listen below, or wherever you get your podcasts.

Religious accommodations shouldn’t flummox employers, yet they still do

I've shared this story before, but it's worth re-sharing because (a) it's been a few years and I have many new readers, (b) it's really good, and (c) because it's super relevant to today's lesson.

I spent a high-school summer working on a warehouse loading dock. One of my co-workers was named Harland Jester. (I provide his name because he named his son "Court," and this context provides the necessary color for the rest of the story.)

Four days into my summer job, a co-worker pulled me aside and asked, "Did Harland get a hold of you yet?"

ABA President fixes the victim-blaming problem the ABA Journal created for working moms

Yesterday, I was highly critical of the ABA Journal for publishing a column that victim-blamed working moms for their lack of advancement in the legal profession. Then, ABA President Patricia Lee Refo did what she could to fix the injustice created by the journal of the organization she runs.

In her own column—Women's success in legal careers: Lack of advancement is not a 'woman' problem, it’s a 'profession' problem—Refo took apart the notion that female attorneys are to blame for their lack of upward mobility. They have not failed, Refo correct argues, their employers have failed them.

The American Bar Association must never again victim-blame working-parent attorneys for the discrimination they suffer

The ABA Journal recently published a column by
Susan Smith Blakely, a career counselor and former law-firm partner, that does a gross injustice to every law-firm working parent. 

Her piece, titled, Are women lawyers paying enough attention to upward mobility?, argues that women lawyers are responsible for the limited opportunities their employers have fostered upon them. By focusing on family instead of firm, she argues that they have chosen their priority and should not complain when career advancement passes them by.

Coronavirus Update 6–30–2021: Because of your vaccine hesitancy, COVID-19 is here to stay

Last week I asked you, my readers, for your creative ideas to incentivize more people to get vaccinated. 

Your thoughts—

Transgender bathroom access remains a solution in search of a problem

Yesterday, the Supreme Court declined to hear the appeal of a school district challenging the right of a transgender student to use the bathroom that corresponded to his gender identity, leaving in place the landmark 4th Circuit opinion holding that transgender bathroom restrictions constitute illegal sex discrimination.

This decision falls in line with the EEOC's recent statement on this issue for employers.

Coronavirus Update 6-28-2021: Television meteorologist April Moss correctly fired for on-air rant against employer’s Covid policies

WWJ CBS Detroit fired meteorologist April Moss after objecting on-air against her employer's COVID-19 policies. Moss paused her Father's Day weather forecast to say, "And speaking of a brand new week, I will be sitting down this week with Project Veritas to discuss the discrimination that CBS is enforcing on its employees. Tune in to Project Veritas for my full story." (Project Veritas is a controversial far-right activist group that uses hidden camera footage to attack its targets.)

Coronavirus Update 6-25-2021: Post-Covid pet-friendly workplaces?

"Does returning to the office mean bringing pets to work?" is a question that recently caught my eye as I was scrolling through my feed on LinkedIn (thanks David Miklas).

What the heck do we do with our pets as we return to the office? If Loula and Dante could talk, they'd tell you, "Pleeeeeeeeeeeeeeeeeeeeeease don't take my parents away; we've gotten so used to having them at home with us every single day." 

For this reason, and as an enticement to get people back to the office, some businesses are considering going pet-friendly and opening their space to employees' four-legged companions.

Are you thinking about opening up your business to employees' pets? 

Coronavirus Update 6-24-2021: Crowdsourcing new ideas on how to get more people vaccinated

• State-sponsored vaccine lotteries.
• Relaxed or eliminated mitigation rules for the fully vaccinated.
• Paid time off for vaccines and side effects.
• Gift cards and other monetary incentives.

Governments and employers seemingly have tried everything to get as many people vaccinated as quickly as possible.

Yet, we are failing. 

Coronavirus Update 6-23-2021: We now live a Covid-bifurcated society — the vaccinated and the will-get-sick

I spent last weekend visiting my parents in Philadelphia. Because of the pandemic we had not seen them in 20(!) months. It was a glorious five-day visit.

During our trip to Philly we mixed in a visit to Donovan's cardiologist (whom he had also not seen in 20 months). We learned two things from that appointment. 

First, Donovan's (formerly) narrow pulmonary valve responded amazingly to his October 2019 procedure. 

Secondly, Covid is still spreading like wildfire among the unvaccinated, even kids. We learned that pediatric ICUs are full of unvaccinated children with serious and dangerous COVID-19 infections. According to Donovan's cardiologist, "It is now painfully clear that you will either get vaccinated or you will get COVID."

