The biggest workplace story of 2022

Last Friday, workers won the first-ever union election at an Amazon warehouse (a fulfillment center in Staten Island, New York). This is the biggest workplace story of the year, and it won't even be close. 

Here's why.

WIRTW #619: the “update” edition

To wrap things up this week, I thought I'd update two stories.

1/ UCLA Unpaid Job Posting

In addition to taking down the offensive job posting, UCLA tweeted this update.

Had UCLA included some of this reasonable explanation as part of its job posting, it could have avoided being excoriated online.

2/ Brienne Allan

Brienne, now of Brave Noise Beer, recently appeared on the Good Beer Hunting podcast to discuss what her year has been like since her Instagram post asking for stories about sexual harassment and gender discrimination in craft breweries went viral. It's a great listen. My takeaway (which will be fodder for a future post): Is your business an ally, or are you just afraid of being canceled?

I'm taking a much-needed vacation next week. I'll be back on April 4 with fresh content for y'all. Try not to miss me too much.

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

Starbucks employees are trying to “kick down the door” across the entire food and beverage service industry

Less than one and one-half miles away from the flagship Starbucks that launched a global coffee empire five decades ago, employees unanimously voted for their shop to unionize. It became the seventh such store to vote to unionize, joining five stores in Buffalo, New York, and one in Mesa, Arizona. Of the 157 (and rising) Starbucks currently organizing or planning to organize, only one thus far (also in Buffalo) has sided with management.

Pay careful attention to what the employees of the Seattle store that just went union told The Seattle Times in speaking about what this vote means for employees in the food and beverage service industry generally.

The nuts and bolts of your company code of conduct

Yesterday I explained why your company needs a code of conduct separate from or adjunct to your already-existing anti-harassment policy. 

Today, I'm back to explain what it should contain, to whom it should apply, how violations are addressed, and how it should be disseminated.

Does your craft brewery or other company have a code of conduct?

Meet Brienne Allan, a brewer at Notch Brewing in Salem, Mass. In May 2021 she asked a simple question in an Instagram Story— "What sexist comments have you experienced?"

What followed were hundreds upon hundreds of stories of sex-based discrimination, harassment, and other abuse.

I’m going to say this loudly for the people in the back: IT’S ILLEGAL FOR EMPLOYEES TO WORK FOR FREE

I woke up Saturday morning to a tweet asking me for my take on this job posting.

I'm going to say this one time, really loudly, for the people in the back.

FREE WORK IS ILLEGAL

(in almost all cases)

WIRTW #618: the “o sole mio” edition

Over the years I've shared a lot of videos of my daughter performing. At the Rock & Roll Hall of Fame. At Ohio Bike Week. At the Best of Cleveland Party. On stage with Roger Waters. On stage with Rhett Miller. A lot of videos. (I'm a proud dad. What can I say?)

Here's another, albeit of a very different kind of vocal performance.

View this post on Instagram

A post shared by Jon Hyman (@jonhyman)

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

Just because “caregiver” isn’t a protected class doesn’t mean it isn’t sometimes illegal to discriminate against them

No matter how many times you read our federal workplace anti-discrimination laws, you won't find the word "caregiver" among the litany of protected classes. Yet, it has been clear since the earliest days of this blog that in the proper circumstances "caregiver discrimination" is illegal.

Earlier this week the EEOC updated its Covid-19 guidance to discuss these caregiver-related issues.

Caregiver discrimination violates the laws enforced by the EEOC if it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 or older), or another characteristic covered by federal employment discrimination laws. Caregiver discrimination also is unlawful if it is based on the caregiver’s association with an individual with a disability, or on the race, ethnicity, or other protected characteristic of the individual receiving care.

In a stunning move, billion-dollar Starbucks investors urge the coffee retailer to go “union neutral”

Trillium Asset Management, which holds $48 million of Starbucks stock, is leading the charge on behalf of a billion-dollar-plus group of investors to push the coffee retailer to adopt a "union neutral" stance.

To date, more than 130 Starbucks stores in 26 states have petitioned the NLRB to unionize. Of the seven stores that have held elections so far, six have voted to unionize. 

According to the letter sent to both Mellody Hobson, Independent Chair of the Starbucks Board of Directors, and Kevin Johnson, its CEO (and obtained by CNBC), there exists grave investor concern that reports of Starbucks' "aggressive union-busting tactics" will harm the brand and its reputation (and, by extension, sales, profits, and, ultimately, share value).

Does your employment lawyer speak emoji and meme?

After a workplace discussion between employees about employees had been discussing concerns about a superior's management style, an employee goes to management to complain about having an unmanageable workload. That night, that same employee posts the following on his personal Facebook page. 

Just in case someone needed to know 🤷 

Employees don’t leave Companies, they leave Managers

At least 90 peple liked the post, including two co-workers who commented in support. The next day the employee was fired for alleged job performance mistakes. 

The fired employee files a charge with the National Labor Relations Board, claiming that he was fired in retaliation for engaging in protected concerted activity — his Facebook post. 

The NLRB concluded that the employee case presented a credible claim to litigate.

We conclude the Charging Party engaged in protected concerted activity because the Facebook post elicited support from coworkers over scheduling, management, and employee attrition, issues that had been topics of concern for employees. 

