It's illegal to deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender

Can an employer-sponsored health plan legally deny coverage for gender-affirming care to a transgender employee simply because the employee is transgender?

According to the 11th Circuit Court of Appeals in Lange v. Houston Cty., the answer is an unequivocal "No, it cannot!"

It's 100% legal to close your business to avoid a labor union

"We have some sad news to share. A process that began last year has reached its conclusion. Today was the last day of service for both cafes of the Wydown, which are now permanently closed." 

That sign hung on the door of both Wydown Coffee Bar locations late last week.

What's so newsworthy about two cafes closing? What if I tell you that the closure happened just five days before their 35 employees were set to vote on unionization?

The employees steadfastly believe that the cafes closed to avoid a labor union. The owners deny their claim and say that they were merely "ready for a change."

WIRTW #717: the ‘donut' edition

I love donuts. At 51 years old, however, I try not to eat them too often anymore. The weight just doesn't come off quite the way it used to. But it doesn't mean I won't indulge every now and again, including on a recent episode of The Triple D Podcast: Donuts, Disability and Discourse.

I sat down with local disability rights attorney Michael Liner to discuss my work as a labor & employment lawyer and craft beer lawyer, the types of clients I work with, my roll managing marketing and business development at my law firm, and the challenges and opportunities of working in a post-Covid world. I also shared my review of the outstanding craft-beer-based donut I sampled at Brewnuts, our host for the episode. 

You can watch the entire discussion here.

Finally, there are still some tickets left for the Rhett Miller/norah marie show at the Music Box Supper Club this Sunday, May 19, 🎟️ here. Doors are at 5, and Norah's opening set starts at 7.

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

This is why you should never give a pass to any employee misconduct

A law firm fires its HR Manager a mere days before she is set to return to work from maternity leave. It says it fired her for "cause," citing numerous performance related examples, including her alleged mismanagement of the firm's health-benefits enrollment.

The problem for the law firm, however, is that it allegedly discovered those performance issues months before the termination and sat on them until the employee was ready to return from her maternity leave.

That timing was enough for the court to deny the law firm's motion for summary judgment on her pregnancy discrimination claim.

This should constitute a racially hostile work environment; the court says it didn't

15 different Black employees complain that their health-care employer maintains a racially hostile work environment. The allegations include several being exposed to the N-word at work, patients refusing treatment by Black employees and calling them "colored" and other slurs, and other race-based incidents.

Nevertheless, in EEOC v. Village at Hamilton Pointe, the 7th Circuit affirmed the dismissal of the agency's racial harassment lawsuit. "In sum," the court wrote, "the evidence of record does not support, under established principles of law, a case for racial harassment that was so severe or pervasive as to alter the conditions of employment for any of these claimants."

I disagree.

For Ohio employers, it doesn't matter what the DEA says about marijuana

News recently broke that the DEA intends to reclassify cannabis from a Scheule I drug to a Schedule III drug. That reclassification would permit health care providers to legally prescribe cannabis for medicinal uses.

As a result of this reclassification, employers would likely inherit a legal obligation under the ADA to reasonably accommodate an employee's use of legally prescribed marijuana. It would no different that the use of any other Schedule III drug (e.g., ketamine or codeine) — you have to accommodate its use off duty but not employees' impairments on duty.

BUT … check your state law. 

WIRTW #716: the ‘new kid' edition

On June 5, 2014, Rhett Miller, founder, front person, and lead singer of Old 97's, promised my daughter (then a mere 9 days past her 8th birthday) that once she was playing her own paid gigs, he'd have her open for him. That conversation took place in the green room of the Beachland Ballroom, and the adjacent photo was taken just after that conversation.

A decade later, Norah is an established, working musician, and Rhett is making good on his promise. He's coming back to town to play a solo gig at the Music Box Supper Club. To make a long story short, when the club announced the gig, Norah reached out to Rhett to ask about opening for him; on May 19 she'll be doing just that.

To hear the longer version of this story, tune in to the most recent episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, Amazon Music, Overcast, the web, and everywhere else you get your podcasts. 

