Does civility still matter?

Some apparently don't think civility matters any more. 

"Your body, my choice" signs are popping up across the country, while elsewhere Black students are receiving anonymous texts about "picking cotton." The results of the 2024 Presidential election have emboldened some to express their most offensive thoughts.

I'm not ready, however, to give up on civility. But we have to take a stand. No matter who sits in the Oval Office, words still matter.

Do you know what to do if ICE raids your business?

With Donald Trump running on campaign promise of the mass roundup and deportation of millions of undocumented immigrants, many businesses in the new year may face unannounced visits from Immigration and Customs Enforcement. Donald Trump has said that he plans mass deportations on day one, meaning that "if ICE shows up" could become "when ICE shows up" for employers across the country. Are you ready?

Having a response plan in place is essential, and it's crucial that your staff, particularly those who may first encounter agents, like a receptionist, are trained on what to do. Here's how to get started:

WIRTW #737: the 'speed racer' edition

Do you remember your first traffic ticket? I do. I was 17, driving to high school, and it involved me hitting an actual, live person with my car at the tender age of 17. To hear the rest of the story, and also hear all about my daughter's inaugural ticket, you'll have to tune into this week's episode of the Norah and Dad Show Podcast, which you'll find on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and anywhere else you get your podcasts.

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In other news, on Tuesday, 11/19 at noon, I'll be part of an all-star panel of employment lawyers that my friend Eric Meyer is hosting. He and I, along with Dan Schwartz, Amy Epstein Gluck, and Dessi Day, will be discussing how the election will shape employment law in 2025 and beyond. It's free to join, but you do need to pre-register here.

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

A open letter to my daughter

Dear Norah,

"Dad, I'm scared." That was your message to me in the early hours of Wednesday morning, as you watched the election slip away from us.

I understand. You're scared for your rights—your reproductive rights, your right to privacy, and the rights of your friends to love and marry whomever they choose. You're scared because you're beginning to feel like a majority in your country sees you as "less than." They treat you, value you, as "less than."

Seeing you hurt like this breaks my heart. You feel crushed, betrayed by the country you call home.

Here's what I want you to know. 

A tip on employee tips

Here's a tip for management — keep your hands off of your employees' tips.

A recent case filing by class of employees against a cannabis company accusing management of pilfering their tips. The Department of Labor and the Fair Labor Standards Act, however, are crystal clear: tips belong to the workers who earn them, period.

How to keep a union out of your business

Workers are organizing at unprecedented rates. From October 1, 2023, to September 30, 2024, the National Labor Relations Board received 3,286 union election petitions, up 27% from the year prior and more than double the number received in 2021. Much of the push comes from service industries like retail, education, and healthcare. Union drives, however, don't start in a vacuum. They happen when employees feel ignored, underpaid, or disrespected.

Here's the hard truth: The best union-avoidance strategy isn't about playing defense or hiring fancy consultants to "bust" a union. It's about being a great employer, period.

Service charges: A hidden trap for employees (and customers)

You just wrapped up a great meal at your favorite restaurant. The server drops off the check, and there's a surprise—your $100 tab is now $120, thanks to a $20 "service charge" added at the bottom. But here's the kicker: under the Fair Labor Standards Act (FLSA), that service charge isn't considered wages for your server. The restaurant can legally keep it all without sharing a dime.

When employees just can't get along

Dan and Todd? They used to be best friends. But things got messy, and now they can't stand each other. Dan's ready to move on, but Todd? Not so much. Problem is, they work on the same team you manage, and now Dan's knocking on your door, hoping you'll step in and fix things.

Sure, you could tell them, "Just avoid each other and carry on." Sounds easy, right? Why make two people who aren't friends anymore work together if they don't want to? But here's the catch: avoiding this issue might be an easy short-term fix, but it's not a long-term solution that actually works. In most workplaces, people can't just steer clear of each other, especially if they need to interact on the daily.

So instead of hoping it all blows over, try these steps to get Dan and Todd back on the same page professionally—even if the friendship ship has sailed.

