WIRTW #726: the 'lobstah' edition

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

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

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

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

Don't 💩 where you 🍽️

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

The risks in treating inside salespeople as "exempt"

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

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

WIRTW #725: the 'sandwich' edition

It's been a crazy month. We spent last weekend helping my parents unpack and organize their new apartment in the senior living community to which they just moved. In less than two week we move my daughter into college. Meanwhile, I'm also in the midst of taking and defending a dozen depositions in a contentious piece of litigation, while also managing my busy employment law and beer law practices.

I'm a card-carrying member of the sandwich generation.

The "sandwich generation" refers to individuals who are simultaneously caring for their aging parents while supporting their own children. We are "sandwiched" between the older and younger generations, often facing significant emotional, financial, and physical demands as we manage the dual responsibilities of caregiving and parenting. The term highlights the unique pressures and challenges we experience as we strive to balance family, personal, and work needs.

Employers, you have employees who join me in the sandwich generation. The question is what are you doing to support them? Here are five suggestions.

1. Flexible Work Schedules: Allow employees to adjust their work hours or work remotely to accommodate caregiving responsibilities.

2. Paid Family Leave: Offer paid leave for employees to care for sick or aging family members.

3. Employee Assistance Programs: Provide access to counseling, support groups, and resources for managing stress and caregiving challenges.

4. Caregiver Support Resources: Offer information and resources on eldercare services, childcare options, and caregiving best practices.

5. Work-Life Balance Initiatives: Promote a culture that values work-life balance and encourages employees to take time for themselves and their families.

By implementing these strategies, employers can help alleviate some of the pressures faced by employees in the sandwich generation, leading to improved job satisfaction, productivity, and overall well-being. It will also you from losing quality employees who will seek more supportive workplaces.

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

Off-duty social media is just as actionable as sexual harassment as on-duty misconduct

"An employer cannot be liable for what an employee posts online while off-the-clock. Personal time is personal time; it's irrelevant to the workplace." That is an 100% incorrect statement of the law, according to the 9th Circuit Court of Appeals in Okonowsky v. Garland.

Linda Okonowsky worked as a staff psychologist in a federal prison. She discovered that a lieutenant with whom she worked operated an Instagram account followed by more than 100 prison employees, which contained overtly sexist (and racist, anti-Semitic, homophobic, and transphobic) content. It also contained offensive content about the workplace and horrible content that specifically targeted her, including one about the male staff "gang banging" her.

When she complained to the prison's safety manager, he told her that she needed to "toughen up" or "get a sense of humor." It took months of complaints and escalating social-media awfulness before the prison finally took action.

Bevisförstöring is not the name of an IKEA bookcase; it's Swedish for spoliation of evidence.

A federal judge recently ordered IKEA to pay $566,731.53 in attorneys' fees and costs as a part of sanctions for deleting employee emails in three consolidated class-action age-discrimination lawsuits.

Here's what happened. In April 2022, the court ordered IKEA to produce the email files of its chief human resources officer, global head of DEI, several store managers, and its recruitment manager. This production was to occur on a rolling basis and be completed by the end of 2023.

IKEA failed to produce a single email. In fact, it couldn't produce any emails because they had been deleted years earlier, after already being part of an earlier production order—a fact IKEA hid from the court and opposing counsel for months.

"DEI hire" is the new N-word.

After President Biden dropped out of the 2024 campaign and elevated his Vice President, Kamala Harris, as the presumptive Democratic nominee, supporters of Donald Trump started attacking her as a "DEI hire."

For example, during an interview with CNN’s Manu Raju, Republican Rep. Tim Burchett said this: "100 percent, she was a DEI hire." He's not only one pushing this narrative.

When one person calls another a "DEI hire," they mean they are unqualified, unskilled, and hired only because of their race. They say it because they cannot say publicly what they really want to say. 

What does Project 2025 mean for employers? Labor law edition

Today is the 3rd and final part of my series on what Project 2025 means for employers. Today, I examine its proposed impact on the National Labor Relations Act and union-management relations. (You can find parts 1 and 2 here.)

Project 2025 proposes the following seven key changes to the NLRA:

What does Project 2025 mean for employers? Wage and hour edition

In part 2 of my series on what Project 2025 means for employers and employment law, let's examine its proposed impact on wage and hour laws.

You'll find part 1, covering workplace discrimination laws, here.

Project 2025 proposes the following 5 key changes to the FLSA:

What does Project 2025 mean for employers? Discrimination edition

I promise this post is not political … but we do have to talk about Project 2025.