As for me, I'll be front and center at Music Box on May 19, singing along to Norah's and Rhett's songs. It's gonna be a great night! If you're interested in joining us the Music Box still has some tickets available here. (You'll find a running list of all of Norah's gigs here; click "Follow" for notifications of new gigs as they're announced.)

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

DOL cautions employers on the use of AI

"When used responsibly, AI has the potential to help improve compliance with the law. Without proper human supervision, however, these technologies can pose potential risks to workers … and may result in violations of the law…." 

Those are the words of the Department of Labor in its just published Field Assistance Bulletin, Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards.

The DOL highlights many potential legal pitfalls for employers that rely on AI to manage how their employees are paid and to track their attendance and leaves of absence.

Does a prank involving adult diapers and a wheelchair = age discrimination? It depends.

An attorney celebrates a paralegal's 50th birthday by decorating her office party with a wheelchair, fake pill bottles, and adult diapers. (Get it? She's "old.")

The paralegal does not appreciate the joke, and lets the lawyer know as much. In response, the lawyer simply moves the decorations adjacent to the paralegal's workstation. Around the same time, the lawyer also starts asking when the paralegal intends to retire.

Sexual harassment, bathroom, and pronouns

"Sex-based harassment includes harassment based on sexual orientation or gender identity, including … repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity … or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity."

That the official position of the EEOC in its just released, Enforcement Guidance on Harassment in the Workplace.

EEOC Commissioner Andrea Lucas disagrees. She voted against the final guidance. She believes that the bathroom guidance is an "assault on women's sex-based privacy and safety," and the pronoun guidance is an assault on "speech and belief rights."

WIRTW #715: the ‘over the top' edition

Another successful Craft Brewers Conference is in the books. 

I spent a few great days speaking (on how to craft a harassment-free craft brewery); seeing old friends and making new ones (I love my craft beer tribe); networking with brewers and other industry professionals (at the Start A Brewery lounge my firm co-sponsored and at nighttime events at breweries around town); eating (the fried chicken at Yardbird in the Venetian is better than advertised, and they advertise it as the best in the country); and, yes, drinking (mostly within moderation; CBC is a marathon, not a sprint).

I also spent an evening supporting an incredibly worthy cause. Wild West Access Fund held its Brewsters Arm Wrestling event. Women, non-binary, and trans people in beer took the stage in a single-elimination arm wrestling competition to raise money to provide financial assistance to those seeking abortion care in Nevada.

It felt good to do good. While my friends who competed did not win — sorry, Julie Rhodes and Dr. J — it was an amazing night for an amazing cause.

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

"This is a business." Google CEO fired back and fired protesting employees.

"This is a business, not a place to act in a way that disrupts coworkers or makes them feel unsafe…."

Those were the words of Google CEO Sundar Pichai in a post on his company's corporate blog.

He's referring to Google's recent firing of 50 workers involved in protests against the company's cloud-computing contract with the Israeli government.

FTC bans all non-competes … Now what?

There's more than one way to skin a cat … or at least that's what many employers are hoping.

Yesterday, the Federal Trade Commission turned the workplace on its head by banning nearly all non-compete agreements.

I'm not going to summarize the FTC's Rule; your inboxes and LinkedIn feeds will be flooded with plenty of those … including this one we sent out this morning.

Suffice it to say that 120 days from the publication of the Rule in the Federal Register, employers will no longer be able to enforce any non-compete agreements except for those already in place with senior execs earning $151,164 or more annually.

WIRTW #714: the ‘today's post is brought to you by the letters W, G, and A' edition

"No one wants to see a picket line on Sesame Street," said Writers Guild President Lisa Takeuchi Cullen.

Earlier this week, Writers Guild members at Sesame Workshop unanimously voted to authorize a strike if management does not agree to a new collective bargaining agreement before their current contract expires later today. Absent a deal, picketing will begin on April 24.

The writers are seeking industry standard annual raises, improvements to residuals, and union coverage for Sesame Workshop's animation and social media segments.

Anyone who follows me on the regular knows that I'm no fan of labor unions. The demands of these writers, however, seem fair and reasonable. They will also have public sentiment on their side.

"Millions of parents and families around the world are going to have a lot of questions," said Lisa Takeuchi Cullen. "They might ask why the bosses at Sesame Workshop are ignoring their company's own messages of kindness and fairness."