Harassment by "comedy" is anything but a laughing matter

A CEO hires a stand-up comedian to warm up employees before delivering the keynote at the company's annual all-hands meeting. But the comedian's set is anything but workplace appropriate. His "jokes" insult and offend everyone — Blacks, Hispanics, Jews, Muslims, women, LGBTQ+ individuals. Everyone, that is, except white men.

It's clear your employees aren't amused. Some look angry and offended. Others walk out in protest.

Now imagine you're the CEO. What do you do?

WIRTW #736: the 'vote' edition

On the latest episode of The Norah and Dad Show, my daughter and I discussed voting. Specifically, we discussed Norah's experience voting, which she did for the very first time when she was home for fall break a couple of weeks ago.

My wife and I accompanied Norah to early vote in the Presidential Election. It was quite the party at the County Board of Elections, with a massive crowd, along with bells and cheers for first-time voters.

Voting is an act that might appear small, but it's actually monumental. It is a right that I've always taken seriously, and it's one of those moments that makes you reflect on the values you've tried to instill as a parent. Standing alongside Norah at the polls, I thought about the conversations we've had over the years—about fairness, democracy, and the importance of using your voice. She now gets to make her voice heard in a new, impactful way.

Watching your child become an active participant in our democracy is a proud moment. It's not just about the issues or the candidates on the ballot (although with this election it kind of is); it's about her stepping into adulthood with a sense of responsibility and purpose. I hope it's an experience that she'll carry with her every time she goes to the polls in the future.

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

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In other news, the Lake Ridge Academy soccer team ... lost, in heartbreaking fashion. A 0-0 draw through 80 minutes of regulation, 30 minutes of scoreless overtime, and penalties that did not go our way. Congrats for a great season, even though it did not end the way they (and I) wanted.

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

The 12th nominee for the Worst Employer of 2024 is … the hurricane haranguer

What's worse than keeping employees on the job during a natural disaster? How about doing that, knowing full well how dangerous the situation is—and sneaking out yourself before things hit the fan? Impact Plastics and its CEO, Gerald O'Connor, seem to have written the playbook on reckless disregard for human life.

The company and its fearless leader have now been sued by the family of Johnny Peterson, one of their employees tragically killed during the floods caused by Hurricane Helene. According to the lawsuit, management allegedly forced workers to stay at the plant, ignoring the increasingly dangerous conditions. While businesses around them shut down and sent employees home, Impact Plastics thought it was a great time to keep their team on the clock.

And when did they finally decide to send workers home? After the parking lot flooded, power was lost, and the full brunt of the storm was bearing down on them. Too little, too late.

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

"Why would you want to do a man's job?" That's one of the sexist questions the EEOC alleges Waste Industries—a solid waste removal, recycling, and landfill service provider—repeatedly asked female job applicants.

As a result, the company agreed to pay $3.1 million to settle the agency’s pattern-or-practice sex discrimination claim.

WIRTW #735: the 'client' edition

Being a party in a lawsuit is a humbling experience for any lawyer. After decades of representing clients, I recently found myself on the other side—this time as a plaintiff. I can't dive into specifics, but the experience left me with several important lessons to share.

First, the emotional weight of litigation is real. No matter how rational or well-prepared you are, being a party in a lawsuit brings an element of personal stress that's hard to fully understand until you've lived it. It's a good reminder that when clients seem frustrated or overwhelmed, it's not just the legal process—they're feeling the impact of uncertainty on their life or business.

One surprising lesson I learned is the importance of patience. As lawyers, we often forget how slow litigation can feel from the client's perspective. Every delay, motion, or rescheduled meeting drags out the process. Experiencing those delays firsthand gave me a deeper understanding of how frustrating it can be to wait for answers. Moving forward, I'll be more mindful of this in my practice and do what I can to streamline things for my clients whenever possible.

Lastly, I learned how valuable a settlement can be. It's easy to get wrapped up in "winning," but the truth is, not every battle is worth dragging out. Compromise, when approached strategically, isn't a defeat—it's a way to bring closure, minimize risk, and move on to what matters most.

This experience gave me new perspective to carry into my practice. Sometimes the best insights come from walking a mile in someone else's shoes, or this case my own shoes from the other side of the street.

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In other news, Lake Ridge Academy won their opening round playoff game last night versus Shaw, 8 – 0. They are now into the District Semifinal next Thursday against an opponent tbd. 

