What do you do for a living?

The question, "What do you do for a living," doesn't have a straight-line answer. My law firm bio offers several answers. 

There is a lot to unpack in that bio.

The 4th nominee for the “Worst Employer of 2022” is … the WTF racist

I can't do these truly awful allegations of systemic racism, racist harassment, and retaliation any more justice than the actual allegations from the lawsuit that the California Department of Fair Employment and Housing just filed against Tesla.

They are the worst allegations of workplace racism I've ever encountered. They start with claims of a segregated workplace with the Black section referred to as the "porch monkey station," the "slaveship," and the "plantation," and go downhill from there to include daily utterances of every kind of racist slur (including the n-word, "porch monkey," and "coon") 50 - 100 times per day.

WIRTW #613: the “competition” edition

On July 9, 2021, President Biden issued Executive Order 14036, Promoting Competition in the American Economy. Its goal is to reduce the trend of corporate consolidation, increase competition, and deliver concrete benefits to America's consumers, workers, and small businesses.

To that end, the Treasury Department has been investigating competition in the beer, wine, and spirits industries. Earlier this week, it published its report. 

It details how the government should be working to open up competition in these industries to help the small businesses that fuel it. 

It also makes some specific recommendations, including on the anticompetitive dangers of horizontal consolidation within the industry, and how state laws (such as beverage franchise laws) can be amended to eliminate or mitigate the anticompetitive effects of states' traditional three-tier supply chain system of passing alcoholic beverages from the producer/supplier, to the distributor/wholesaler, and ultimately to the retailer.

If you have any interest in these industries in particular, or more generally as to how the power of state and federal governments can be harnessed to help free enterprise by removing barriers to competition, I recommend reading the Treasury Department's report.

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

Peloton’s dubious severance package

Facing the consequences of some poor business decisions and an uncertain future, Peloton made the difficult decision to lay off approximately 20 percent of its workforce, totaling 2,800 employees. 

Perhaps worried about the public relations storm this news would create (and further damage to its already diminished stock price), John Foley, Peloton's now-former President and CEO, and the company's co-founder, took to the company's website to explain the decision. Part of that explanation was an outline of the severance packages being offered to those impacted by the layoff.

We are officially in the Golden Age of Union Organizing. How will your company respond?

Yesterday, the White House Task Force on Worker Organization and Empowerment released its 45-page report on the use of executive branch policies, practices, and programs to promote the Biden Administration's support for worker power, worker organizing, and collective bargaining.

The key takeaway for employers? The Task Force has recommended that the federal government use its "authority to support worker empowerment by providing information, improving transparency, and making sure existing pro-worker services are delivered in a timely and helpful manner." 

Yikes! 😱

How will the federal government accomplish this?

An employee can’t sue over a job never applied for

Staci Russell, a dean at Cornerstone Health High School, sued her employer for sex discrimination after she was passed over for the open principal position. Her problem? She never applied for the position.

Based on that fact alone, the 6th Circuit had little difficulty affirming the dismissal of her lawsuit.

Russell concedes she did not apply for the vacant principal position. … Russell never applied or interviewed for the position, nor did she indicate interest. While Cornerstone named Price principal of the combined high school on January 24, 2020, after Russell filed her EEOC charge, Russell does not provide evidence showing that Cornerstone’s decision to combine two high schools and name Price principal of the combined school occurred as a result of her filing an EEOC charge. Russell thus did not establish a prima facie case of discriminatory failure to promote.

Thank God for common sense judicial decisions. If an employee fails to apply for a job, it's really hard to claim discrimination when that job goes to someone else who actually did apply.

Jon and the Social Media Pub Crawl

A big thank you to Allessandria Polizzi for having me as a guest on her Be Verdant Podcast. We took a 40-minute tour through the state of employment law and employee relations in early 2022. She called in a "pub crawl" since we quickly hit a bunch of issues instead of spending our time together taking a deep dive into just one. It was fun to record and a fun listen.

