If you treat employees like they are fungible, they will act like they are fungible

I spent the past few days at the Ohio Craft Brewers Conference promoting my new venture, OhioBeerLawyers.com. In addition to being one of the event's sponsors, trying to network in as Covid-safe of a way as possible, and learning about the business of craft beer, I also was a presenter. My chosen topic was how to hire and retain employees in the midst of the Great Resignation. 

I thought of my presentation as I read about the situation at Noah's NY Bagels in Vacaville, California. The restaurant's entire staff of 15 quit their jobs en masse in protest of their manager's (unjust, in their view) termination. The story took off after a TikTok, posted by one of the employees and captioned, "Say no to toxic management," went viral.

Accountability always starts at the top

How do you respond to an employee who states that the Covid-19 vaccine is a plot by "the Jews" to exterminate people? Does your answer change if the employee in question is the company's founder? 

The correct answers: You fire him, and no, it doesn't matter who he is.

The scenario recently played out at Entrata, a Utah technology company. David Bateman, Entrata's founder, sent an email to multiple parties, including various Utah tech leaders. Bateman's email started with the subject line, "Genocide." It went downhill from there. 

A very special episode of The Norah and Dad Show, talking about teen mental health

I recently asked you, my readers, followers, and friends, for a favor. I asked you to take a moment to hug your kids a little stronger and a little longer. What I didn't tell you was why I was asking that of you.

Today I'm sharing the rest of the story. Except it's not my story to tell. It's my daughter's.

Stepping out of my confort zone

Sometimes you need to step out of your comfort zone to move forward, including in one's career. 

For the past 25 years, I've been a management-side labor and employment lawyer. I've represented employers in just about every type of employee dispute you can imagine and counseled too many to count on a countless number of issues.

Still, I yearn for growth. One of the industries I've had the pleasure of representing over the years is the craft beer industry. Thus, I've helped spearhead the launch of Wickens Herzer Panza's brand new Craft Beer Practice Group. I'm excited to be one of the two leaders of this group, along with one of my partners, Grant Steyer. You'll find our new practice at ohiobeerlawyers.com.

I'm still a practicing labor and employment lawyer (don't worry). I'm just adding "craft beer lawyer" to my arsenal.

BREAKING NEWS: SCOTUS dumps OSHA vax-or-test emergency temporary standard

The Supreme Court has issued its opinion in the appeal of the 6th Circuit's decision that vacated the 5th Circuit's stay of OSHA's vaccine-or-test emergency temporary standard for employers with 100 or more employees.

In a 6-3 decision, strictly down ideological lines, the Court reinstituted the stay, blocking the ETS from taking effect. 

Coronavirus Update 1-13-22: The CDC is not updating its mask guidelines to better protect against Omicron … but it should

The CDC is not considering updating its current mask guidelines to recommend that everyone wear highly protective N95 or KN95 masks, contrary to earlier reports by the Washington Post.

In a White House briefing yesterday, Rochelle Walensky, the head of the CDC, said that any mask is better than no mask, and that the CDC would not be changing any guidance regarding the type of maks that people should be wearing. Walensky did concede that the CDC's website needs to be refreshed to include information on the "different levels of protection different masks provide."

Pumping up workplace lactation rights

The U.S. Department of Labor has reached a settlement with Labcorp over allegations that it failed to provide lactating employees a space for them to express milk privately without fear of intrusion.

The investigation stemmed from an allegation of one employee in the company's Lynwood, California, location. DOL investigators determined that when the employee asked for a private place to express her breast milk, supervisors offered a common space that resulted in her being interrupted twice. As result, and per its settlement with the DOL, Labcorp has agreed, for all of its 2,000-plus locations nationwide, to "provide a private space as required with a notification on the door to guarantee an intrusion-free space."

The 2nd nominee for the “Worst Employer of 2022” is … the enslaving employer

An allegation of slavery has played into each of the last three Worst Employer winners. Thus, even at this early point in this year's list, I have a strong suspicion that today's nominee will finish strong at year's end.