Donovan had a ball on his foot in the box, but did not think he could get the shot off before the defender closed on him, so he made the unselfish play and passed to a teammate. 

Stay tuned for further updates next week.

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

Keeping politics civil at work

With the 2024 election right around the corner, it's inevitable that political talk will creep into your workplace. And let's be honest—politics today isn't exactly a calm or respectful topic of conversation. As a result, political discussions can quickly escalate into political conflicts and HR nightmares.
Just because the world outside may feel divided and hostile, however, doesn't mean your workplace has to be.

Here are 5 tips to keep your workplace civil during these most uncivil of times.

One headache of an FMLA case

SEPTA fired Ephriam Rodriquez from his job as a bus driver for excessive absences. Rodriguez sued, claiming that the termination violated his rights under the FMLA because a migraine headache caused his final absence (a fact of which he advised SEPTA prior to his termination). 

The 3rd Circuit concluded that the FMLA did not protect Rodriquez's absence because his migraines did not qualify as a "serious health condition."

The 11th nominee for the Worst Employer of 2024 is … the high-risk terminator

"There might be something wrong with my daughter's heart." 

That's the message Chelsey Beck sent to her manager the morning she was supposed to start new-hire training at Victra, a Verizon retailer. She needed to go to her doctor immediately and would need to miss training that day.

The manager's response? "I'm so sorry to hear about that and I hope everything is okay. Please let me know if you need anything. I'll send positive vibes your way and hope it was a mistake."

So far so good.

But he continued.

WIRTW #734: the 'working for the parents' weekend' edition

It's a rite of passage for all moms and all dads of college students — Parents' Weekend. We spent last weekend at Ohio Wesleyan's Parents' Weekend with Norah. We ate, we shopped, we ate some more, and we shared a cup of coffee with her French professor. It was a great weekend, and you can hear all about it on the most recent episode of the Norah and Dad Show, which you can find on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, the web, and anywhere else you get your podcasts.

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

SCOTUS to weigh in on the burden of proof in "reverse" discrimination cases

The purpose of our workplace discrimination laws is to ensure that all employees are treated equally, right? Maybe … but maybe not.

Next term, the Supreme Court will hear the appeal of Marlean Ames, a straight woman who sued the Department of Youth Services for sex discrimination under Title VII. She claimed she was discriminated against her because of her sexual orientation, alleging that she was passed over for a promotion, demoted, and that a gay man was then promoted into her former position.

Ames claimed sex discrimination, but the 6th Circuit disagreed, citing her failure to establish the necessary "background circumstances."

What are the "background circumstances" needed to show that an employer is among the small subset that discriminates against the majority? According to the 6th Circuit, "Plaintiffs typically make that showing with evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination by the employer against members of the majority group." Ames lost because she showed neither.

Tipped wages and sexual harassment

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

First, ick!

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

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

I think I saw an UFO yesterday morning.

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

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

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

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

Why?

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

Here's why:

Spying on your sick employees is a recipe for disaster

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

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

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

Use caution when poaching competing employees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harassing text messages doom employee's discrimination lawsuit

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

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

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

"100% healed" = 100% illegal

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

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

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

WIRTW #731: the 'futebol' edition

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

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

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

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

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

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

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

A textbook example of FAFO

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

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

Musings on Springfield and national origin discrimination and harassment

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

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

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

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

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

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

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

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

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

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

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

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

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

Location tracking of employee raises interesting legal issues

In an effort to dial back its current work-from-home culture, PricewaterhouseCoopers will start tracking where some of its employees work. It will start requiring its UK employees to spend a minimum of 3 days per week in the office and will use location data to manage their in-person attendance.

While there is nothing per se illegal about tracking employees in this manner, but I question whether it's a good HR practice. Indeed, there's quite the creep factor. How much will your employees mind Big Brother tracking all of their movements, and how will it impact morale?

And there still are some legal risks.

WIRTW #729: the 'mobile' edition

As cell phones have become ubiquitous among teenagers, their impact on student life is undeniable—and not always positive. Numerous studies have highlighted the risks and dangers of cell phone use by high school students:

📲 Mental Health: Research shows that excessive cell phone use is linked to increased anxiety, depression, and sleep disturbances among teens. A study by Common Sense Media found that 50% of teens feel addicted to their phones.