Enjoy. 

Find it embedded below or wherever you get your podcasts.

WIRTW #612: the “when I went to college” edition

I turn 49 years old in nine days. I was recently reminded of my age when I came across this blog post from my alma mater, Binghamton University (née SUNY Binghamton): You Know You Went to SUNY Binghamton When…

Among the pearls of days gone by that Gens Y and Z could not possibly wrap their younger brains around?

🍻 I drank in an on-campus pub

✍️ I waited in line in the gym to register for classes on paper

👀 Everyone knew my social security number

What has changed since you attended college that would shock those younger than you? Share in the comments below.

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

Brian Flores burns down the house in his lawsuit against the NFL … and makes himself unemployable in the process

If you haven't read the lawsuit Brian Flores filed against the NFL and three of its franchises, you should. It reads like a law school employment law exam question. It has allegations of systemic and endemic racial discrimination, fraud, bribery, and Bill Belichek inadvertently providing the smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL's hiring practices. It will also likely mark the end of Flores' coaching career. I'd be shocked if he ever coaches again.

The 3rd nominee for the “Worst Employer of 2022” is … the cancerous employment canceler

"Focus on your health," is a nice sentiment for an employer to share with an employee who is awaiting the results of cancer testing. Coupled with a termination letter on the eve of the employee returning to work from said testing? That will earn you a nomination for 2022's Worst Employer.

The EEOC has the details in this news release.

Coronavirus Update 2-1-22: I just gave my kids the worst business trip souvenir ever

In the before times, when I actually traveled for business, I'd always try to come home with a souvenir for the kids. A t-shirt, a stuffed animal, something small, but at least something so they knew I was thinking about them when I was gone.

Two weeks ago, I got to travel for work again — this time to Cincinnati for the annual Ohio Craft Brewers Conference. Never fear, I did not forget to bring home a souvenir for the kids. While certainly memorable, it's one that they would certainly rather forget.

I brought them Covid-19. 😥🦠🤒

Thankfully, our Covid experience was mild and we all survived with varying degrees of minor symptoms along with five days of isolation. 

On this week's episode of The Norah and Dad Show, Norah and I talk about our experience with Omicron. We discuss how we handled having the virus, life during isolation, what we missed from the past 22 months of trying to act responsibly, and what we’re looking forward to doing now that we have our super-immunity. We also discuss the dangers of late-night milkshake deliveries and, notwithstanding, how ice cream makes everything better.

You can listen on Apple Podcasts, Spotify (yes, we're still there, even though Joe Rogan spews dangerous garbage), Google Podcasts, the old-fashioned web browser, and wherever you get your podcasts.

Coronavirus Update 1-31-22: Employees should not be choosing between their jobs and working while ill

I return to the office today after a one-week Covid-inducted work-from-home hiatus. I'm fortunate that as a professional I have the ability and flexibility to work from home when needed. Many too many employees, however, do not have that luxury.

Consider, for example, this report from Business Insider, that 63 percent of Red Lobster employees came to work while sick with Covid-19, either because they lacked paid sick leave or because they couldn't find anyone to cover their shifts. 

WIRTW #611: the “masthead” edition

Early on in the pandemic, I rebranded and renamed the Ohio Employer Law Blog to the Coronavirus Law Blog. The change was part marketing savvy and part recognition of the reality that for the then-foreseeable future the Covid-19 pandemic would be all that mattered to employers. 

Nearly two years later? The name and masthead remain the same.

Yet, even with Omicron keeping cases at near-record numbers, hospitals still full, and Covid still claiming thousands of American lives per day, it's at least starting to feel as if we are rounding the corner into the home stretch of the pandemic.

So don't worry. I'll let you know when the pandemic is over. It'll be when I change the masthead back to this:

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

Coronavirus Update 1-27-22: Whole Foods 1 – Maskhole 0 😷

You have every right to believe that masks are a form of government control or a satanic tool. You're very wrong, but you are free to believe what you want to believe. 