Ouch. Your business has a serious problem when your actions don't match stated values. And that's brought to you by the letters, B, A, and D.

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

Supreme Court eases path for employees to sue employers for discriminatory job transfers

In a unanimous decision, the Supreme Court held that an employee alleging a discriminatory job transfer need not show the suffering of a "materially significant" disadvantage. Instead, the employee need only show "some injury respecting her employment terms or conditions."

The case involved a police sergeant forced to transfer out of her position in the department's intelligence division. The employer claimed that she could not establish a Title VII volitation because the transfer did not result in a diminution of her pay. 

EEOC makes is clear that the Pregnant Workers Fairness Act covers unpaid time off for abortions

From this point forward, if an employee needs an unpaid leave of absence to obtain and recover from an abortion, you better give it her. I realize this topic is divisive, but this issue is no longer subject to debate.

Earlier this week, the EEOC published its final regulations implementing the Pregnant Workers Fairness Act. Pre-publication, agency considered 94,000 comments urging it either to exclude or include "abortion" from the Act's definition of "pregnancy, childbirth, or related medical conditions." The EEOC chose the latter. Here's why.

One bourbon, one union election, and one Cemex bargaining order

One bourbon, one union election, and one bargaining order … is what an NLRB ALJ told Woodford Reserve Distillery last week. The judge held that the distillery violated federal labor law by undermining its employees' unionization efforts and ordered the distillery to bargain with its employees as their remedy.

WIRTW #713: the ‘lounging around' edition

Next week I'll be at the Craft Brewers Conference at the Venetian in Las Vegas — a four-day gathering presented by the Brewers Association of all things craft brewers and craft beer. There are loads of speakers spread across eight educational tracks, a massive trade show, and too many networking opportunities to count.

On the educational front, I'm speaking on Sunday as part of the THRIVE pre-conference workshop discussing how to craft a harassment-free craft brewery.

On the networking front, my firm is sponsoring the Start A Brewery lounge. Start A Brewery is a community of craft beer industry veterans who share our knowledge and experience in support of the craft beer community by helping new breweries and breweries in planning.

If you're at CBC and want to connect, look for me in the Start A Brewery lounge. I will be in and out on April 22 and the morning of the 23rd. (The lounge is open through the 24th.)

Our lounge will be located at the top of the escalators leading into the main exhibit hall at the Venetian. There will be beer available all around us, and we'll have couches and charging stations to refresh yourself and your devices.

Please let me know if you plan on stopping in so that I can make sure I'm present and available. And please say hello if you're at my speaking session or just happen to run into me at the Conference or at any of the events around Las Vegas. I will happily share a beer with you and toast our industry.

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

Don't be an ostrich with harassment

"If I ignore harassment, it will go away" … is the 100% incorrect response to harassment happening in your workplace. It's also a non-refundable first-class ticket to a nasty lawsuit.

An employer CANNOT ostrich workplace protected class harassment. "Employer" includes managers and supervisors. If someone in a position of authority witnesses or otherwise learns of protected class harassment in the workplace, the business has the same legal obligations as if the victim had complained.

Must you accommodation an employee's religion not to attend DEI training? Believe it or not, it might depend on the training.

"Your respectful workplace training is against my religion; count me out."

That's what one employee told his employer when it tried to compel him to attend its mandatory training about treating all with courtesy and respect.

When the employee learned that one module of the training would include LGBTQI+ issues, he explained to his employer, "This subject matter contradicts my sincerely held religious beliefs." He advised that he would excuse himself during that portion of the training.

WIRTW #712: the ‘OH-WOOO’ edition

I will officially have a college student in a little over four months. The "if" was never in doubt, but there "where" definitely was … at least until a couple of weeks ago.

Norah chose Ohio Wesleyan University — OWU, or, as it's affectionately called, OH-WOOO. She'll be a Battling Bishop.

"Fit" might be a four-letter word in the employment law space, as employers often use it as a pretext for discrimination. But for Norah's college choice, it was all about fit.

✅ Small liberal arts school

✅ Small class sizes
✅ Within a shortish drive from home
✅ The ability to double major in early childhood education and French
✅ Opportunities to study abroad
✅ A cute campus with off-campus amenities within walking distance

OWU checked all of these boxes. It also didn't hurt that OWU awarded her a Wesleyan Scholarship (one of its highest academic awards) and accepted her into both its Honor Program and Global Scholars Program.

To listen to Norah talk about the "why" of her college choice and the process she used to make her decision, tune in to this week's episode of The Norah and Dad Show, which you'll find on Apple Podcasts, Spotify, Amazon Music, Overcast, via your browser, and any everywhere else you get your podcasts

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

The 5th nominee for the Worst Employer of 2024 is … the abhorrent optometrist

"The only thing that changed from when I left for maternity leave to when I was terminated was the fact that I had a baby. It sent a clear message they didn't value me as a person, as a new mom. It was shocking."

Those are the words of Dr. Alana Curatola, who is now suing her former employer, Northwest Eye Surgeons, for discrimination.

YouTuber faces legal challenge against his overly broad severance agreement

"Employer and Employee agree to keep the existence and terms of this Agreement confidential and to not disclose its provisions to anyone.… Employer and Employee further agree not to take actions or make statements, written or oral, that would disparage or otherwise defame the goodwill or reputation of the other."

Those are the confidentiality and non-disparagement terms of the severance agreement that Steven Crowder, a popular right-wing YouTuber, provided to Jared Mittelo, his producer.

And they are why Mittelo has filed an unfair labor practice charge with the NLRB.

WIRTW #712: the 'lunatics are in my hall' edition

On April 8, Cleveland will be in the path of totality for a solar eclipse.

One hasn't happened here since 1806; the next one won't be until 2444.

People are losing their minds. Businesses and schools will be closed. Hotels have been fully booked for a year or more. Festivals are occurring. Bars and restaurants are holding special events. Traffic is predicted to be a mess for miles and miles around. All for a few minutes of the moon blocking out the sun, which you can't see without special glasses to keep you from going blind.

You know what? I couldn't care less. It's a hassle, not a celebration.  I'm an eclipse scrooge.

What about you? Are you "Team Eclipse" or "Team Meh"?

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

If your company just agreed to pay $2 million to settle a horrific sexual harassment lawsuit, maybe don’t trash the plaintiff on social media

If your company just agreed to pay $2 million to settle a lawsuit alleging horrific workplace sexual abuse and other sexual harassment, maybe it's not the best idea to trash the plaintiff on social media.

Last week, I nominated National Raisin for the Worst Employe of 2024, based on the allegations of a lawsuit it just settled with the EEOC. Those allegations consisted of widespread sexual abuse perpetrated by a male supervisor. To make matters worse, the lawsuit also alleged that HR did nothing when employees complained.

WIRTW #711: the ‘podcast’ edition

"Jon, tell us about your law firm and your legal practice."

"I'm so glad you asked, Lorain County Business Insights Podcast."

I recently sat down with host Ed Skimin to discuss that and more. We talked about Wickens Herzer Panza's comprehensive legal services for small to mid-sized businesses, our global reach through Mackrell International, the scary implications of artificial intelligence, and the unique challenges of representing craft breweries.

Listen via Apple Podcasts, Spotify, Google Podcasts, Amazon Music, on the web, or wherever else you get your podcasts.

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Here's what I read (and listened to) this week that you should, too.

Cheers to the CHEERS Act! 🍻

If today's dysfunctionally fractured Congress can agree on anything on a bipartisan basis, it must be a good idea.

Raise your glass to the Creating Hospitality Economic Enhancement for Restaurants and Servers (CHEERS) Act, which Reps. Darin LaHood (R) and Steven Horsford (D) recently introduced.

The CHEERS Act would provide tax incentives for bars, restaurants and entertainment venues to install energy-efficient keg and tap systems. The goal is to help stabilize and revitalize hospitality establishments, which are still struggling years after the pandemic.

The 4th nominee for the Worst Employer of 2024 is … the repulsive raisin-maker

National Raisin has agreed to pay $2 million to settle an EEOC sexual harassment and retaliation lawsuit that the agency filed on behalf of a class of female agricultural workers, many of whom only speak Spanish.

According to the EEOC's lawsuit, National Raisin subjected its female fruit sorters to "widespread" sexual harassment perpetrated by a male supervisor, which included:

Does DEI training create a hostile work environment?

"You can't force me to sit through DEI training! I'm White. It creates a racially hostile work environment."

That's what one employee recently argued in a racial harassment lawsuit he filed against his employer, a state department of corrections, which had mandated DEI training for all employees.

The 10th Circuit Court of Appeals affirmed the dismissal of this lawsuit, concluding that this training could not constitute a hostile work environment because it only occurred one and lacked any race-based ridicule or insults.

But all is not roses for employers and their efforts to offer DEI training to better their workplaces. 

It’s past time to self-regulate your use of noncompete agreements before the government does it for you

Boston Beer Co., the brewer of Sam Adams and other craft beverages, is taking heat for its overuse of noncompete agreements. In a recent article, the Boston Globe cites examples of several former lower-level Boston Beer employees forced out of the industry they love because of the noncompete agreements their former employer forced them to sign at their time of hire.

Legally speaking, to be enforceable a post-employment restrictive covenant must be narrowly tailored by time, geography, and a reasonable business interest worthy of protection. Yet, like the Boston Beer example, all too often employers require many too many employees to sign overly broad and overly restrictive agreements. It's bullying and a scare tactic. It's also legally unsupportable. And it's also why the federal government and many states are looking at regulatory and legislative solutions to limit their use.

WIRTW #710: the “if it ain’t broke…” edition

If you have a child applying for college this year, you know the pain that we are currently feeling. This year, Congress decided to change the process to apply for federal financial aid. The changes to the FAFSA ("Free Application for Federal Student Aid") were supposed to make applying for financial aid easier. Instead, it has caused delays, uncertainty, and stress. 

Under the former system, students would have already received their offer letters from the colleges and universities to which they had been admitted, including the full breakdown of all financial aid and the net cost of attendance. That "net cost" is what enables us to make apples-to-apples comparisons of schools and to help our high-school seniors make an informed decision about the best academic, social, and financial choice. 

Instead, the Department of Education has struggled to process the information it has received under this new process. As a result, the DOE has not yet even started providing FAFSA information to colleges and universities, which, in turn, are scrambling to assure students that they will know their financial aid packages and cost of attendance before freshman orientation.

Congress, we know how dysfunctional you have become. You can barely agree on what should be your most core function — legislation to keep our government open — let alone meeting our nation's more pressing needs such as funding for Ukraine, immigration reform, or protecting women's productive rights. Then again, given how you've botched what should be the lowest hanging of fruit when you actually do something, I'm not sure you're actually qualified to govern anything.

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

 

It’s long past time to Ctrl-Alt-Del the FLSA

The Fair Labor Standard Act is not a good law because employers have zero hope in complying with it.

I know this fact is true because I just read Bradford v. Team Pizza. In that case, the 6th Circuit rejected both the employer's and the plaintiffs' interpretation of the FLSA and punted the case back to the district court to interpret the statute instead.

Spoliation is BAD

Pro tip: it's really, REALLY bad to destroy evidence in your case.

Case in point: Jones v. Riot Hospitality Group, which the 9th Circuit just decided.

President Biden’s proposed 2025 federal budget offers a lot for employers to chew on

If you want to learn about a government's priorities, trace the money. 

President Biden's proposed federal budget for FY 2025 contains significant funding that would impact the workplace.

WIRTW #709: the “opener” edition

My home, and this Friday space, have been consumed by music for the past few weeks. The 27th and final Tri-C High School Rock Off has come to a close. Norah played a killer set of 2 originals — Potential Spam (which Cleveland.com reporter Malcolm X Abram called "a cool near-shoegaze original") and Boys Like You — and 2 covers — a PG-rated You Oughta Know that included an Alanis singalong that filled the Rock Hall's glass pyramid and Jefferson Airplane's White Rabbit. I loved every second of watching her completely own that massive stage and crowd. You can tell that she's living her best life. Norah did not win or place in the top 3, but that's not what truly matters, is it?

You can watch her full set here.