📲 Academic Performance: Studies have found that schools that ban mobile phones see an increase in student test scores, with low-achieving students benefiting the most.

📲 Cyberbullying: According to the Cyberbullying Research Center, 59% of U.S. teens have experienced cyberbullying, much of which occurs via mobile devices.

Given these concerns, it's no surprise that lawmakers are taking action. At least 14 states have enacted laws or regulations restricting cell phone use in schools. These regulations vary from complete bans during school hours to limiting use during specific times like class or exams.

Even though the evidence suggests that curbing cell phone use could lead to safer, healthier, and more academically focused environments for our students, I oppose outright cell phone bans in schools. These bans are a lazy solution to a complex issue.

While I believe that cell phones don't belong in the classroom, I also believe policies that outright bans phones do these kids a grave disservice. These devices are not going anywhere. Once our kids graduate from high school, they will enter college or the workplace with no guardrails on their tech access at all. Instead of taking phones away, we should be giving them the necessary tools to manage their use later in life. Regulate and limit during school hours, instruct on appropriate use, and discipline those kids who break the rules.

Schools should be educating our children on the responsible management of technology. Instead, these prohibitions abdicate that responsibility, kicking the can down the road for universities and employers to handle.

What are your thoughts on cell phone bans in high schools? Is it a step in the right direction, or are there better ways to manage the impact of technology on our youth? Head over to LinkedIn and answer my poll question to weigh in on this important issue.

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

The 8th nominee for the Worst Employer of 2024 is … the dirty dog

If you name your business "Bark If You're Dirty," maybe you get the sexual harassment lawsuit you deserve.

The pet store just agreed to pay $340,000 to settle an EEOC lawsuit that the agency brought on behalf of class of female employees.

The allegations of repeated sexual harassment are for the dogs.

Meteorologist fired for 'sharing recovery journey publicly' raises issues of disability discrimination

"Thank you for going on this journey with me despite the yucky medical stuff I have going on. I'm happy to announce I am 9 months sober!"

That's what local television meteorologist and personality Hollie Strano wrote on her personal Instagram last month. Eleven days later, her employer, WKYC/Tegna, fired her. (The "yucky medical stuff" she referred to is ovarian cancer.)

"I believe the actions of WKYC and Tegna demonstrate the stigma surrounding addiction that so many in our community experience every day," Strano shared after her termination.

I believe this goes beyond stigma; it looks like disability discrimination.

WIRTW #728: the 'season 3' edition

This week marks a first in the three-year history of The Norah and Dad Show — the podcast I co-host alongside my 18-year-old daughter. It's the first episode we recorded in which we both weren't under the same roof.

I was in the study in our home, and Norah was in a study lounge in her college dorm. 

What started as a nice way for me to bond with my teenage daughter has now transformed into a recorded discussion of me keeping up with everything going in the life of my collegiate daughter. I am stoked that she wants to continue recording these shows, and we plan on doing so every two weeks.

You can listen to this week's episode on Apple Podcasts, Spotify, Amazon Music, Overcast, the web, and everywhere else you get your podcasts. And while you're there, hit the subscribe button to make sure you get new episodes delivered to you when they drop every other Tuesday.

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

How many chances does an employee get under a "Last Chance Agreement"?

When is a Last Chance Agreement not a "last chance" agreement? When the 6th Circuit reviews it, apparently.

In Moore v. Coca Cola Bottling Co., the 6th Circuit held that an employee's last chance agreement, signed after the employee tested positive for marijuana, did not bar his subsequent discrimination lawsuit when terminated following yet another positive test.

The LCA stated, in relevant part, "Moore releases and forever discharges the Company … from any and all liability of any kind whatsoever, relating to his employment with the Company, arising prior to the date of this Agreement[.]"

The 80/20/30 Rule is official a zero

The Department of Labor's "80/20/30 Rule" for tipped employees is dead.