Further proof of our Covid-bifurcated society? Consider the Manatee County, Florida, IT Department, which was just ravaged by a COVID-19 outbreak. According to CNN, of the six people infected, five were hospitalized and two died. They were all unvaccinated. The only exposed employee who did not get infected happened to be the only vaccinated employee.

Coronavirus Update 6-22-2021: Workplace things Covid has not changed—you can still fire dishonest employees

Suppose an employee leaves work claiming Covid-like symptoms. He then calls off work for the next two weeks, claiming he is quarantining at home at his doctor's recommendation. Can you fire the employee during that quarantine period? Does your opinion change if you learn during the quarantine that the employee's doctor never recommended the quarantine and the employee lied about receiving that recommendation?

Those are the basic facts of O'Bryan v. Joe Taylor Restoration, and upon which a federal court jury in Southern Florida recently entered a verdict in favor of the employer.

Explaining the EEOC’s brand-new LGBTQ+ resources in three words

Yesterday, Bostock v. Clayton County—the Supreme Court decision which held that Title VII expressly covers and protects gay and transgender employees—celebrated its one-year anniversary. 

To commemorate this event, the EEOC released new resources on the issues of sexual orientation and gender identity workplace rights. These materials include a new landing page that consolidates the EEOC's information on these issues and a new technical assistance document to help explain Bostock and the EEOC's positions on it.

As sure as I believe love is love, I'm sure every BigLaw firm will be publishing detailed summaries about this new technical assistance document. 

I can summarize it, however, in three short words.

HR horror stories

If you've never experienced someone spreading 💩 all over the place, then you don’t work in employment law or HR.

For example, consider the following, which I found on the local police blotter—

Ex-employee in deep doo-doo after prank: A cashier reported an employee who had given his two weeks’ notice was seen running from the restaurant restroom to his car and driving away. A check of the restroom revealed the suspect had scattered dog feces on the floor. He was arrested and charged with criminal mischief.

Based on my experience, this story is quite tame. Just the floor? What about the walls? And only dog feces? Or was it really just dog feces?

I posted that story on LinkedIn and asked if anyone could top it. My followers did not disappoint.

I'm omitting names and employers to protect the guilty. Happy Tuesday!

Coronavirus Update 6-14-2021: It took all of 12 days for 117 employees to learn what it feels like to lose a lawsuit in spectacular fashion

Twelve days ago I predicted that the 117 hospital workers suing their employer over its mandatory COVID-19 vaccine would lose their lawsuit in spectacular fashion. 

I love it when I'm very, very correct. 

Over the weekend, Judge Lynn Hughes of the United States District Court for the Southern District of Texas issued a pointed five-page opinion that eviscerated the plaintiffs' arguments and dismissed their lawsuit. The losers vow to appeal and fight on. To quote one of my law school professors, I say, "Too bad, so sad, hard cheese."

Here's what I predicted about this case and the plaintiffs' arguments, and here's what Judge Hughes had to say.

Coronavirus Update 6-11-2021: OSHA’s long-awaited COVID-19 safety rule is a big bowl of … meh

Today is the 15-month anniversary of the COVID-19 pandemic. All that employers have asked of OSHA during the past year and a quarter is some clear guidance on the rules and expectations to keep employees healthy and safe. Yesterday, OSHA finally complied … sort of. 

The agency issued an emergency rule that sets workplace safety parameters for employers for the remainder of the pandemic. Critically, however, it only applies to health-care employers. (Does this apply to you? OSHA published this not-so-handy flowchart to help you out.) With a few exceptions for workplaces in which all employees are fully vaccinated and which bar anyone who may have COVID-19, health-care employers must maintain social distancing protocols, provide and ensure that workers wear appropriate face masks while at work, and give workers paid time off to get vaccinated and recover from vaccine side effects, among other provisions. OHSA even published this handy screening questionnaire, which I drafted for my clients 15 month ago.

For all other employers, OSHA updated its voluntary guidelines to focus primarily on protections for unvaccinated and otherwise at-risk workers. These updates largely track the CDC's updated guidelines for the fully vaccinated. 

Coronavirus Update 6-10-2021: The patients have taken over the asylum

Meet Dr. Sherri Tenpenny. She calls herself the "most knowledgeable and outspoken physician on the adverse impact that vaccines can have on health." The Center for Countering Digital Hate, on the other hand, identifies her as number four among its "Disinformation Dozen" … "twelve anti-vaxxers who play leading roles in spreading digital misinformation about Covid vaccines."