Workers Held at Gunpoint in Modern-Day

Slavery Operation in Georgia, Feds Allege

The “Penny Pincher” gets sued for retaliation — an update on a 2021 Worst Employer finalist

A OK Walker Autoworks and its owner, Miles Walker, a 2021 Worst Employer finalist, finished dead last in last year's voting, garnering only 7% of the total weighted vote. They may win the prize after all, however. The Department of Labor just filed a lawsuit against the auto repair shop and its owner for retaliation under the Fair Labor Standards Act.

WIRTW #609: the “hugs” edition

Everyone do me a favor and hug your kids a little stronger and a little longer tonight. They all need it.

— Jon Hyman 💉😷 (@jonhyman) January 5, 2022

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

Coronavirus Update 1-6-22: Starbucks become first employer of note to adopt OSHA vaccine-or-test emergency temporary standard

I don't know what you'll be doing tomorrow morning at 10 am. But I do know what most employment lawyers will be doing — their best to follow the Supreme Court oral arguments in the appeal related to the OSHA vaccine-or-test emergency temporary standard for employers with 100 or more employees (as well as the appeal related to the Center for Medicare & Medicaid Services healthcare worker vaccination mandate). 

Starbucks, however, is not waiting for SCOTUS to rule on the legality of the OSHA ETS. It has informed its 220,000 nationwide employees that they must disclose their vaccination status by January 10, and either be fully vaccinated against COVID-19 or be tested weekly by February 9.

Coronavirus Update 1-5-22: What the hell is the CDC doing?

Confused by the CDC's changed guidance on when employees can break isolation? I'm here to help.

The 1st nominee for the “Worst Employer of 2022” is … the crashing chief

Another year, another batch of awful employers for your consideration and your year-end voting. Might as well start off big.

Ogden boss allegedly tries to punch worker, rams his truck

The Standard-Examiner has the details.

Coronavirus Update 1-3-22: Happy 2020 … too 😞

As we start 2022 (HNY!) let's jump in the time machine and look ahead a couple of weeks to what I think is in our immediate pandemic future.

To catch a glimpse of what's coming here in the next 7-14 days, we need only look across the pond to Europe, which has been a great predictor thus far of what our Covid future looks like. For the whole of the pandemic, our Covid experience has trailed that of Europe by 2-3 weeks. Because of the quickened transmission and infection timeline of Omicron, we can likely shorten that to 7-10 days. 

’Twas the Employment Law Night Before Christmas (2021 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas, tweaked for 2021.

As has been the case in years past, you can read my tale below. This year, however, you also get the holiday present of me reading it for everyone.

To all of my readers, new and legacy, thank you all for reading, commenting, and sharing throughout the year, and please have a happy and, most importantly these days, safe holiday season. I'll see everyone on January 3, 2022, with fresh content to kick off the new year.

---

'Twas the night before Christmas, when all through the office
Not a creature was stirring … well, just one of the bosses;
The bonuses were paid by the company with care,
In hopes that no ungrateful employees would swear.

The workers were home all snug on their thrones;
While visions of deadlines danced on their iPhones;
And I at my desk, alone to deal with the crap,
For the one who's in charge gets no holiday nap.

When out in the lot there arose such a clatter,
I sprang from my desk to see what was the matter;
Away to the door I flew in a hurried jolt,
Tore open the shutters and threw open the bolt.

The moon on the breast of the new-fallen snow,
Gave a lustre of midday to objects below,
When what to my wondering eyes did acquaint,
A process server holding a seven-count complaint.

Count One alleged that we had discriminated,
On the basis of race by one irritated;
A denied promotion, gone to someone who's white,
Said the lawsuit I read in the glow of the night.

Count Two, racial harassment, words she had o'erheard,
Does she know the ruckus she's about to have stirred?
Oh, how she had pulled that nasty, evil trigger.
I'd never heard supervisors rhyme something with bigger.

Count Three, it's not just racism she alleged,
Also sexism, to which management pledged.
The boys, she said, we paid so much more than the girls
Yet they do the same work as each workday unfurls.