That Rule broke down the work of tipped employees into 3 different categories of work:

1. Tip-producing — Work that "provides service to customers for which tipped employees receive tips."

2. Directly supporting — Work "performed in preparation of or to otherwise assist tip-producing customer service work." Think rolling silverware, filling saltshakers, or cutting garnishes.

3. Not part of the tipped occupation — Work that is neither tip-producing nor directly supporting, such as cleaning bathrooms.

This is what allyship looks like

"Please know that there is a more than insignificant chance that a lesbian prepared your food last evening. A gay man might have mixed your drinks. A trans woman may have trained your server to give you such great service. A person who identifies with -- get this -- they/them pronouns may have sat you at your table."

That was just a part of the scathing comment the executive of The Original Vinnie's left on a customer's Google review, which used a gay slur to express his displeasure with the perceived sexual orientation of others in the restaurant during a recent visit.

The FTC's noncompete ban is DOA

It was only a matter of time before a federal court blocked the FTC's noncompete rule, which would have banned virtually all noncompete agreements on a federal level. The odds were high it would be a Texas federal court, and also high that it would be a nationwide injunction.

That's exactly what happened yesterday.

Judge Ada Brown of the U.S. District Court for the Northern District of Texas entered a nationwide injunction blocking the rule from taking effect a mere 15 days before its effective date.

WIRTW #727: the 'college' edition

Saying goodbye is never easy. It's that much more difficult when you leave your child.

Yesterday, we dropped our oldest off at college for the first time.

It's one of those moments that you know is coming but never really feels real until you're in the middle of it. And yesterday I was smack dab in the middle of it. As I gave Norah one final hug and watched her walk away with a mix of excitement and nerves, I felt my own a flood of emotions — joy, nostalgia, and yes, (more than) a little bit of heartache.

I also felt a lot of pride. Pride in the confident adult she has become. And pride in my wife and I for our success in completing one of our most central tasks as parents.

As Norah walked away from us last evening, we were all in tears. She FaceTimed me four hours later to let me know that she was happy and was going to be okay. So am I.

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

The interactive process is a two-way street

The interactive process for disability reasonable accommodations is a two-way street, requiring participation from both the employer and the employee. If either party fails to participate or withdraws from the process, that party will likely lose in a subsequent ADA failure-to-accommodate lawsuit.

A recent case, Wilson v. Dept. of Mental Health & Addiction Services, decided by the 6th Circuit, serves as an example.

Don't weigh your female employees

Local restaurant owner Bobby George — famous for allegedly not hiring Black people, breaking Covid safety rules, and instituting a "Last Supper" boycott of the Olympics in his restaurants — has been charged with nine counts of rape, attempted murder, and kidnapping. The allegations are horrific, and if convicted he'll likely spend the rest of his life in prison.

In reading about his criminal case, something about how he allegedly runs his restaurants caught my attention. Allegedly, he weighs females as a condition of employment and won't hire any who don't fit his "look" — skinny and able to fit into an extra-small t-shirt.

Don't retaliate against unionizing employees

"You're fired!" That's what the Dallas Black Dance Theatre said to its entire company of dancers a mere months after they voted to unionize.

To make matters worse, the employer seemingly admitted its misconduct in a post on its official Instagram page: "It is a decision that DBDT does not take lightly, but one that is necessary to preserve our legacy of professionalism and excellence in dance. Unfortunately, we recently discovered that our dancers engaged in conduct that fails to align with DBDT's standard of performing at the highest level of artistic excellence and violates several of DBDT’s policies."

Discrimination for "religious nonconformity" IS religious discrimination

"Prayer is the exclusive way to prevent Covid infection."

That's what Brad Amos says his bosses at Ramsey Solutions told him after the pandemic started. The company expressly prohibited remote work, and actively discouraged, demeaned, and mocked anyone who believed in other preventative measures such as masks and social distancing.

Amos instead believed in the golden rule — that he should wear a mask and keep his distance as the best way to protect his co-workers and his family. Thus, while at work he kept his distance and kept wearing a mask.

Within four months, Ramsey fired Amos for a "lack of humility" and because he "was not a good fit" … which Amos alleged in his subsequent religious discrimination lawsuit was not-so-subtle code for his failure to submit to Ramsey's religion and religious practices.

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.