Project 2025 is an initiative organized by the Heritage Foundation aimed at preparing for a conservative presidential administration after the November election. Its goal is to promote conservative policies and ensure that the right personnel are in place to implement those policies from day one of the administration. Some call it a utopian dream, others (🙋‍♂️) an authoritarian dystopian nightmare.

Regardless of where you fall in this philosophical political debate, Project 2025 contains a lot of information of interest to employers — specifically, what changes they could expect to labor and employment laws in a second Trump administration.

WIRTW #724: the 'summer' edition

Our summer is sadly winding down. Vacation is over. I have one kid leaving for college in less than four weeks, and other starting his high-school sophomore year a week later. So, I'll be trying to spend as much time with my kids in the coming weeks as possible. This includes enjoying my daughter's final few gigs of a very busy music summer.

If you want to catch norah marie gigging before she heads off to college, these are your final five chances.

• July 20 @ 6:30 pm — Crocker Park
• July 25 @ 6 pm — 8th Day Brewing
• Aug 2 @ 6 pm — The Olde Wine Cellar
• Aug 3 @ 3 pm — Vibin' in the Vines Festival
• Aug 11 @ 3 pm — Eleventhree Brewing

All events are free. And, if you happen to know of a brewery, winery, coffee shop, or other venue in central Ohio booking live music, please let me know. 

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Here's what I read and heard that you should, too.

"Do as I say, not as I do" — HR leader fired for harassment loses discrimination lawsuit

A female HR supervisor attends an out-of-town leadership retreat with some co-workers. They observe her at the hotel bar telling off-color jokes, directing repeated profanity at employees who refused to drink alcohol, and toasting a slur for the female anatomy.

Several complain to her boss about the inappropriate behavior. The company investigates and ultimately fires her for violating its harassment policy.

The HR supervisor then sues for sex discrimination, claiming that the company did not fire a male employee who engaged in similar misconduct. Specifically, she claims that he had once asked her "if the carpet matched the drapes" (which she advised the company during its investigation).

Discrimination liability for "agents" extends to AI vendors, says federal court

Can an HR software vendor be held liable for the alleged discriminatory hiring decisions of its customers? According to one federal court, the answer is yes.

Derek Mobley — a Black man over the age of 40 who suffers from anxiety and depression — alleges that he applied for 80-100 positions since 2018 that use Workday as a screening tool … and has been rejected every single time despite his qualifications.

Mobley claims that Workday's artificial intelligence unlawfully favors applicants outside of protected classes through its reliance on algorithms and inputs influenced by conscious and unconscious biases.

Last week, the federal judge hearing Mobley's claim rejected Workday's efforts to dismiss the lawsuit on the basis that it was not Mobley's "employer" and thus the workplace anti-discrimination laws do not cover its actions in this context.

Refusing to participate in mandatory training isn't "protected activity," it's insubordination

"I am not taking this training because it's a joke … making non-white colleagues all victims and turning white colleagues … into villains."

That's what Charles Vavra wrote in an email to the HR Director of Honeywell International, his now former employer, after she had reminded him of the company's requirement that he complete its unconscious bias training.

Over the next few weeks, the HR Director and other company officers tried to convince Vavra to complete the training. Vavra's response? "Whatever the consequences … I will accept." The consequences were Vavra's termination.

Vavra had a strange way of showing his acceptance of those consequences. He sued Honeywell for retaliation, claiming that his opposition to mandatory DEI training constituted protected activity under Title VII.

WIRTW #723: the 'A Portuguesa' edition

I love to travel for two primary reasons: to see things and to experience things.

On my vacation to São Miguel in the Azores Islands, I saw lots of amazing things — beautiful coastal viewpoints, crater lakes from both their rims and from inside, bubbling volcanic baths, dolphins, whales, waterfalls, cows (so many cows), and lush green landscapes.

But one experience will stick with me as the standout memory of this vacation.

Portugal was playing France in the quarterfinals of the Euros. Since we a) are a soccer-loving family; and b) were in Portugal, we couldn’t pass up the opportunity to watch the game with the locals.

We gathered in the Campo de São Francisco in the capital city of Ponta Delgada, where the local government had set up a large viewing screen. More than a thousand football crazy Azoreans joined us. It was special.

The crowd rose and fell with the highs and lows of what ended up being a 0-0 draw that went to penalties. While the match didn’t end how we wanted, the experience will live with me forever.

Here's a quick snippet of the crowd singing the Portuguese national anthem, A Portuguesa, pre-match.

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

What is "implicit bias" and how to combat it in your business

Dwight Jackson, a Black man, claims that the Shinola Hotel denied him a job interview because of his race. He knows this, he says, because he reapplied for the same job at the same hotel with the same resume ... with one key difference. He changed his name to John Jebrowski. While the hotel didn't offer Jackson an interview, it did offer one to Jebrowski. That, Jackson says in his recently filed lawsuit, is race discrimination.

Inherent bias refers to the attitudes or stereotypes that unconsciously affect our understanding, actions, and decisions. These biases can silently influence hiring decisions, leading to discrimination based on characteristics such as race. Name bias is one example of how inherent biases manifest themselves.

WIRTW #722: the 'Até logo' edition

I'll be back with a fresh spirit and fresh content on July 10. This lawyer is officially on vacation.

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

This is why you train your management on how to respond to workplace harassment

During Joyce Morgan's employment at Convenient Food Mar, her co-worker, Todd Wise, subjected her to sustained and prolonged sexual harassment. Morgan complained to both her shift leader and the store manager. When they did nothing, she then complained to the store manager's supervisor. Despite her repeated complaints about Wise and the harassment to which he subjected her and others, no one at the company ever did anything. She ultimately resigned and sued.

Following a jury trial and a verdict in her favor, Morgan won a $221,688.56, which included compensatory damages, punitive damages, and attorneys' fees.

Temporary impairments as ADA disabilities

Does recovery following surgery qualify as a "disability" under the ADA? Well, it depends.

Consider, for example, the recent court of appeals decision in Long v. KeltanBW. Long worked as a floating teacher in a daycare center owned and operated by KeltanBW. Less than one month after starting her job, Long took time off for liposuction surgery. Upon her return to work eight weeks later, the employer assigned her to the preschool rooms to accommodate her temporary post-surgery lifting restrictions. Within a couple of months, however, KeltanBW fired her for poor attendance. 

Long sued, claiming disability discrimination.

Which of the Ten Commandments allows for a reasonable accommodation?

"What do you say to teachers who don't share your religious views?"

 "Don't look at it."

That was the exchange between CNN's Boris Sanchez and Louisiana State Representative Lauren Ventrella, co-author of that state's new law which mandates the display of the Ten Commandments in every public-school classroom.

First Amendment issues aside (and there are BIG First Amendment issues here), what happens when teacher of a faith that doesn't believe in the Ten Commandments or who is an atheist objects to the display in their classroom and asks for a reasonable accommodation under Title VII?

WIRTW #721: the 'Left of Boom' edition

Being as active as I am on social media has allowed me to amass some pretty cool friends over the years. I recently had the chance to sit down with two of them virtually, Phil Wilson and Mike VanDervort, on their The Left of Boom Show. We discussed all things going on in the world of labor relations, including Starbucks, 10(j) injunctions and the Supreme Court, the future (or lack thereof) of Chevron deference, and Anchor Brewing.

You can watch or listen here, and also via Apple Podcasts, Spotify, or wherever else you get your podcasts.

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

Long live Anchor Brewing! We'll have to wait and see about its labor union. ⚓ 🍻

News broke earlier this month that Hamdi Ulukaya, the billionaire founder of Chobani yogurt, purchased the assets of Anchor Brewing after its former owner, international beer conglomerate Sapporo, had unexpectedly shuttered the brewery nearly a year ago. Anchor was one of the country's few unionized craft breweries. Ulukaya has said that he would hire back as many former employees as possible but didn't know whether the union would be part of his new operations. If he hires enough of the former employees, however, he may not have a choice on the union. That issue will depend on whether Ulukaya's Anchor Brewing is a "successor" of Sapporo's Anchor Brewing.

Call me … maybe? 6th Circuit saves FMLA claim of employee who failed to follow employer's call-in rules.

Latrice Crispell, a 23-year employee of FCA working as a floater on its truck assembly line, suffered from major depression and anxiety, which qualified her for intermittent leave under the FMLA. FCA had a strict 30-minute call-in rule, requiring employees to notify their supervisors of any absence at least 30 minutes before their shift, or later with a statement explaining the missed call-in.

Crispell struggled to comply with that rule during severe flare-ups of her condition, which she argued made it impossible for her to call in on time and made her absent or late 15 times during the final three months of her employment. Despite submitting explanations and a doctor's note about how her illness made it impossible for her to comply with the 30-minute rule during flare-ups, FCA disciplined and ultimately terminated her.

Despite the employee failing to meet FCA's call-in requirements for her intermittent leave, the 6th Circuit reversed the trial court's grant of summary judgment to the employer. 

It was the best of opinions; it was the worst of opinions…

Today, the EEOC's regulations interpreting the Pregnant Workers Fairness Act go into effect. Thanks to two very recent federal court opinions from two different federal courts, however, it remains an open issue as to whether the EEOC can enforce those parts of its regulations that require employers to reasonably accommodate employees' elective abortions not necessary to treat a medical condition related to pregnancy.