She is also one of 517 people who offered testimony earlier this week in the Health Committee of the Ohio House of Representatives in favor of Ohio House Bill 248, the Vaccine Choice and Anti-Discrimination Act. That bill would:

• Prohibit anyone from mandating, incentivizing, or otherwise requesting their employees, customers, or students get vaccinated;
• Make it illegal for anyone to require a vaccination for someone who refuses based on medical contraindication, natural immunity, religious convictions, or other reasons of conscience; and 
• Prohibit anti-vax discrimination.

This is a clip of Dr. Tenpenny's testimony, the scariest, and craziest, offered that day.

Testimony going off the rails now.

Tenpenny is claiming there is metal in the vaccine that causes forks to stick to your forehead. She saw videos of it on the internet, you see

Also promoting the 5G cell phone network vaccine theory. This is the anti-vaccine "expert witness" pic.twitter.com/sPpuAqmHba

— Tyler Buchanan (@Tylerjoelb) June 8, 2021

Coronavirus Update 6-9-2021: No, the COVID-19 vaccine has not killed more people than mass shootings, and it’s not even close

In Miller v. Bonata, a federal district court held that California's 30-plus-year ban on assault weapons violates the Second Amendment. In support of his holding, Judge Roger Benitez made the following analogy, in arguing in support of the lack of harm assault weapons pose: "More people have died from the Covid-19 vaccine than mass shootings in California."

Judge Benitez is wrong, and it's not even a close case. 

Coronavirus Update 6-8-2021: OSHA updates employers of N95 use

OSHA recently provided employers an update on the proper use of N95 masks, including a new video, poster (in English and Spanish), and FAQ (which makes is clear that "an N95 respirator is effective in protecting workers from the virus that causes COVID-19).

Celebrating the important stuff

Donovan was diagnosed with Noonan Syndrome when he was just five months old. His gastroenterologist heard a heart murmur, which caused her to refer us to a cardiologist. She diagnosed his pulmonary valve stenosis. Since 60 percent of people with this heart defect also have Noonan Syndrome, the cardiologist referred us to a geneticist, who made the ultimate genetic diagnosis. 

Noonan Syndrome is a genetic disorder caused by one of several mutations. Our son's mutation is of the PTPN11 gene. NS is a multi-system disorder with an estimated prevalence of 1 in 1,000 – 2,500 births. In Donovan's case, he has a bleeding (platelet function) disorder, the above mentioned congenital heart defect (which doctors addressed a couple of years ago via a balloon angioplasty), feeding and gastrointestinal issues (Celiac disease), ptosis of his right eye, low-set ears, waning small stature (for which he takes daily injections of growth hormones, that are working really, really well), and ADHD. Some (although not our son) also have learning disabilities.

Donovan's diagnosis was a gut punch for my wife and me; we had no idea what life would hold for him.

This was Donovan last Friday, holding his 6th Grade Core Value Award for Scholarship.

Now is as good a time as ever for a cybersecurity refresher

In light of the recent crippling Russian cyber-attacks on Colonial Pipeline and JBS, now is a perfect time for a refresher course on cybersecurity.

Here are some A+ resources I've previously provided:

Coronavirus Update 6-2-2021: 117 employees are about to learn what it feels like to lose a lawsuit in spectacular fashion

117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine. 

According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is "illegally requiring its employees to be injected with an experimental vaccine as a condition of employment." The lawsuit adds that the hospital's vaccine requirement violates the "Nuremberg Code and the public policy of the state of Texas."

In a statement, hospital CEO Dr. Marc Boom said, "It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental."

Dr. Boom is 100 percent correct; the hospital's policy is legal. Here's why, and why this lawsuit will fail spectacularly.

Coronavirus Update 6-1-2021: EEOC says that employers legally can offer incentives to employees to get vaccinated in almost all instances

Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for receiving the COVID-19 vaccine. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.

What did the EEOC say:

Yes, Karen, your boss really can fire you for being a Karen

Do you remember Amy Cooper? She was the woman who called police on a Black man (Christian Cooper, no relation) who crossed her path while she was walking her dog in Central Park. One day later, her employer, Franklin Templeton, fired her, explaining, "We do not tolerate racism of any kind at Franklin Templeton." One year late, she has filed suit against her former employer, claiming that she was wrongfully terminated based on the company's failure to investigate what actually happened in the park.

