WIRTW #753: the 'autocracy' edition

"Politics don't belong on LinkedIn."

I've been seeing that sentiment a lot lately in the comments on my posts about what's happening to our country.

And I get it. Politics for the sake of politics probably belongs on other platforms. But in today's interconnected world, the lines between politics, society, and business are more blurred than ever. This isn't politics for the sake of politics. This is about defending the democratic foundations that underpin a functioning society—one in which businesses can operate with stability, the rule of law is respected, and lawyers and law firms can serve clients within a system that values justice, accountability, and fairness.

Take, for example, the latest report from the Varieties of Democracy (V-Dem) project, which concludes that the U.S. is on the verge of losing its status as a democracy. If current trends continue, we could soon find ourselves grouped with countries like Hungary, India, and Turkey—nations that still technically hold elections, but where the outcomes are about as surprising as the ending of a Hallmark Christmas movie.

For those unfamiliar, V-Dem is one of the leading global democracy trackers. It measures things like election integrity, press freedom, and judicial independence. Their latest report places the U.S. firmly in the "trending poorly" category. We're sliding away from being a true democracy and rapidly approaching what experts call "electoral autocracy"—a polite way of saying the system still exists, but it's rigged enough that those in power don't have to worry too much about losing.

According to V-Dem, we're already deep into democratic decline. Trump has expanded presidential power by pardoning Capitol rioters and installing loyalists in key positions, undermined democratic institutions by targeting independent agencies and the press, and aligned with autocratic tendencies by distancing us from our traditional allies and global democratic norms.

If we don't pull the emergency brake soon (as in, within the next six months), we may end up looking back on this moment the way people felt watching the final episode of Game of Thrones—realizing too late that the good days were already behind us.

This isn't a left vs. right issue. It's not about partisanship. And it's not about politics. It's about democracy.

And for professionals on a platform like LinkedIn, these conversations aren't just acceptable, they're essential. The health of our democracy directly affects my business—lawyering. As a lawyer who works within—and deeply values—the rule of law, these issues are not abstract. They impact my business, my clients, and the systems on which I rely every day.

That's why I write about them. And it's why I'll keep doing it no matter how many people slide into my comments to tell me, "Politics don't belong on LinkedIn."

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

Teen employment is about education, not filling low-wage labor gaps

I'm a firm believer in the value of teenagers holding part-time jobs.

My first was as a mobile DJ, spinning records at Bar/Bat Mitzvahs, weddings, and sweet 16 parties. I also bussed tables in a nursing home dining room and unloaded giant rolls of fabric from trucks at a warehouse. Each job taught me about hard work, punctuality, taking direction, and dealing with people. They also taught me the value of money and the importance of earning my own spending cash.

That kind of experience is invaluable. It builds character, work ethic, and confidence. It's why both of my kids work, even though most of their friends do not. Just because I can provide walking-around money doesn't mean I should. If my daughter wants to drive a car, she'd better have the money to put gas in it and help cover the insurance. That's part of my responsibility as a parent—getting them ready for adulthood.

But what we're seeing now in some states (including Ohio) is something very different.

A teachable moment on digital communication security

An editor at The Atlantic was accidentally added to a high-level Signal group chat where Trump administration officials were planning military strikes in Yemen.

Yes, you read that right. A journalist, in a chat with top government officials, while they were actively discussing where and when to launch missiles.

It's an appalling breach of national security. It’s also a teachable moment for employers.

If the highest of federal officials can accidentally include a reporter in a thread outlining imminent military action, your company's employees can accidentally include the wrong person in a message about a client, a deal, a product launch, or a sensitive HR issue.

WIRTW #752: the 'this is 40' edition

"Could the President decide that he wasn't going to appoint or allow to remain in office any heads of agencies over 40 years old?"

"I think that that would be within the President’s constitutional authority under the removal power."

That exchange took place earlier this week between Judge Karen Henderson, a Reagan appointee to the D.C. Circuit Court of Appeals, and Deputy Assistant Attorney General Eric McArthur during proceedings over the termination of board members from two independent federal agencies, the National Labor Relations Board and the Merit Systems Protection Board.

