When the rumor mill creates a sexually hostile work environment

Just in time for Valentine's Day, I bring you the story of a employee rumored to be sleeping with her boss to get a promotion. She wasn't, but the workplace rumor mill sure thought she was.

The way we work might be changing, but independent contractors risks are staying exactly the same

The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship. 

So starts the 6th Circuit's opinion in Acosta v. Off Duty Police Servs., which applies the traditional "economic realities" test to determine whether private security and traffic control officers are employees or independent contractors.

One would think that with such a pronouncement at the head of the 6th Circuit's opinion, the court would be making a startling pronouncement broadening the landscape of who qualifies as an independent contractor. Those making that assumption, however, are sorely mistaken.

A textbook lesson the ADA's interactive process

Does an employer have an obligation to return an employee to work following an extended unpaid leave of absence granted as a reasonable accommodation under the ADA?

You might be inclined to say, "Of course." The answer, however, is nuanced, and depends on the length of the leave, the composition of your workforce at the time the employee seeks to return to work, and your efforts to engage in the ADA's interactive process with the employee during the leave.

For your consideration: Brunckhorst v. City of Oak Park Heights.

Emojis are starting to pop up in discrmination and harassment cases 🤔🤷‍♂️

Law.com recently pronounced, "The Emojis are Coming!" That article got me thinking, are they coming to workplace litigation, too? After all, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases.

According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017. Let's not get crazy. The doubling went from six cases to 12 cases. But, a trend is a trend.

WIRTW #541 (the “Purl” edition)

Purl is an online-only Pixar short about a ball of yarn appropriately named Purl who gets a job in a bro-tastic workplace. As the only female, and only ball of yarn, working at B.R.O. Capital, she struggles to fit and yearns for acceptance from her all male, all human, co-workers. Purl's story has a lot to say about diversity and inclusion, and is well worth the just under nine minutes of your time.


Here's what I read this week:

FINRA's new "Best Practices" for Cybersecurity is MUST reading for any employer

The Financial Industry Regulatory Authority (FINRA) recently issued its Report on Selected Cybersecurity Practices – 2018 [pdf].

The Report identifies five common cybersecurity risks and outlines recommended practices for each:

• Branch controls
• Phishing attacks
• Insider threats
• Penetration testing
• Mobile devices 

While FINRA only regulates securities firms, the five topics its Report covers should be required reading for any employer that wants to understand how to implement cybersecurity best practices.

President Trump calls for federal paid family leave during State of the Union

Yesterday was the 26th anniversary of the Family and Medical Leave Act being signed into law. During last night's State of the Union Address, President Trump called for Congress to make paid family leave a federal law.

I am also proud to be the first president to include in my budget a plan for nationwide paid family leave — so that every new parent has the chance to bond with their newborn child.

How to recover a stolen computer from an ex-employee in seven easy steps

As many as 60% of employees who are laid-off, fired, or quit admit to stealing company data. Sometimes, they download information on their way out the door. Sometimes they email information to a personal email account. And sometimes they simply fail to return a company laptop or other device that contains the data. In the latter case, it costs an average of $50,000 for an employer to replace a stolen computer, with 80% of that cost coming from the recovery of sensitive, confidential, and proprietary information.

When you put this data together, it becomes increasingly apparent that businesses must take proactive steps to protect their technology and data.

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: