The 5th nominee for the “worst employer of 2019” is … the fishy fishery

Atlantic Capes Fisheries agreed to pay $675,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.

The allegations that lead to the settlement, and this nomination as the worst employer of 2019?

WIRTW #540 (the “wheels off” edition)

The one question people ask me more than any other about this blog? "How do you write every day?"

My answer, "Because I love it."

The practice of law, for all of its challenges and rewards, can be mundane. This blog lets me be creative. I love the creativity of sharing information in a manner that makes it accessible and entertaining. If I didn't love this creative process, this blog would have died long ago, instead of just having passed 3,000(!) posts since it's inception nearly 12 years ago.

It is because of my love of this creative process that I implore you to check out Rhett Miller's new podcast, Wheels Off. It's conversations with creative people about their creative processes. Each of the first three episodes are outstanding listens, but my favorite thus far, the most interesting and engaging discussion, is Rhett's talk with Rosanne Cash. (Labor law bonus points for Cash, who discusses the musical she's writing based on the story of famous union organizer Norma Rae.)


The earnestness and passion of each as they share why they create as their careers is genuine and moving.

If you create anything in your lives, either as a vocation or avocation, or have any interest at all in those who do, I implore you to subscribe to Wheels Off in your podcast app of choice, and add each episode to your weekly listen.

Here's what I read this week:

Bad employment policies lead to new legislation

All the way back in October 2014, I wrote about an Illinois Jimmy John's franchisee that had required all of its employees to sign a Non-Compete Agreement as a condition of employment. 

I was not kind to this employer:

It's one thing to bind your managers and other high-level employees to a noncompetition agreement. It's another to require the same of your low-level sandwich makers and cash-register operators. The lower down the food chain you move, the harder it becomes to enforce these agreements.… [W]e're talking about sandwiches. What's the legitimate business interest this employer is trying to protect?

Yet, in the nearly half-decade since, employers have not heeded my advice. And, when employers fail, legislatures sometimes step in to fix.

Employment policies in the polar vortex

How frigid are the temperatures going to be in Northeast Ohio today? Just about everything is closed. Even the post office suspended mail delivery. Just because you remain open for business does not mean that your employees will be in a position to get to work. Pipes burst. Furnaces break. Cars die. And with schools closed, many parents need to remain home with their children.

In light of these historically low temperatures, here are five key considerations for workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

Employees on medical leave aren't bulletproof, but still handle with care

One of the questions that clients ask me most often is, "________ is out on a medical / pregnancy leave (or just returned); can we fire him/her?"

My response, always: "Why?"

NLRB flip-flops on key independent contractor test

The distinction between employees and independent contractors is one that still confounds employers. It is a vitally important distinction, because key employment laws, such as anti-discrimination laws, wage and hour laws, and labor laws do not apply to independent contractors.

WIRTW #539 (the “cover story” edition)

Big week in our house, as our 12-year-old daughter just had her first official press. Cleveland's Scene Magazine interviewed her for this week's cover story, on Cleveland-area cover bands.

 Needless to say, she was pretty jazzed about the whole experience.

And, she impressed the hell out of me:

Each new generation is also embracing classic rock—and some are even taking an open-minded perspective on the sonic opportunities afforded by cover bands. "People like seeing them because it's music that they can relate to that they've heard before," says Norah Hyman, the 12-year-old vocalist for Fake ID…. And, perhaps unsurprisingly given Hyman's generous perspective, Fake ID are putting their own spin on things.

"We tend to change in the songs to make it more difficult for us," Hyman says. "A lot of the vocal stuff, [my bandmates] let me decide what I want to do with it." Such freedom has helped improve her vocal technique, namely by showing her she doesn't have to add "grit" to her singing voice. "Now I'm able to put my own touch on the songs instead of copying them."

You can read the entire story here.


Here's what else I read this week:

What's is the dumbest workplace policy you've ever encountered?

I spent my day yesterday mediating a case before the Ohio Civil Rights Commission. The mediation took place in a conference room on the 8th floor of the state office building in downtown Cleveland. The hardest part of my day? Believe it or not, it was simply getting to the mediation.

Union membership is on the rise in Ohio; is your business ready?

Union membership numbers for 2018 are out, and while most employers should be encouraged, Ohio employers might think otherwise.