The claim that Trump has the constitutional authority to fire employees based on their age is appalling on its own. The Age Discrimination in Employment Act, which protects employees 40 and older, has plenty to say about that claim.

Even more disturbing, however, are the broader implications of the government's argument. Replace "over 40" with "Black," "female," "gay," "lesbian," "transgender," "Muslim," "Jewish," "disabled," or any other protected class. By McArthur's reasoning, those terminations would be just as lawful under Trump's "constitutional removal power." The government is arguing that Trump has the constitutional authority to remake the federal workforce into one only comprised of while, male, cisgender, under 40, non-disabled, Christians.

That argument isn't just legally dubious—it's a direct attack on the principles of equal opportunity and non-discrimination that underpin our society and our democracy. If accepted, it would open the door to a federal workforce shaped entirely by a President's personal biases, rather than merit, experience, or the law. The Constitution does not grant any President unchecked power to purge employees based on protected characteristics. This isn't about removal authority. It's about whether the rule of law still applies, even when the President finds it inconvenient to his agenda.

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

EEOC issues guidance on "DEI-related discrimination," but doesn't bother to define it

What is "DEI-related discrimination at work?" No one knows, including the EEOC.

Late yesterday, the EEOC released two new policy documents aimed at eliminating "unlawful DEI" in the workplace: What You Should Know About DEI-Related Discrimination at Work and What To Do If You Experience Discrimination Related to DEI at Work (the latter even available as a poster-sized PDF).

The most revealing line appears in the opening sentence of the "What You Should Know" document: 

"Diversity, Equity, and Inclusion (DEI) is a broad term that is not defined in Title VII of the Civil Rights Act of 1964."

Of course it's undefined, because DEI is not illegal.

This is what a constitutional crisis looks like

"For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose." – Chief Justice John Roberts

Translation: If you don't like a court ruling, you appeal. You don't ignore it. You don't retaliate against the judge. And you don't call for their impeachment.

And yet… here we are.

Yes, segregation is still illegal, and also amoral

Image via wiki commons, cc license

I can't believe I have to say this in 2025, but here we are … it's illegal and amoral to have racially segregated facilities in your business.

Why you shouldn't hate lawyers (or at least not all of us)

The LinkedIn comments on my recent post about Donald Trump targeting the Perkins Coie law firm really caught me off guard. I expected some debate and pushback. What I didn't expect, however, was the level of vitriol directed at lawyers and the legal profession in general. The anger, the contempt, the full-blown hatred, just for people doing their jobs.

I get it. Lawyers aren't winning any popularity contests. We're perceived somewhere between used car salesmen and that guy who takes up two spots in the parking lot. The lawyer jokes never stop. ("What do you call 1,000 lawyers at the bottom of the ocean? A good start." "Why don’t sharks attack lawyers? Professional courtesy." I've heard them all.)

Properly functioning boards of directors must hold CEOs accountable for their words and actions

Boards must hold CEOs accountable for their words and actions. Case in point: last week Tesla/SpaceX CEO Elon Musk resharing a post suggesting that Hitler wasn't responsible for the Holocaust, shifting blame instead to "public sector workers."

It's a statement as reckless as it is offensive, and it raises a bigger question: When a CEO behaves like this, where is the board of directors?

WIRTW #751: the 'losing' edition

"The Government's arguments … threaten to upend fundamental protections in our Constitution. But ours is not an autocracy; it is a system of checks and balances. Our Founders recognized that the concentration of power in one branch of government would spell disaster."

So wrote Judge Sparkle L. Sooknanan of the United States District Court for the District of Columbia, in her order granting summary judgment in favor of Susan Tsui Grundmann and restoring her to her position as one of the three members of the Federal Labor Relations Authority. On February 10, 2025, President Trump had abruptly terminated her without explanation, notice, or a hearing, and termination which Judge Sooknanan concluded was unlawful and in violation of the FLRA's enabling statute.