What you aren't free to do, however, is to act on those beliefs when they run counter to the rules of the employer for which you work or the business you want to enter. 

Case in point: Manning v. Whole Foods Market Group.

Coronavirus Update 1-26-22: OSHA doesn’t need an ETS to go after your business’s Covid-safety deficiencies

With the Supreme Court effectively killing OSHA Covid-19 vax-or-test Emergency Temporary Standard, and OSHA now officially withdrawing it, employers might think that they are beyond the reach of OSHA for Covid safety-related issues. If you are one of those employers that thinks this way, you are very mistaken.

Consider Sanoh American, a Findley, Ohio, auto parts supplier. OSHA recently cited and fined it $26,527 for ignoring guidelines to limit Covid-19 exposure in its facility. While the company had social distancing and mask policies in place, it failed to follow or enforce them. As a result, 88 of the company's 270 Findley employees (nearly one-third of the local workforce) tested positive for Covid-19. Five of those positive employees were hospitalized and two unfortunately died. OSHA determined that one of those deaths was work-related.

The 2nd nominee for the “Worst Employer of 2022” is … the claim-filing clinic

Suppose you have a group of unhappy employees. They don't like their working conditions. They don't like their pay. They generally want to work somewhere else. When they give you their notice, do you:

(a) Let them walk. 
(b) Engage them to see what will entice them to say.
(c) Sue them for an injunction to stop them from leaving.

If you chose (c) you are ThedaCare, a Wisconsin healthcare system. You are also the 2nd nominee for the Worst Employer of 2022.

Coronavirus Update 1-24-22: I’m a Covid statistic

It was a calculated risk. I've been so careful for the past 22 months. We don't socialize outside of a very small bubble. We don't eat in restaurants or go to bars unless we can be outside. We've given up concerts and traveling. I wear my KN95 mask everywhere. 

But before Omicron changed the Covid-19 narrative, I decided that my firm would sponsor the Ohio Craft Brewers Conference. I also agreed to speak at the event. And we timed the launch of our brand new Craft Beer Practice Area around the conference. 

It was a safe event. Vaccines or negative tests were required of all attendees. Masks were mandatory at the event unless eating or drinking. I wore my KN95 mask everywhere. I was still nervous about spending three days out of town. But at my request, my firm had made a substantial financial investment in the event. So I packed my KN95 masks and my hand sanitizer, and off I went.

Twenty-four hours after returning home I felt my first symptoms — a scratchy throat and a mild dry cough. That's it. But having been out and about, I decided to home test. Negative.

WIRTW #610: the “humor is the best medicine” edition

On behalf of myself and my daughter, I'd like to thank everyone for all of the kind words of encouragement and support I received for our most recent podcast episode. Whenever you go through any sort of trauma, you feel like you're in it alone. What I learned through the many of you who took the time out of your busy lives to email, comment, or message is that we are not alone and that so many have gone through similar experiences. That community of shared experiences offers a tremendous amount of comfort.

If you've yet to listen, please do so (Apple, Spotify, or wherever you get your podcasts). If you have listened, please share. And if you've shared, please re-share somewhere else. Norah wants to make something positive out of her experience to help people by talking about and de-stigmatizing mental health issues. It's a conversation that is long overdue and very needed. 

I do want to take a moment to address one critique we've received from one very small corner of the internet, which has been bothering me and that I don't want to leave unanswered — that because we chose to attack this issue with some humor, we are devaluing the seriousness of the situation and are not taking mental health issues seriously. Nothing could be further from the truth. No one (and I mean no one) has the right to tell someone else how to process trauma. Some do so with anger or sadness. Some with quiet reflection. And some with serious discussion. Consistent with our personalities, we process with humor and sarcasm. It doesn't mean we're not taking the situation seriously or making light of it. Quite the opposite. It just means we're coping the best we can. I can assure you that no one takes what Norah went through and is going through more seriously than she and our family.

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

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.