The Rock Off might be over, but Norah's 2024 of music is just getting started. There are gigs at venues all over town, a music festival appearance in August, and, on May 19, she'll be the opening act for Rhett Miller of the Old 97's when he plays at the Music Box Supper Club. Given that Norah first sang with Rhett 10 years ago, it will be a fitting full-circle moment to cap her K–12 years less than 2 weeks before graduation. Tickets are on sale now. 

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

I ❤️ being a lawyer

I ❤️ being a lawyer. It presents something new and different each day, with each day offering an opportunity to learn.

For example, yesterday I read the 6th Circuit’s decision in Jones v. Producers Service Corp., which asked this question: "Under § 207(f) of the FLSA, when do an employee's job duties 'necessitate' irregular hours?"

“DEI” is not a 4-letter word

"DEI" is not a 4-letter word … no matter what some people want you to believe.

Companies such as Sherwin-Williams are scrapping their internal use of the words "Diversity," "Equity," and "Inclusion," and are replacing them with words such as "Belonging" and "Culture."

WIRTW #708: the “boys like you” edition

Tomorrow night, I'll be at the Rock & Roll Hall of Fame trying not to be a nervous wreck during the finals of the Tri-C High School Rock Off. The reality, however, is that no matter the result's, Norah has already won. 

She advanced to the finals, joining 11 of the best high school rock bands in the country in one the premium events for high school musicians nationwide.

She got great, constructive feedback from the panel of music industry people that judged her semifinal round, and will do so again in the finals.

She's received some great recognition and press (including recording an episode for the Rockin' the Suburbs podcast that aired earlier this week). 

And she went into the studio at Tri-C to record a song for the Rock Off's compilation album. "Boys Like You" — a jangly piece of acoustic power pop that will get stuck in your head — released today. You can listen to it here.

Rock Off tickets are still available for purchase (code: norah), but don't wait too long. This event is always a sell-out. 

If you're attending, Norah plays at 7:10 pm. If you're not attending but want to know where else you can see her play, click here for a full list of her gigs. (Pay close attention to the one on May 19 … it's a biggie.)

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

When dealing with the FLSA, “administrative” may not mean what you think it means

It's really unfortunate that when Congress, in 1938, enacted the Fair Labor Standards Act it chose the label "administrative" for the law's broadest white-collar overtime exemption. That one word has caused more misunderstanding, confusion, litigation, and legal fees than any other word in the FLSA.

"Administrative" does not mean any employee who performs office or other non-manual work. Instead, it means any employee who earns a minimum salary of $684 per week AND who performs office or other non-manual work for which the employee's primary duty: (i) is directly related to the management or general business operations of the employer or the employer's customers; and (ii) includes the exercise of discretion and independent judgment with respect to matters of significance.

These issues were just front and center in Blackstone v. Dearborn Life Ins. Co.

IVF discrimination = sex discrimniation

With in vitro fertilization all over the news for the past week, it's time for this important public service announcement — IVF discrimination = sex discrimination.

Courts have long held that Title VII's definition of "sex" (as expanded by the Pregnancy Discrimination Act) unequivocally includes infertility treatments.

WIRTW #707: the “mojo” edition

One, two, three, four
There's a plague on the planet
And they went to law school
A bunch of hornswogglers
Treat us like fools
Know who I'm talkin' about
Let me hear you shout

Destroy all lawyers

Destroy all lawyers

Bunch of evil weasel poseurs

Destroy all lawyers

Watch them push them papers

And bend them laws

Will the chump with the most money

Buy them all?

Grab them by their tails

Spit in their eyes

Well they charge you by the minute

While we get paid by the hour

What I want to know

Is how they steal all this power?

[Chorus]

They got, they got their own bar

Where they drink pints of greed

Let's spay and neuter 'em

So that they can't breed

So let us

Is at the bottom of the sea

Well they're not even evil

Yeah, they're worse than the devil

Gonna blow up the planet

Charge God double

[Chorus] 

R.I.P. Mojo Nixon. 

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

Pumping up employee lactation rights

Employers, hear to me now and believe me later — it is unacceptable to force a lactating employee to pump her breast milk in an open stockroom corner or in an open office.

That's precisely, however, what two McDonald's employees allege happened to them in two different stores.