Through a spokesperson, Franklin Templeton denies any wrongdoing related to Cooper's firing. "We believe the circumstances of the situation speak for themselves and that the company responded appropriately. We will defend against these baseless claims." 

In other words, Christian Cooper's viral cell phone video speaks for itself. Franklin Templeton either fired Amy Cooper because it concluded that she's racist, because her actions brought the firm negative publicity, or both. Either way, I see no chance that Amy Cooper's lawsuit succeeds.

Happy 15th Birthday, Norah!

Today, my rock-star daughter turns 15. 

There's lots I can say about Norah, but I've shared so much over the years that I feel like it'd just be repetitive. So instead of writing about what a sweet, smart, compassionate, talented human she is and has always been, today I'm turning this space over to her.

Norah's "final exam" for her 9th grade English class was a creative writing assignment. They were given very little direction. Just, "You have a week; write something creative." With her permission, today I'm publishing what she wrote. I found it so moving and so outstanding that I think it needs to be shared with as wide of an audience as possible. Enjoy.

And please take a moment to wish Norah a happy birthday. You'll find her on Twitter @normlmao_ or @norahmariemusic.

Coronavirus Update 5-26-2021: Vaccination-status harassment

"I can't believe you got vaccinated. It's an experimental drug that I'm not injecting into my body. Besides, I heard that Bill Gates and the global elites implanted 5G trackers in the vaccine. All the government wants to do is control us, and you're letting them by submitting to these shots. Sheeple!"

-or-

"I can't believe you're not getting vaccinated. Don't you care about protecting yourself and others? This vaccine has been tested, vetted, and is safe and effective. We need to reach herd immunity if we want this pandemic to end, and you're not doing your part. Selfish!"

Some version of this drama is likely playing out in your workplace. And it has to stop, ASAP.

Coronavirus Update 5-25-2021: How to enforce masks rules at work without breaching ADA confidentiality rules

If an employer is supposed to keep an employee's vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC's most recent guidance that permits fully vaccinated individuals to unmask? 

Coronavirus Update 5-21-2021: We need a digital vaccine passport

Yesterday's post about COVID-19 vaccine-card fraud got me thinking about what we need to do to combat it (other than trying to spot fakes when we can and diligently enforcing the criminal laws that already prohibit this fraud). My answer:

A national digital vaccine passport.

But it's complicated.

Coronavirus Update 5-20-2021: Fake Covid vaccine cards are a growing problem, and also a federal crime

Fraudulent COVID-19 vaccine cards are readily available online, and their prevalence will only grow with the CDC's loosening of its mitigation guidelines for the fully vaccinated.

The problem has gotten so bad that the FBI is now warning people that making or buying a fake COVID-19 vaccination record card is a federal crime.

Coronavirus Update 5-19-2021: OSHA sends employers a strong signal that it intends to follow the CDC on masks

One open issue stemming from the CDC's about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one's vaccination status had zero impact on an employer's obligation to require masks in all cases. 

Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. 

In the world of Covid, three and half months is an eternity, so here we are just three and a half months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?

The 9th nominee for the “Worst Employer of 2021” is … the enslaving employer

Today, a break from talking about the CDC and masks (but more tomorrow) to bring you a truly awful nominee for the Worst Employer of 2021.

For the past two years, a human trafficker or enslaver hoisted the "Worst Employer" trophy at year's end. Will 2021 bring us a threepeat?

NBC News reports on a strong contender:

The FBI was at a massive Hindu temple in New Jersey on Tuesday that has been accused in a lawsuit of luring Indian men from marginalized communities to the U.S. and forcing them to work nearly 90 hours a week for around $1 an hour.

Coronavirus Update 5-17-2021: It’s spelled HIPAA, not HIPPA … fixing some common misconceptions about the Health Insurance Portability and Accountability Act

Ever since the CDC amended its COVID-19 guidance to say that the fully vaccinated no longer need to wear masks indoors, I've read myriad variations of this tweet:

Friendly reminder that under HIPPA, your vaccination status is private.

Or this tweet:

The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.

Their point? That medical privacy laws protect their vaccination status, and it's illegal for any business to ask as a condition of anything.

They are very, very wrong. So, I thought today I'd clear up some common misconceptions about HIPAA specifically and medical privacy more generally.

Coronavirus Update 5-14-2021: CDC ends masking and social distancing for the fully vaccinated, but what does it mean?

Yesterday, the CDC updated its Covid guidance to remove all masking and social distancing guidance for those of us who are fully vaccinated. According to the CDC—

• If you are fully vaccinated, you can resume activities that you did prior to the pandemic, without wearing a mask or physically distancing. 
• If you are not fully vaccinated, you must keep wearing masks when around others indoors.