If you want to follow the status of all of the lawsuits currently pending against Donald Trump and his administration, check out Just Security's Litigation Tracker. If you're keeping track at home, As of yesterday, 119 lawsuits (and counting) have been filed against the current Trump administration challenging its actions. Trump has lost most thus far.

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

This is what effective HR looks like

"It's my job to stand up and be the buffer between politicals and career employees, and I'm just trying to do my goddamn job. They have no idea who they picked a f—king fight with."

That's Traci DiMartini, the ousted head of human resources at the IRS, speaking out after she says she was fired for telling agency employees that DOGE had orchestrated their firings.

The 2nd nominee for The Worst Employer of 2025 is … The Teenager Terrorizer

The EEOC has filed a lawsuit against six related entities operating Taco Bell restaurants for allegedly allowing a senior area manager to sexually harass female employees, including teenagers, and retaliating against a worker who reported the misconduct.

The lawsuit claims that the manager engaged in persistent sexual harassment of multiple female employees, including some who were underage, on a near-daily basis. 

Medical marijuana accommodation is highly state-law dependent

Q: Must an employer accommodate of an employee's legal use of medical marijuana?

A: It depends.

Case in point: Davis v. The Albert M. Higley Co.

Brian Davis, who used legally prescribed medical marijuana to treat his anxiety, depression, and ADHD, sued The Albert M. Higley Co. for wrongful failure to hire under Pennsylvania's Medical Marijuana Act (MMA) and for disability discrimination under the Pennsylvania Human Relations Act (PHRA).

WIRTW #750: the 'rule of law' edition

This news should alarm any rational lawyer. Donald Trump has issued an Executive Order punishing Perkins Coie, the law firm that represented Hillary Clinton's 2016 campaign.

The EO does the following:

• Directs federal agencies to identify and terminate, where legally permissible, contracts with Perkins Coie.
• Requires government contractors to disclose any business dealings with the firm.
• Mandates the suspension of any active security clearances held by individuals at Perkins Coie.
• Instructs the EEOC to review the diversity, equity, and inclusion practices of major law firms, including Perkins Coie, to ensure compliance with Title VII of the Civil Rights Act.
• Limits official access to federal government buildings for Perkins Coie employees.
• Advises government employees to restrict official engagements with Perkins Coie or its attorneys.

"This is an absolute honor to sign," Trump said from the Oval Office. I call it a horror show.

In response, the firm says that the EO "is patently unlawful, and we intend to challenge it."

Lawyers and law firms should never fear persecution from the President of the United States for simply doing their jobs. The rule of law depends on attorneys being able to zealously represent their clients—whether they are Democrats, Republicans, corporations, or individuals—without political retribution. A functioning democracy requires an independent legal profession, free from government intimidation. If lawyers can be punished for representing disfavored clients, our entire justice system, our rule of law, and our very Constitution are all at risk.

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

Hate is winning, and it sucks

"We are so thankful for the community we built together. And we’re confident that the connections we've made will continue to have a positive impact in Marysville. Thanks for 3 whimsical and zany years."

That's what Teddy Valinski, owner of Walking Distance Brewing Co., shared on the brewery's Facebook page on Feb. 25, three days before it poured its final pint and closed its doors for good.

Valinski didn't elaborate on the closure, except to tell The Columbus Dispatch, "Without a doubt, our business was slowed down from the slander. ... It's sad that the attacks made even supporters feel unsafe coming."

Reputation Matters: Handling a viral controvery

"With hair on your chest, you shouldn't be wearing a dress."

"You look like an idiot."

That's what Sam Johnson, the former CEO of telehealth company VisuWell, allegedly said while harassing and berating a teenage boy who chose to wear a dress to his high school prom. The confrontation happened at a hotel where the teen and his friends were taking prom pictures.

A video of the incident went viral, capturing Johnson's remarks. The backlash was immediate, and VisuWell's board quickly started worrying about the company's reputation.