The 7th nominee for the Worst Employer of 2024 is … the murder threatener

"I'm going to kill you."
"You're a dead man."

That's what Mario and Jaime Lopez, two of the owners and managers of Bianco Rosso, (allegedly) told one of their restaurant's former employees when confronting him at his new job. The issue that made them so mad? A Department of Labor investigation into management stealing from the tip pool.

According to a recently filed DOL lawsuit, Bianco Rosso and its three owners, Cristina Ramirez and the Lopezes, engaged in unlawful retaliation against employees who participated in the DOL's investigation.

Just because you only use the n-word on your personal TikTok doesn't mean your employer can't fire you for it.

Until yesterday, I had never heard of a "trad-wife" or of Lilly Gaddis.

A trad-wife is a burgeoning trend of women embracing traditional gender roles and lifestyles of the 1950s. Gaddis is an adherent of the lifestyle and promoter of its beliefs on social media.

In a viral TikTok video, Gaddis (white) used the n-word to describe her friends' husbands. Her employer quickly fired her and released a statement about her termination and upholding its values of diversity, inclusivity, respect, and equality.

As seen on Reddit: payment for training time

As seen on the legaladvice subreddit:

"My company just told us about a new policy where any meeting or training that is held over the lunch hour where food will be provided is unpaid. Some of these lunch meetings are optional trainings, but some are mandatory department meetings. Is it legal for the company to deny pay for time spent at these meetings just because lunch is provided?"

Answer: It is not legal, and the time employees spend during those lunch meetings must be paid.

An update on one of 2023's Worst Employers

Q: What do you win for coming in 6th place in 2023's Worst Employer contest?

A: 20 years in federal prison.

That's what Stavros Papantoniadis, the owner of Stash’s Pizza, is potentially facing after a jury convicted him on three counts of forced labor and three counts of attempted forced labor.

A ruff reasonable accommodation claim

Samantha Howard worked as a pharmacist for Boswell Regional Health Center. She suffers from Type I diabetes along with hypoglycemic unawareness, which prevents her from knowing when her blood sugar dangerously drops. To help manager her blood sugar, she requested a diabetic-alert service dog as a reasonable accommodation. The employer, however, denied the request because of hygiene concerns and risk of contamination to sterile work areas.

The 8th Cir. Court of Appeals heldheld that the employer had lawfully denied Howard's accommodation request for two key reasons: (1) she had performed her essential job functions for more than a year, and therefore the accommodation was not necessary; and (2) the employer had valid and legitimate concerns about contamination and risks to the sterility of the work environment.

WIRTW #720: the 'Azores' edition

Last summer, my family and I fell in love hard with Portugal. So, this summer we are going back, sort of.

In a little over three weeks we leave for the Azores, an autonomous region of Portugal. It's a subtropical archipelago of nine islands known as the "Hawaii of the Atlantic." 

We'll be on São Miguel, the largest of the islands, choosing to explore that one island in depth over the span of 8 days instead of hopping between islands and only getting a smaller taste of several. It's renowned for its stunning landscapes, which include green hills, crater lakes, and ocean-side miradouros (viewpoints), volcanic hot springs, black-sand beaches, marine life, and cows. (In fact, there are twice as many cows on the island than people.)

For any of you who've been to São Miguel, what are your must-sees and must-dos? What are your favorite hikes? What off-the-beaten-path sights are worth our time? Which tours do you recommend? How about some A+ restaurant recommendations?

Thanks in advance for playing tour guide for me. I'll reward you with pictures and stories after my return.

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

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Why we fought.

Some numbers to consider on June 6, 2024, the 80th anniversary of D-Day:

75 million: the number of people who died during WWII.

420,000: the number of American casualties during WWII.

5,000: the number of American soldiers wounded on D-Day.

2,501: the number of American soldiers who died on D-Day.

151: the number of days until Election Day. 

Remember those who fought and died on that beach in Normandy, France, when you vote on November 5, 2024. Some of us envision an America more closely aligned with the values we fought against from 1941 – 1945 than those we fought to save.

Please don't forget the "human" in human resources

"How about just being a human being in a situation like this!"

"Find a way to help her, be a human being!"
"Can we please prioritize the human aspect of the workplace?"
"Gee, imagine if they'd been just a tiny bit empathetic."
"C'mon, be a mensch."

Those were just a few of the LinkedIn comments to this week's post about the employee denied a reasonable accommodation upon her return to work from cancer surgery.