Bankrupcy, labor unions, and remaining union free

Fair State Brewing, one the nation's first unionized craft breweries, just filed for Chapter 11 bankruptcy protection.

Meanwhile and elsewhere, Aslin Beer Co. just said that it will voluntarily recognize the union petition filed by a group of its taproom employees to join the SEIU.

Evan Sallee, Fair State's founder and CEO, tells Eater than its union has nothing whatsoever to do with the bankruptcy filing.

WIRTW #706: the “final exam” edition

I left y'all with quite the cliffhanger last Friday. How would Norah do in her semifinal round at the Tri-C High School Rock Off? "No matter what happens tomorrow night, I'm so proud of her." That's what I wrote last week. Of course, however, I really wanted her to advance to the Final Exam. What parent wouldn't?

In the semifinals, the acts draft their performance slot for the night, with the draft order set by ticket sales. Norah ended up drafting 5th. After saying for weeks that she did not want to close the show, she then chose to close the show. The 10th band out of 10. A singer-songwriter choosing to take the stage in a rock 'n' roll competition after 3-plus hours of loud music played by driving rock bands. "A baller move," we told her when she texted us from the Rock Hall. Her response: "Go big or go home!"

Well, she went big. She played the best 15-minutes of music of her life and breezed into the Final Exam. Choosing to close was absolutely the right choice for her to make, especially when your last song is her chill-inducing version of Jefferson Airplane's "White Rabbit." You can watch her full set here. 

Tickets for the Final Exam are on sale now. The event is the Rock & Roll Hall of Fame on March 2 at 6 pm. Your $20 ticket ($15 for students) not only gets you a few hours of music from some of the best high school rock bands (and high school singer-songwriters) in the country, but also full admission to the Rock Hall during the event. You can buy your tickets here (code: norah). I'd love to see you there, and Norah would love your support.

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

Baning salary discussion bans

🛑 Employers, for the love of all that is holy, STOP BANNING EMPLOYEES FROM DISCUSSING THEIR WAGES!!! 🛑

A supervisor of subsidiary of Duke University is accused of doing just that, and now the employer is in hot water with the National Labor Relations Board.

According to the just-filed NLRB complaint, the supervisor allegedly instructed workers during a meeting "not to discuss their salaries." When one of those employees later raised "concerns about employees' salaries and equity in pay," they were fired.

Remote work as a reasonable accommodation

A former UCLA employee has sued the university, claiming that if fired him in retaliation for requesting to continue to work from home after its "work from home" order ended.

According to his complaint, the 23-year employee, who last worked as a mechanic in the physical sciences machine shop, suffers from disabilities that affect his arms and hands. The lawsuit alleges that his supervisor denied his request to continue working from home after Covid work from home orders ended, despite most other employees continuing to work remotely. After the university later laid him off, he sued.

Courts are generally in agreement on two things related to remote work as a reasonable accommodation: 1) regular, in-person work is an essential function of most jobs; and 2) remote work as a reasonable accommodation is a highly fact-specific inquiry.

Ending gender bias in dress codes

During the recent Super Bowl halftime show, Usher took off his shirt and everyone oohed and aahed over his performance. Twenty years ago, Janet Jackson's breast was accidentally exposed during her halftime performance and the world stopped to nearly ruin her career over a wardrobe malfunction.

We need to have a serious conversation about sex-based stereotypes, double standards, and workplace dress code.

Here are 7 tips to draft a non-discriminatory, gender-neutral dress code for your workplace:

Ending the “ism” of ageism

"Ageism is really one of the last acceptable 'isms' that society tolerates," says AARP senior advisor Heather Tinsley-Fix.

The numbers back her up. According to a recent AARP report, two-thirds of adults over 50 believe older workers face age discrimination in the workplace, and 90% of that group believe ageism is commonplace.

How do we best combat ageism and age discrimination in our workplaces? Here are 6 suggestions.

WIRTW #705: the “3.33 percent” edition

I believe that it's important to celebrate our victories, not just in our careers, but also in our personal lives.