WIRTW #749: the 'DEI webinar' edition

On 3/5 at 4 pm, I'll be part of a very timely webinar on the current state of Diversity, Equity, and Inclusion, Unlearning DEI is The Villain.

Here's the summary:

As corporate America grapples with new federal scrutiny of diversity initiatives, we're bringing together thought leaders to unpack the controversy and challenge assumptions. Host Lindsey T. H. Jackson leads an expert panel exploring DEI's true purpose beyond the headlines, the roots of current pushback, and practical strategies for building legally-sound, inclusive workplaces in this new landscape. 

Join me, along with host Lindsey T. H. Jackson, Kim "Kimfer" Flanery-Rye, MBA , and Justice Horn for this important conversation.

Register here.

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Also, please check out the most recent episode of The Norah and Dad Show. Noah and I not only tackle Valentine's Day, but also bad science pick-up lines, Chick-fil-A Daddy/Daughter dates, and robotic toilets. It all fits together; I promise. 

You'll find the episode 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.

Will SCOTUS heighten the evidentiary burden for plaintiffs in "reverse discrimination" cases?

Yesterday, the Supreme Court heard oral arguments in the case of Marlean Ames, a straight woman who sued the Department of Youth Services for sex discrimination under Title VII. She alleged that she was passed over for a promotion, then demoted, and that a gay man was subsequently promoted into her former position—all due to her sexual orientation (straight).

Ames claimed sex discrimination, but the 6th Circuit disagreed, ruling that she failed to establish the "'background circumstances' to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

What are these "background circumstances"? According to the 6th Circuit, plaintiffs typically prove this with evidence that a member of the relevant minority group (here, gay individuals) made the employment decision at issue or with statistical evidence demonstrating a pattern of discrimination against the majority group. Ames lost because she provided neither.

And that's the issue SCOTUS will decide—does "discrimination" under Title VII mean discrimination regardless of majority or minority status, or does it take on a different meaning when the claim comes from a member of the majority class? Does a member of the majority class have to show something "more" to establish discrimination.

Cards Against Liability

Have you ever played Cards Against Humanity? For the unfamiliar, it's a party game where players take turns filling in the blanks of absurd or provocative prompts from black cards with ridiculous or offensive white card responses. A judge then picks the funniest or most outrageous combination. The game is intentionally offensive, dark, and politically incorrect, often touching on sensitive topics like race, gender, religion, and politics.

It's also a ton of fun … in the right setting. The workplace is not that setting.

That's precisely what led to the hostile work environment claim in O'Connor v. Soul Surgery.

This is not normal

THIS IS NOT NORMAL

That was the subject line of an email sent by an EEOC judge to all of her coworkers in response to an agency directive that no orders be issued in LGBTQ+ discrimination cases without first being reviewed by headquarters. The directive was in response to Trump's executive order mandating that the federal government recognize only two sexes.

The judge, Karen Ortiz, urged her colleagues to resist. "It's time for us to embody the civil rights work we were hired to do and honor the oath to the Constitution that we all took," she wrote in her email.

To her surprise, she did not receive a single response. She soon learned why. Her email had been deleted from everyone's inbox. When she followed up, calling for the EEOC's acting chair to resign, the agency cut off her ability to send emails entirely.

WIRTW #748: the 'tracking' edition

"I have nothing to do with Project 2025. That's out there. I haven't read it. I don't want to read it, purposely. I'm not going to read it. This was a group of people that got together, they came up with some ideas. I guess some good, some bad. But it makes no difference."
— Donald J. Trump, 9/10/24, Presidential Debate

"They've been told officially, legally, in every way, that we have nothing to do with Project 25."
— Donald J. Trump, 8/22/24, Arizona-Mexico border

Liar, liar, pants on fire!

Take a look at the Project 2025 Tracker and tell me: Given the striking alignment between Trump's Executive Orders and the 900-page policy playbook he repeatedly disavowed during the campaign, is he governing straight from that right-wing, authoritarian, Christian Nationalist manifesto?

Because it sure looks like it.

Or, to borrow from another Trump favorite: "Believe me."