But what does this really mean? And, more to the point, how you know who's vaccinated and who's not so that you can permit them to remove their masks inside your business?

But what does it really mean? And, more to the point, how do you know who's vaccinated and who's not so as to allow anyone to be unmasked?

Coronavirus Update 5-13-2021: Governor DeWine ends all Covid public health orders, and goes game show host to get more people vaccinated

Last evening, Governor DeWine held a statewide address to announce the availability of the Pfizer vaccine for Ohioans ages 12 - 15. That news was not shocking. The rest of what he had to say, however, was.

Coronavirus Update 5-12-2021: We are in the midst of a public mental-health crisis; how employers can help

Consider these statistics, courtesy of the National Institute of Mental Health, which recently examined mental health issues one year into the COVID-19 pandemic:

• 31% of people report symptoms of anxiety or depression​
• 13% report having started or increased substance use​
• 26% report stress-related symptoms​
• 11% report having serious thoughts of suicide in the past 30 days​

These grim numbers tell me that COVID-19 has created a national mental health crisis. At least some of your employees are struggling. Your challenge is what to do about it.

Coronavirus Update 5-11-2021: I ❤ science

Late yesterday, the FDA announced that it has authorized Pfizer's COVID-19 vaccine for 12-15-year-olds. It's the best news I've heard in 14 months. We've literally been living on pins and needles, feeling like we are daily dodging viral bullets as we wait for our high-risk 12-year-old and his 14-year-old sister to be able to get vaccinated.

Coronavirus Update 5-10-2021: EEOC Commissioner wants industry-specific Covid guidelines

Last week, the EEOC held a public meeting on the impact of the COVID-19 pandemic on civil rights in the workplace. Following up on the remarks at that meeting, EEOC Commissioner Keith Sonderling, speaking at a virtual summit held by the Institute for Workplace Equality, said that employers need guidance on whether their Covid-related decisions are legal, and that the EEOC should issue industry-specific guidance to clear up these ambiguities.

Happy birthday to me!

This weekend, the Ohio Employer Law Blog turns 14! 

May 9, 2007 — my first post ever here at the blog. 3,628 posts and three law firms later, happy birthday to me!

May 9 offers another reason to celebrate, Mothers' Day. I haven't seen my mom in 19 months, but with vaccines hopefully on the immediate horizon for my kids, I should be able to give my mom a sorely missed and needed hug really soon. This long-distance message will have to do until then.

Today also happens to be my mom's birthday, so everyone please wish her a happy one!

Next week, more legal stuff, starting with some good, and not-so-good, news from the EEOC.

* Photo by Marty Southwell on Unsplash

Coronavirus Update 5-6-2021: Do your employees have “Covid anxiety syndrome”?

The Telegraph recently tweeted about what is being called "Covid anxiety syndrome." The whole thread is a fascinating read, but its bottom line is that some people are reacting irrationally by continuing extreme Covid mitigation measures when they are no longer needed.

The Guardian quotes professor Marcantonio Spada London South Bank University, who first theorized this syndrome after noticing people were developing a particular set of traits in response to Covid.

Fear is normal. You and I are supposed to fear the virus because it's dangerous. The difference, however, in terms of developing a psychopathological response is whether you end up behaving in … overly safe ways that lock you into the fear. My expectation is we're going to have … chunks of the population that are avoiding re-engagement and constantly worrying about the virus for months to come, whether they are vaccinated or not.

So here's my question for you — do you have employees experiencing such behavior? Continuing to insist on remote work even after being fully vaccinated? Wearing a mask all of the time, even when alone in an office? Insisting on constantly wiping down surfaces as if they are disinfecting a crime scene? 

Coronavirus Update 5-5-2021: NFIB’s survey of small employers reveals some disturbing Covid vaccination trends

The National Federation of Independent Business just released the results of its most recent Covid-19 Small Business Survey. 546 businesses, all with fewer than 200 employees, provided their experiences on a variety of Covid related topics. The results that jumped off the page, however, were the two questions about the Covid vaccine.

An update on the Worst Employer of 2019

What did Bobby Edwards do to earn the title of the Worst Employer of 2019?