The post, as written, objectively sought to elicit support from coworkers and other employees—who were Facebook friends and would therefore see the post—regarding the perceived poor management practices that would lead to employee attrition.… [A]t least two of these employees' responses indicated their support for the Charging Party's message that bad management practices lead to a loss of employee morale and employee attrition.… Moreover, the Charging Party's post and the comments it elicited were a continuation of the Charging Party's earlier conversations with numerous other employees about the quality of the Employer's supervision.…

Non-text communications, such as emojis and memes, can be just as communicative as text and prose, and when they communicate a message the law treats them no differently. If your employment lawyer isn't conversive in emojis, memes, TikToks, and other newer forms of communication, it's time for a new lawyer. Your employees are speaking like this. You need to understand it, and so does your lawyer.

The 5th nominee for the “Worst Employer of 2022” is … the sh**ty superior

I thought I had seen all variety and manner of worst employer. Then Suzanne Lucas sent me this story.

Boss who gave employees energy drink 

mixed with colon cleanser gets sentenced

WIRTW #617: the “drive-thru” edition

Earlier this week I had the pleasure of guesting on DriveThruHR, one of the oldest and (in my opinion) best HR radio shows/podcasts. We discussed the end of my pandemic practice, the start of my craft beer practice, how alcohol is in my blood (and not in the way you might think), the sudden and successful rise of the labor movement, and some worst employers. Thanks to Mike VanDervort for the invite, and Mike and Robin Schooling for the discussion. 

You can listen here, or wherever you get your podcasts.

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

Local bag company learns an expensive lesson on wage and hour compliance

A federal judge has ordered American Made Bags to pay $189,756 to a group of 48 employees, half as unpaid wages and half as liquidated damages.

The allegations that came to light in two separate Department of Labor investigations that date back to 2014 include the misclassification of employees as independent contractors, the payment of the employees' regular rate instead of the statutorily required time and half rate for overtime hours, and the failure to keep records of amounts paid to employees. 

The wage and hour risks of rounding

"Iraene" asks the following question on the Antiwork subreddit.

I was told to round down or round up my time. So if I start work at 7:55 I need to put 8. If I work 37 minutes, I should round down to 30, instead of 45 because this is a common business practice. Is this normal? I have entered exact times on the card and into ADP so idk why it's a problem now.

While this practice as explained appears to be legal, it doesn't necessarily mean it's a good idea for the employer, at least according to this employment lawyer. 

Let me explain.

The time has come to limit the overuse and overbreadth of noncompetition agreements

It's been nearly five years since I asked this question: "Is your non-compete agreement killing a fly with a sledgehammer?" Now it seems that the federal government is asking the same question.

Yesterday, the Treasury Department published its report, "The State of Labor Market Competition" (as reported by The New York Times). The report sought to answer to investigate the effects of a lack of labor market competition on our country's labor market and answer whether that lack of competition hurts labor markets.

One of the key issues the report addresses is the impact of the overuse of noncompetitive agreements and other post-employment restrictive covenants. The report calls for laws or regulations to limit the use and impact of these agreements.

THIS is why craft breweries need to pay very close attention to labor unions

It was a simple question posed in the Craft Beef Professionals Facebook group: "Conversations on fair compensation are extremely important in our industry. What is a brewery that impresses you with the way they treat their team?" 

Out of the dozens of responses, this one should scare the hell out of any craft brewery owner: 

The IWW is looking into this and the other plethora of issues we face as workers in this industry. Reach out to brewing@iww.org if you're interested in creating a better work environment near you.

When I scream at the top of my lungs to craft breweries that they need to pay attention to union organizing, this is why.

WIRTW #616: the “cocktail” edition

Have you heard about Pravda Brewery, in Lviv, Ukraine. It has stopped producing craft beer and instead is making Molotov cocktails for the Ukrainian Territorial Defense Forces.

Yuri Zastavny, the brewery's owner, told Fox News that he and his workers decided to use their knowledge of chemistry, skills, supplies, and labor to contribute to the fight.

"Once we understand what can come through beer — because it’s no time for beer, we need to get other things sorted out — we decided to make Molotov cocktails because we can use bottles, we can use the people, and it was a grassroots idea." 

Zastavny added, "If you can brew, then you can make Molotov cocktails."

This is most definitely not what I had in mind when I decided to become a beer lawyer.

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

Brewery CEO out after backlash to controversial vaccine comments

Vaccine mandates are a crime against humanity.

If you are not speaking out against them, you are a conspirator.

Those are the words Josh Stylman, the co-founder and now former CEO of Brooklyn, New York's Threes Brewing, recently shared on his personal Twitter account. He's also compared vaccine mandates to Jim Crow laws, the Nazi regime, and other historical atrocities. 

I’m not quite ready to declare the pandemic over, but I am ready to stop writing about it every single day

Nearly two years ago, I re-branded the Ohio Employer Law Blog as the Coronavirus Law Blog. It was a bit of marketing combined with the realization that Covid would be all that mattered to employers, at least in the short term.

That "short term" will turn two years old in nine days.

Today, however, I am officially re-re-branding the blog back to the Ohio Employer Law Blog.

If you want to get yourself into discrimination hot water, stereotype your protected-class employees

To cases recently settled by the EEOC illustrate the point that stereotypes of protected-class employees are a quick path an expensive lesson.

• Ranew's Management Company agreed to pay $250,000 to settle a disability discrimination claim after it fired an employee based on a "lack of trust" instead of permitting her to return from a leave of absence resulting from severe depression.

• American Freight Furniture and Mattress agreed to pay $5,000,000 to settle a sex discrimination lawsuit based on allegations that managers made hiring decisions based on bias and stereotypes, including that women would not "do as great a job at selling furniture as men," could not work in the warehouse because "women can’t lift," and that female employees would be " distraction" to their male coworkers.