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

EEOC's policy shift to "protect American workers" is all about punishing non-Americans

If you hire non-Americans, the EEOC is coming after your business.

In a press release, Acting Chair Andrea Lucas says the following: 

"The EEOC is putting employers and other covered entities on notice: if you are part of the pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop.… Many employers have policies and practices preferring illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers—in direct violation of federal employment law prohibiting national origin discrimination."

Lucas's statement—while technically correct under Title VII—creates more problems than it solves. 

A tale of two approaches to noncompete agreements

Big news on noncompetes—from two very different directions.

First, the NLRB just quietly backed off its aggressive stance that most noncompetes violate federal labor law. The agency's Acting General Counsel rescinded 2023's memo that took that position, signaling a retreat from treating noncompetes as an unfair labor practice.

Meanwhile, Ohio lawmakers are headed in the opposite direction. Last month, they introduced SB 11, a bipartisan bill that would ban nearly all noncompetes in the state. If it passes, it'll be a game-changer, giving employees much more freedom to jump to competitors.

EEOC moves to dismiss transgender-discrimination lawsuits

"EEOC seeks to drop race discrimination cases brought on behalf of Black workers, citing Trump's executive order."

This is not a real headline.

But this is: "EEOC seeks to drop transgender discrimination cases, citing Trump's executive order."

What makes an accommodation "reasonable"?

Let's talk about Nguyen v. Bessent and the IRS's year-long effort to accommodate an employee with medical limitations.

Thuy-Ai Nguyen, an IT specialist at the IRS, requested multiple accommodations related to her severe depression, anxiety, and cognitive impairment. Her requests? A transfer to a different division, formal training, a part-time schedule, and the ability to work from home or transfer to a location with a shorter commute.

The IRS partially granted her requests: It offered her a new assignment with different immediate supervisors, on-the-job training, and a six-month part-time schedule. But it denied her telework request, arguing that in-person training was necessary. They also searched for positions closer to her home but found no vacancies.

Nguyen rejected the offer, arguing it wasn't a "reasonable" accommodation because her higher-level manager remained the same and she still had to commute to the same location.

The court disagreed.

WIRTW #747: the 'tariffs' edition

The Trump administration just announced new tariffs on aluminum and steel. That might not sound like a big deal to most, but for small businesses—including my beloved craft breweries—25% is a gut punch.

The craft beer industry is already struggling post-Covid. Breweries took on debt to survive the shutdowns, taproom traffic isn't what it used to be as many consumers shy away from alcohol, and supply-chain costs have been unpredictable and high. Now, just as many are trying to regain their footing, they get hit with another hurdle.

Most craft breweries package their beer in aluminum cans. If the cost of aluminum goes up because of tariffs, so does the cost of packaging. And it's not just cans, brewing equipment is made of steel. Fermenters, brite tanks, brewhouses, kegs, construction materials—all of it. So, breweries that want to replace aging equipment, expand, or just keep up with demand are looking at higher costs across the board.

And let's be clear: These costs don't just disappear. Breweries will have to pass them down to consumers. That means your favorite local beer is about to get more expensive. Meanwhile, the biggest players—macro-breweries with deep pockets—can absorb these price increases far more easily than your neighborhood local. This isn't just an economic issue; it's a competition killer.

Tariffs like these don't "protect American businesses." They protect big business at the expense of the little guys who drive innovation, create jobs, and bring character to our communities. If we want to support small businesses, we should be fighting against policies that make it harder for them to compete.

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

The attack on DEI does not mean employers must or should eliminate anti-harassment training

Even as some push back forcefully against DEI workplace initiatives, courts are pushing back even harder. Consider these excerpts from Diemert v. City of Seattle, in which a federal judge dismissed the claims of a white man who alleged that his employer's mandatory DEI training created a racially hostile work environment.

Protecting the rule of law

"Judges aren't allowed to control the executive's legitimate power." — Vice President JD Vance

We need to talk about the rule of law—because it's under serious attack.