Count Four, uh oh, sexual harassment;
It's true her manager hoped to be her gent.
But the touching and groping, alleged quid pro quo,
Never did anyone coerce being her beau.

Count Five targeted our vaccine direction.
We denied her ask for a moral exemption.
"Conspiracy," she yelled. "You're part of the elite."
You'll care when Omicron our employees deplete.

Count Six, firing a COVID rule breaker.
Masks she refused, even those made of paper.
Social distancing of six feet or more,
Enforcement can be such an insufferable chore.

Count Seven, wage and hour class action, oh crap!
Did we fall into an FLSA lawsuit trap?
Mis-classifications, non-exempt for exempt,
And off-the-clock work too, my butt cheeks were then clenched.

Not just a lawsuit was waiting, I see.

An election petition from the NLRB.

Ungrateful employees want more pay and respect.

Should I have treated them better, I reflect?

I spoke not a single word, went back to my desk,
And yelled, with none to hear, "Do I ever get to rest?!"
I emailed our lawyer, thru my phone I exclaimed,
"How much trouble are we in? To me please explain!"

He sprang to his phone, gave to me this rejoinder.
"A lot; I'll need a $20,000 retainer."
But I also heard him proclaim, so as not to slight—
"Happy Christmas to all, and to all a good night!"

Announcing The Worst Employer of 2021 🏆

The ballots have been cast. The votes have been tabulated. The results have been certified. It's now my honor to announce the Worst Employer of 2021.

Coronavirus Update 12-21-2021: Employers are starting to get real about vaccinated workforces

Last week marked the one-year anniversary of the Covid-19 vaccine being administered in the United States. Yet, here are some headlines from last week:

• U.S. employers lean toward required COVID-19 vaccinations
• Google is threatening to fire unvaccinated employees
• Kroger to end some Covid-19 benefits for unvaccinated workers
• From mandates to masks, how some big companies are adjusting to Omicron

While we wait for the Biden administration's vaccine mandates to work their way through the courts (this past weekend's 6th Circuit pronouncement notwithstanding), employers are taking matters into their own hands. Fueled by the exponential surge in Delta-related Covid cases, and the real and palpable threat of a more contagious Omicron variant looming and starting to wreak havoc, many employers have simply run out of patience with unvaccinated employees.

Coronavirus Update 12-20-21: OSHA’s “vax or test" mandate is back on … for now

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

That's what OSHA posted on the heels of the 6th Circuit's decision dissolving the 5th Circuit's stay of the agency's "vax or test" emergency temporary standard. 

BREAKING NEWS: 6th Circuit dissolves stay and re-starts OSHA’s vax-or-test emergency standard

In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here. 

In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority. 

WIRTW #608: the “back and forth” edition

Before we get to the links of others that you might have missed this past week, I thought it best to look back on my own links that you also might have missed in the hustle and bustle of your workweek.

1/ Voting is open for the Worst Employer of 2021, and will remain open until 11:45 pm on Monday. If you don't vote, you forfeit your right to complain about the results. Vote here.

2/ I guested on this week's episode of Marc Alifanz's and Kate Bischoff's Hostile Work Environment podcast (my favorite employment law podcast, with two of my favorite people), running down the eight Worst Employer finalists. Listen on Apple Podcasts, Spotify, or wherever you get your podcasts.

3/ Episode 4 of The Norah and Dad Show is live on Apple Podcasts, Spotify, or wherever you get your podcasts. Please consider subscribing to our show in your app of choice so that you never miss an episode, and, as Norah says every week, we'd love your 5-star reviews on Apple Podcasts and 5-star ratings on Spotify (which just launched its podcast ratings).

Here's the plan for the remainder of the year. After regular posts on Monday and Tuesday, on Wednesday I'll announce the winner of the Worst of Employer of 2021. Finally, on Thursday I'll wrap up the year with my annual reading of 'Twas the Employment Law Night Before Christmas, which will have a companion video if I get my stuff together over the next few days.

Have a great, safe, and healthy weekend. Here's this year's final list of the best things I read online over the past week that I think you should be reading, too.