Tomorrow night, my daughter will stand on stage at the Rock & Roll Hall of Fame in front of 1,000-plus people and play a 15-minute of set of original music and covers. It will be just Norah, her voice, and her guitar. This will be her sixth (and final) time playing the High School Rock Off. She participated for several years as a School of Rock exhibition. Then, in 2020, she entered in two separate bands and took one to the finals.

In total, Norah has played the Rock Hall's stage more than every other artist who is inducted in the Rock Hall combined. At the age of 17, she's a seasoned veteran of the local music scene.

Which is why I was surprised when, in the car on the way to school this morning, Norah told me that she's a little nervous about tomorrow night. "I've never played in front of that many people solo," she said.

No matter what happens tomorrow night, I'm so proud of her. It takes guts anytime you get on stage and perform. It takes a ton of guts to do it solo, without the support of loud rock band backing you, and even more so when you're sharing your inner-most thoughts through your own songs.

It doesn't matter what the judges say tomorrow night, Norah has already won.

(From The Chronicle-Telegram's Rock-Off preview)

If you're planning on attending the Rock Off and don't yet have your ticket, they are on sale here (code: norah). It's the best deal in town for a Saturday night — $20 ($15 for students) for performances by 10 bands plus a full admission to the Rock Hall.

If you can't make the event but want a taste of what you'll miss, last weekend Norah recorded a "tiny-desk style" session. Thanks to Jeff Koteles of Banzai Sound for offering his space and providing the audio mix, and to Digital FX Media for recording the video and supplying the finished product, which you can watch here.

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

The 3rd nominee for the Worst Employer of 2024 is … the supersized sex offender

A McDonald's franchisee has agreed to pay $4.35 million to settle claims brought by a 14-year-old worker raped by a manager.

According to the now settled lawsuit, the franchisee, Rice Enterprises, knew that its manager, Walter Garner, was sexually harassing child employees before Garner raped the plaintiff. Garner, already a registered sex offender during his employment, later pleaded guilty to criminal charges stemming from the rape and is now in prison.

The allegations are as bad as you might think. 

A DEI smackdown

It's a DEI heavyweight battle of epic proportions that played out of X over the past week.

In the blue corner, hailing from Big D, the owner of the Dallas Mavericks and serial entrepreneur Mark Cuban: 

I've never hired anyone based exclusively on race, gender, religion. I only ever hire the person that will put my business in the best position to succeed. And yes, race and gender can be part of the equation. I view diversity as a competitive advantage.

And in the red corner, hailing from our nation's capital, EEOC Commissioner Andrea Lucas: 

Unfortunately you’re dead wrong on black-letter Title VII law. As a general rule, race/sex can't even be a "motivating factor" — nor a plus factor, tie-breaker, or tipping point.… This isn't an opinion; reasonable minds can't disagree on this point. It's the plain text of Title VII.

WIRTW #704: the “backyard” edition

Live Nation and the Rock & Roll Hall of Fame announced that this year's Rock Off will be the final Rock Off, at least sponsored by Live Nation and held at the Rock Hall. Barry Gabel, the senior vice president of marketing and sponsorship sales at Live Nation and the Rock Off's creator and biggest champion, is pulling the plug after this year's event because of staffing issues. He told Cleveland Magazine, however, that there's hope that the Rock Off will continue in some form in 2025 and beyond.

We're getting tons of calls from so many different venues and people that don't want to see this end, and while I'm not really available to discuss if there can be something that will follow after this year — it most probably will not be with Live Nation — but who knows. There are just too many great venues around town and too many great local clubs and passionate music people that don't want to see the Rock Off end. So we'll see what happens.

Well, Norah and I have an idea to save the Tri-C High School Rock Off in years to come. The Norah and Dad Show Rock Off!

Tickets for this year's Rock Off are available here (checkout code: NORAH). Norah performs next Saturday, Feb. 10.

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

Whether you like it or not, it’s illegal to discriminate against transgender employees

“Do you have female parts?”

“You’re not a real man.”
“If I just say ‘she’, that’s what she is.”

Those are among the allegations that the EEOC made against T.C. Wheelers Bar & Pizzeria on behalf of Quinn Gambino, a transgender man the restaurant employed as a cook. Mr. Gambino complained to management about the harassment, but it continued unabated.