How to respond to the Justice Department's DEI hitlist

"The Department of Justice's Civil Rights Division will investigate, eliminate, and penalize illegal DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector." 

 

That's the key sentence from a Feb. 5, 2025, memo that Attorney General Pam Bondi sent to all DOJ employees.

What does it mean? No one really knows. What we do know is that diversity, equity, inclusion, and accessibility are top priorities for this administration. The key question is how the administration defines "illegal."

Here's what we can infer so far:

WIRTW #746: the 'fly, eagles fly' edition

All-Pro Reels, CC BY-SA 2.0, via Wikimedia Commons

Are you ready for the Big Game? As a Philly native and die-hard Eagles fan, I sure am! 

Here's the official Ohio Employer Law Blog prediction for Sunday. Eagles 31 - Chiefs 27. Book it. Hurts, Barkley, et al., deny Reid, Mahomes, and Kelce their threepeat. Saquon runs for 165 and 2 touchdowns. Hurts throws for 200 and touchdown, and tush pushes his way for another. Brandon Graham returns from injury to score a key sack. And rookie phenom Quinyon Mitchell seals the win with a last minute interception. At least that's my dream scenario (other than a stress-free blowout).

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Also, please check out the latest episode of The Norah and Dad Show. Norah and I discuss her 2nd semester of college, her classes, and her recent biliteracy certification. We also discuss our recent naming to the list of the best dad and daughter podcasts. 

You'll find the episode 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.

What the EEOC just said—and didn't say—about the current state of workplace right

"The EEOC is open for business." That's what the agency just declared in a series of frequently asked questions about the impact of Trump's Executive Orders on its operations and the laws it enforces.

The FAQs acknowledge the agency's lack of a quorum and its resulting inability to issue or rescind guidance or policy statements. They also affirm that the EEOC continues to accept and process discrimination charges, conduct investigations, issue right-to-sue letters, and litigate cases.

What hiring and employment look like without DEI

What does a country without DEI look like? Some people say that's what they want. No more diversity, equity, and inclusion initiatives in hiring or the workplace. Just a pure "meritocracy."

So what does that actually look like?

The dos and don't of workplace AI policies

According to a recent BBC article, half of all workers use personal generative AI tools (like ChatGPT) at work—often without their employer's knowledge or permission. So the question isn't whether your employees are using AI—it's how to ensure they use it responsibly.

A well-crafted AI policy can help your business leverage AI's benefits while avoiding the legal, ethical, and operational risks that come with it. Here's a simple framework to help guide your workplace AI strategy:

We cannot simply oblish OSHA

"The Occupational Safety and Health Act of 1970 repealed. The Occupational Safety and Health Administration is abolished."

That's the full text of H.R. 86 — the Nullify Occupational Safety and Health Administration Act — with Representative Andy Biggs introduced in Congress late last week.

In support of his reckless and dangerous legislation, Biggs stated:

"OSHA's existence is yet another example of the federal government creating agencies to address issues that are more appropriately handled by state governments and private employers.… It's time that we fight back against the bloated federal government and eliminate agencies that never should have been established in the first place."

WIRTW #745: the 'biliterate' edition

Until this week, I thought being bilingual meant fluency in a second language—the ability to read, write, listen, and speak with ease. I was wrong. Someone who can do all of those things in two languages is actually biliterate. Being bilingual, on the other hand, simply means having the ability to speak in two languages.

I learned this distinction when the Ohio Wesleyan University Department of World Languages and Cultures certified my daughter as biliterate in French.

From the school's press release:

"Ohio Wesleyan University language students are now able to earn the Global Seal of Biliteracy, an internationally recognized micro-credential that enables them to verify their linguistic abilities when applying for jobs or graduate school. The university's Department of World Languages and Cultures began utilizing the third-party assessment this fall, with 19 students earning the 'functional fluency' biliteracy seal at the end of the semester. Andrea Colvin, Ph.D., chair of World Languages and Cultures, said students' earning the Global Seal of Biliteracy is 'a testament to their hard work, dedication, and passion for language learning.'"