Context, not "magic words," is what matters in judging reasonable accommodation requests, 6th Circuit says

"I'm struggling and need some time to get back to normal. Working 53 hours my first week back is hard for me physically."

That's what Mary Ellen Yannick, a bakery department manager at Kroger's, told Marli Schnepp, her store manager, within a week of Yannick's return from a four-month leave of absence following breast-cancer surgery.

In response, and instead of discussing with Yannick a reasonable accommodation, Schnepp told her that "business was business." If she couldn't hack it, Schnepp told her, she'd have to step down. That's exactly what Yannick did, transferring to a lesser position at another store. She also sued.

WIRTW #719: the 'pomp and circumstance' edition

Tomorrow, Norah, will graduate from high school. Earlier this week, we attended the Senior Brunch, an annual tradition at her school celebrating the graduating seniors. At the end of the ceremony, Norah took possession of her time capsule, a thoughtful project that the mom of one of her fellow classmates organized from kindergarten through 7th grade. That mom held on to them for 12 years. Now, Norah has it. 

That night, we sat around the kitchen table after dinner and opened each of the envelopes. Contained within the kindergarten envelope was a letter I wrote to future Norah for her high school graduation.

Here's what I wrote.

May 29, 2012

Dear Norah,

We've watched you grow so much as a person and as a student during your kindergarten year that I am not sure exactly who will be reading this letter 12 years from now. What I do know is that you will be the same loving, compassionate, empathetic, confident, smart person you are today, just with 12 added years of maturity.

I know that your mom and I will be proud of the young lady you will have become, and all that you will have accomplished as we prepare to send you off to college. I know that we will trust you to continue to make the good, wise decisions that have served you well to this point in your life. I know that whatever you do, and whatever choices you make, we will be proud of you and support you. And never forget that no matter what, you will always be our little girl.

Most of all, I want you to know that we love you very much and we are always here for you. Now go do great things, like you always do.

Love,

Daddy

The thing is, if I was writing that letter today it would say much of the same. 

Now excuse me while I go find a tissue. These "allergies" are murder on my eyes.

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

"Why would you want a man's job?" = big job interview no-no, says EEOC in lawsuit

"Why would you want a man's job?" Why do you want to take a job away from a man?"

Those interview questions are at the center of a lawsuit the EEOC filed against Waste Industries, a solid waste removal, recycling pickup, and landfill operation business.

The 6th nominee for the Worst Employer of 2024 is … the racist recruiter

"Only U.S. Born Citizens [white] … [Don’t share with candidates]."

That's the text of a job listing that an Arthur Grand Industries recruiter posted on Indeed.

WIRTW #718: the ‘fireflies' edition

"Do you want to bring a backup guitar with you?"

That was the question I ask my daughter as we load up the car to leave for her Sunday-night gig opening for Rhett Miller.

"No," she responds. "I'll be fine with just my main guitar."

Flash forward to 7 pm that night. "Please give it up for norah marie!" And guess what? No sound from her guitar. Not one single amplified note. As it turns out, the guitar had a dead battery. After a few minutes of down time to swap dead for live — which included a very kind and gracious Rhett offering Norah his own guitar to play during her set — she was up and running. 

Despite the glitchy start, Norah was great as always. 

You can watch the (edited) video of her whole set here, or just the clip of her singing Rhett's song, "Fireflies," with him, which includes a sweet story of Rhett's own technical glitch when he was a 17-year-old opener for Rosanne Cash.

I know I'm fighting a losing battle when I offer dad advice to a stubborn 17-year-old, but I can continue to try, right?

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

Should jury verdict forms in discrimination cases include the McDonnell Douglas factors?

Jury trials are often won or lost based on the instructions and verdict forms the court provides the jury.

Jury instructions outline the legal standards that the jury must use to decide the case. Verdict forms allow the jury to record its decisions on the issues in the case and typically include specific questions that the jury must answer reflecting their findings on claim.

In Craddock v. FedEx Corp. Servs.Craddock v. FedEx Corp. Servs., the plaintiff — a Black woman fired after an altercation at work — complained on appeal about an alleged inconsistency in the jury's verdict.

Prompt engineering tips for generative AI

Innovate or die. I held out long enough, but it's time for me to learn how to use ChatGPT and incorporate it into my legal practice. That was one of my biggest takeaways from the Mackrell International Annual General Meeting earlier this month.

What does one do when one wants to learn how to effectively use ChatGPT? Ask ChatGPT! Here's the prompt I used: "I'm a lawyer conducting research on employment law. Can you give me the top 6 prompt engineering tips to optimize my results on ChatGPT?"

Here's what ChatGPT recommends:

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.