Bobby Edwards, the manager of J&J Cafeteria in Conway, South Carolina, effectively enslaved JCS (to whom we refer with the fictitious name "Jack"), forcing him to work at the restaurant over 100 hours per week without pay. …

In 1990, when Jack was 12 years old, he started working part-time at J&J Cafeteria as a dishwasher. He has an intellectual disability and an IQ of 70. After a few years of part-time work, Jack dropped out of high school and started working full-time at the restaurant. For the first 19 years of his employment, when the restaurant was owned and managed by different members of the Edwards family, Jack was always paid for his labor.

That, however, changed in September 2009, after Bobby Edwards took over the management of the restaurant. Edwards moved Jack into an apartment attached to the restaurant and forced him to work more than 100 hours per week without pay — usually 6:00 a.m. to 11:00 p.m. for 6 days and 6:00 a.m. to 2:00 p.m. on Sundays. Not only did Jack work long hours without pay, he was never given a day off. Edwards effected this forced labor by taking advantage of Jack's intellectual disability and keeping Jack isolated from his family, threatening to have him arrested, and verbally abusing him. His control over Jack also involved physical abuse. Once, when Jack failed to deliver fried chicken to the buffet as quickly as Edwards had demanded, Edwards dipped metal tongs into hot grease and pressed them to Jack's neck, resulting in a burn that fellow employees had to immediately treat. Other times, when Jack made supposed mistakes, Edwards whipped him with his belt, beat him with kitchen pans, and punched him with his fists. This treatment left Jack physically and psychologically scarred. Jack later said, "I felt like I was in prison. Most of the time I felt unsafe, like Bobby could kill me if he wanted. … I wanted to get out of that place so bad but couldn't think about how I could without being hurt."

At the time of sentencing, the judge ordered Edwards to pay Jack $272,952.96 in restitution, in addition to sentencing him to 10 years in prison. 

Last month, the court of appeals ruled that Edwards should pay liquidated damages to Jack under the FLSA in addition to the $272,952.96 of back wages. Under the FLSA, an aggrieved employee is entitled to an award of liquidated damages in an amount equal to the total amount of unpaid wages (i.e., double damages) unless the employer can show (1) that it acted in good faith; and (2) that it had reasonable grounds to believe it had complied with the FLSA. I see no way possible that Edwards could have ever hoped to have met that standard.

Thus, at the end of the day, Jack should receive a total award of $545,905.92 in restitution. Of course, how Edwards intends to make good on his substantial obligation to Jack is another story. 

Finally, my offer to Bobby Paul Edwards still stands. If the Federal Correctional Complex in Butner, North Carolina, will not allow him to collect his trophy, I’ll have it waiting for him to claim when he's released in 2029.

Does President Biden have the political juice to make paid family and medical leave a reality?

For the past couple of administrations, it's a presidential rite of passage—unveiling a plan to provide paid family and medical leave to American workers. Last Wednesday night, President Biden released his proposal as part of his $1.8 trillion American Families Plan.

Coronavirus Update 4-30-2021: Today in pro se lawsuit insanity

Masks remain a key line that divides our country. The CDC just announced that the fully vaccinated safely can go maskless in small gatherings outdoors. Meanwhile, Tucker Carlson is telling his viewers to call the police when they see a child wearing a mask; the charge—child abuse.

And then there's this bonkers lawsuit—the CEO of Costco is being sued for $350 million for implementing a mandatory mask rule in his stores. The plaintiff claims an infringement of his constitutional right to go maskless in public.

The 8th nominee for the “Worst Employer of 2021” is … the vaccine vetoer

In a stunning show of ignorance, a Miami, Florida, private school has informed its staff that because the Covid-19 vaccine poses a health risk to those in close proximity to those who have been vaccinated, those who have already received the vaccine must physically distance from students and anyone vaccinated will not be permitted to return to work after the summer break. 

Biden Administration announces $15 minimum wage for all federal contractors

Yesterday, the White House announced that effective January 30, 2022, all federal contractors will be required to incorporate a $15 minimum wage in new contract solicitations, and by March 30, 2022, all federal agencies will need to implement the minimum wage into new contracts and into existing contracts with annual options to renew.

The Executive Order that implements these changes will also tie this new minimum wage to inflation and adjust accordingly annually, eliminate the tipped minimum wage for federal contractors by 2024, and extends the required $15 minimum wage to federal contract workers with disabilities.

Why would a company wait a year to implement an anti-harassment program?

McDonald's has lots of secrets. What's in its sauce? What part of the chicken do the McNuggets come from? How come every time I crave a cone the soft-serve machine is out of order? Why do their soft drinks taste better than anyone else's?

Something that's not a secret, however, is that McDonald's has a serious sexual harassment problem.