Norah was one of eight students credentialed as biliterate in French. I don't know how many of those eight were also first-semester freshmen, but to be fair, she had 13 years of French education before starting college. All American schools should begin foreign language instruction in kindergarten—it's one of the greatest shortcomings of our education system.

Félicitations, Norah! Needless to say, I'm a very proud dad.

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

Microagressions as an adverse action

A "microaggression" is a subtle, often unintentional comment or action that conveys bias or discrimination against a marginalized group. For example, asking a person of color, "How did you get this job?" telling a colleague with an accent, "Your English is so good," or scheduling team-building activities at bars, knowing some employees don't drink for religious reasons.

In the right circumstances, however, microaggressions can also amount to an adverse action that supports a workplace retaliation claim.

Consider the recent case of Uchitel v. Solid Waste Services. 

Trump illegally guts the EEOC of its Democratic members

Remember last week when I told you that Trump would try to dismantle all of our federal workplace discrimination laws?

Well, the first shoe has just dropped—right on the EEOC’s neck.

Late yesterday, news broke that Trump fired two Democratic EEOC Commissioners, Jocelyn Samuels and Charlotte Burrows. This move leaves only two Commissioners on the five-member EEOC: Republican Andrea Lucas (whom Trump had previously named acting chair) and Democrat Kalpana Kotagal and no quorum. Without a quorum, the EEOC is now paralyzed—unable to issue rules, provide legal guidance, or direct staff to take key enforcement actions like pursuing litigation.

Missing time sheets doom employee's overtime claim

One of the most challenging tasks is proving a negative. Yet, this is precisely the problem employers face when defending wage-and-hour cases in which employees allege off-the-clock work. The employer argues that time records define the boundaries of the paid workday, while the employee contends they should be compensated for work performed outside of those clock-ins and clock-outs.

For example, consider Osborne v. JAB Management Services, a case recently decided by the 7th Circuit. Tara Osborne worked remotely as a technical support specialist for JAB, providing on-call support to its customers. As a salaried remote worker, she had the flexibility to design her own schedule. While she did not track any time worked over 40 hours per week, Osborne claimed she worked an average of 10 hours per day and 15 hours of overtime per week, including weekends.

The 7th Circuit affirmed the trial court's dismissal of Osborne's lawsuit for unpaid overtime. 

Taking from your employees' tip pool? It's illegal

It’s Dry January, and brewery owners are feeling the pinch. You might be tempted to supplement your income by dipping into your employees’ tip pool. That would be a huge mistake. It isn’t just bad form to take your employees’ hard-earned tips. It’s also illegal.

Under the FLSA, owners, managers, and supervisors are strictly forbidden from taking any part of pooled tips. There are no excuses.

Is Trump coming after Title VII next?

"Dad, did Trump just get rid of workplace discrimination laws?" That's the question my daughter asked me yesterday.

She was referring to his Executive Order entitled, Ending Illegal Discrimination and Restoring Merit Based Opportunity.

To answer Norah's question, no, that EO did not get rid of workplace discrimination laws. Instead, it dismantled federal Diversity, Equity, and Inclusion programs and placed all federal DEI employees on unpaid leave. It also rescinded Executive Order 11246, originally signed by President Lyndon Johnson in 1965, which prohibited federal contractors from discriminating based on race, color, religion, sex, or national origin, and further removing their affirmative action obligations in that regard.

WIRTW #744: the 'London Calling … the podcast' edition

In the latest episode of The Norah and Dad Show, we recap our family Christmas holiday to London. Here are links to everything we mention in the episode. 

• Hux Hotel
• Peter Pan Cup
• The Beatles Magical Mystery Walking Tour
• Third Man Records
• Arsenal Tickets
• Afternoon Tea at the Goring
• Atticus Blue (Leicester Square busker)
  
• Hawksmoor Seven Dials
• The Original Ted Lasso Tour
• Reale Camiceria (the "unofficial" Ted Lasso store)
• The Prince's Head Pub
• Camden Market 
  

You'll find the episode 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.