In Ohio, the percentage of workers belonging to unions is at 12.6 percent, up 0.1 percent from 2017. Nationally, union membership sits at 10.5 percent, down ever so slightly from 2017. In other words, Ohio’s union representation is both greater than, and growing faster than, the national average.

The 4th nominee for the “worst employer of 2019” is … the flagrant farmer

I'll let the EEOC do the heavy lifting on today's nominee for the Worst Employer of 2019 (the 4th thus far):

A federal jury rendered a verdict … awarding $850,000 in compensatory and punitive damages to a female farmworker at Favorite Farms in Dover, Fla., who was raped by her supervisor and reported it to police and management that same day.…

Ohio amends its employment laws to limit joint employment for franchisors

As the debate over the meaning of "joint employer" continues to rage at both the NLRB and in the federal courts, Ohio has jumped into the debate by passing legislation to limit this definition under various Ohio employment laws.

Effective yesterday, franchisors will not be deemed joint employers with their franchisees unless:

• the franchisor agrees to assume that role in writing or a court of competent; or
• a court of competent jurisdiction determines that the franchisor exercises a type or degree of control over the franchisee or the franchisee's employees that is not customarily exercised by a franchisor for the purpose of protecting the franchisor's trademark, brand.

WIRTW #538 (the “drones” edition)

OSHA is now using camera-carrying drones to investigate outdoor workplaces.

The good news? Use is intended to be limited to areas that are otherwise difficult and dangerous for OSHA inspectors to access. Plus, OSHA will not use them without an employer's consent.

The bad news? Employers that withhold consent could face OSHA's ire and a search warrant. Plus, the program lacks any protections for things like scope of recording, employee privacy, or third-party access to the video.

You can more about it at the Ohio OSHA Law Blog, here.


Here's what else I read this week:

An expensive lesson on religious accommodations

A federal court jury in Miami has awarded a hotel dishwasher $21.5 million after concluding that her employer failed to honor her religious beliefs by repeatedly scheduling her on Sundays, and then firing her.

Gillette's toxic masculinity ad isn't the problem; toxic masculinity is the problem

Gillette is facing a lot of praise, and a lot of backlash, over its recent ad slamming toxic masculinity culture.

NLRB reverses course and restores some sense to its concerted activity rules

The NLRB is the federal agency that saw the widest expansion of employee rights during the Obama presidency. And the doctrine that expanded the most was the Board's definition of protected concerted activity.

In Whole Foods Market, the NLRB had previously held that "activity by one individual is deemed concerted if undertaken in an effort to enforce the provisions of a collective-bargaining agreement or in order to initiate or induce group action." In other words, a lone wolf could act in concert with other employees based solely on his or her intent to do so. This rule lead to some absurd results.

Last week, in Alstate Maintenance LLC [pdf], the Board restored some much needed sanity to the definition of "concerted" for the purpose of protected concerted activity.

What's good for the goose? "Reverse" LGBTQ discrimination

If, like me, you believe that Title VII's definition of "sex" includes sexual orientation and gender identity, then what do you do with the claim of a heterosexual employee who claims discrimination because of her anti-LGBTQ views?

WIRTW #537 (the “Roma” edition)

We are contemplating spending Spring Break in Rome. For those who've been, what's you best tip for first-time visitors? Sights not to be missed? Things that are off the beaten path? Where to stay? Best pizza? Best gelato?

Drop a note in the comments below and let me know your Rome tips.

Here's what I read this week:

The 3rd nominee for the “worst employer of 2019” is … the barbarous boss

2019 is officially the year that my Worst Employer contest went international.

How do you motivate your employees to hit their sales goals? If you're the Runfa Hair Salon in Wuxi, China, you abuse the hell out of 'em.

What does it mean for jobs to be "substantially equal" under the Equal Pay Act?

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Substantial equality is measured by job content, not job titles.

The Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer's intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including seniority, merit, quantity or quality of production, or any other factor other than sex.

A recently filed case out of Boston delves into these issues.

Beware pre- and postliminary activities

In Integrity Staffing Solutions v. Busk, the Supreme Court held that the FLSA only requires employers to compensate employees for time spent performing "preliminary" (pre-shift) and "postliminary" (post-shift) activities that are "integral and indispensable" to an employee’s principal activities. What are "integral and indispensable?" Those activities that are (1) "necessary to the principal work performed" and (2) "done for the benefit of the employer."