Neurodivergence is not an excuse for racism

"He's on the spectrum" is not an excuse for racism.

I've seen more than one person attempt to justify Elon Musk's Nazi salute, or dismiss it, citing his Asperger's syndrome, a form of autism spectrum disorder.

I call 🐂💩!

Bigotry, racism, and antisemitism are not symptoms of Asperger's or autism. They are, however, hallmarks of being a bigot, racist, or antisemite.

A lesson on ADA compliance

What happens when an employer fails to take an employee's disability seriously? It might look a lot like the case of Sutherland v. Peterson's Oil Service.

This recent First Circuit decision offers a crash course on the perils of ignoring an employee's requests for accommodations—and the consequences of getting it wrong.

WIRTW #743: the 'snowball at Santa' edition

If your employee is caught in a viral video calling an opposing fan the "c-word" at a football game, should he lose his job? Does it make a difference if your company is in the business of DEI consulting?

This story just played out following the Eagles playoff win over the Packers last weekend.

Ryan Caldwell, an employee at BCT Partners—a firm specializing in DEI—was captured on video during the game directing the vulgar and misogynistic insults toward a female Packers fan. The video quickly went viral to the tune of more than 31 million views. The public backlash was significant and swift.

The Eagles organization responded by banning Caldwell from their stadium for life. BCT Partners conducted an internal investigation and terminated Caldwell's employment, stating that his behavior was "vile, disgusting, unacceptable, and horrific," and stood in direct opposition to the company's core values of respect, dignity, and inclusion. Caldwell then issued a public apology, but added that the video "does not reflect the full context of what transpired," and that his actions "were not without provocation."

This incident serves as a stark reminder of the importance of aligning employees' behavior with a company's values, both on and off the clock. By proactively addressing these issues in real time, employers can mitigate risks, uphold their reputations, and foster a positive workplace culture that reflects their mission and values.

Three more points to make:

1. This is not a free speech issue. Private-sector employees have zero free speech rights in the workplace in this context. Regardless, freedom of speech does not equal freedom from consequences.

2. It is irrelevant whether this employee works for a DEI firm or any other company. His behavior was abhorrent, could damage the company's reputation, and is grounds for termination. The identity of his employer is just the ironic icing on the cake.

3. The employee's apology rings quite hollow. I don't care about the "context" of what happened or how he was "provoked." If you respond to provocation by calling a woman that awful word, that's who you are, period. And I certainly don't want you working for me.

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

SCOTUS eases burden of proof for employers in FLSA exemptions cases

Big news for employers: The Supreme Court just made it easier to defend against Fair Labor Standards Act exemption claims by employees.

In E.M.D. Sales v. Carrera, the Court unanimously ruled that employers only need to meet the preponderance of the evidence standard—not the heightened clear-and-convincing standard—when proving that an employee is exempt from the FLSA's overtime requirements.

An expensive lesson on pay-equity compliance

Mastercard has agreed to pay $26 million to settle allegations that it systematically underpaid thousands of female, Black, and Hispanic employees. The settlement resolves claims that the company underpaid 7,500 female, Black, and Hispanic workers compared to their male and white counterparts for performing the same or similar work.

As this case illustrates, allegations of systemic pay discrimination hit hard—financially and reputationally. As an employer, you can and should take steps to ensure fair pay practices. Not only because it's the right thing to do, but because it's critical to avoid costly lawsuits and foster a workplace of trust and respect.

This is how NOT to respond to employee complaints

JP Morgan is making waves with its decision to bring employees back to the office five days a week starting in March. But what's making even more waves is its reported crackdown on employee communication about this decision on the company intranet.

Let's talk about why that's problematic from both a legal and practical standpoint:

ADA covers more than those who are limited in their ability to work

What happens when an employer ignores the definition of "disability" under the ADA? A lawsuit—and a lesson in what not to do. A recent 6th Circuit decision highlights how important it is to get the definition right—and why denying a reasonable accommodation like a job transfer can land you in legal trouble.