“Abortion discrimination” = illegal pregnancy discrimination … even after Dobbs

Is it legal to fire an employee who has an abortion? This is question that a lot of employers and employees will now be asking in light of the Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization that that there is no constitutional right to abortion.

As controversial and divisive of an issue as abortion is (perhaps now more than ever), the law is clear that an employer cannot fire an employee for having one. Nothing the Supreme Court did in Dobbs changes this.

Federal appeals court rejects reliability of electronic signatures on employment agreements

During a webinar I recently conducted on employee handbooks, someone asked me a question about the best practice between wet signatures vs. e-signatures on handbook receipts. I answered that either was fine, but at least with the digital footprint of an e-signature you avoid the disingenuous "that's not my signature," or the "I don't ever remember signing that" we sometimes hear from plaintiffs in deposition. 

Then I read Barrows v. Brinker Restaurant Corp.

The best response to the end of Roe v. Wade came from a company called DICK’S

Within hours of the Supreme Court announcing its decision in Dobbs v. Jackson Women’s Health Organization, Lauren Horbart, the President and CEO of DICK'S Sporting Goods, posted the following on LinkedIn.

At DICK’S, our teammates are the heart of our business, and we are committed to protecting their health and well-being.… 

In response to today's ruling, we are announcing that if a state one of our teammates lives in restricts access to abortion, DICK'S Sporting Goods will provide up to $4,000 in travel expense reimbursement to travel to the nearest location where that care is legally available. This benefit will be provided to any teammate, spouse or dependent enrolled in our medical plan, along with one support person.

We recognize people feel passionately about this topic -- and that there are teammates and athletes who will not agree with this decision. However, we also recognize that decisions involving health and families are deeply personal and made with thoughtful consideration. We are making this decision so our teammates can access the same health care options, regardless of where they live, and choose what is best for them.

WIRTW #631: the “(not so) Good Ship BrewDog” edition

Job interview: "Are you planning on having kids? Do kids feature in your five-year plan? Because we want someone in this role for a minimum of five years."

Answer: "I've never wanted kids. Never have; never will. I've been told I probably can't have kids anyway."

Follow-up phone call: "You're the best candidate for the job. You're everything that we've been looking for. You'd be absolutely perfect for the role. But we need to clear things up with this whole 'kids' thing."

Answer: "I don't want them, it's not part of my plan, and I can't anyway."

Final conversation: "We can't hire you because of the whole 'marriage and babies' thing."

That what Alice Hayward claims happened to her at BrewDog when she applied for a promotion from bar work into a sales position, as reported by the BBC in the Good Ship BrewDog podcast. I've absolutely devoured this six-episode podcast over the past several days. (Bonus points for the narrator's lovely Scottish brogue.)

If you're curious about the damage that a toxic work culture can cause, I cannot more highly recommend this podcast. While the entire show is a master class in how not to manage employees, I thought episode 5 — which focuses on BrewDog's expansion into the U.S. — was the standout.

Good Ship BrewDog also underscores why I decided to become a beer lawyer. Our industry is cool, fun, and full of great people. Yet, there is still so much work to do.

Before I get to this week's list of links, I'll leave you with this thought I found on Instagram.

Regardless of how "hype" or "good" the beer is, stop supporting breweries … who perpetuate problem behavior.

Businesses have little financial incentive to cease misogynistic, homophobic, transphobic, racist, and other problematic behavior if we who stand against it and believe it's dangerous and wrong keep supporting them with our wallets. 

Or, to put it another way (quoting Jim Vorel in Paste Magazine, from a recent story on another brewery, Tired Hands — more on their story next week): "If we look away, the beer world's sexism will always return to the status quo."

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

THIS is how you help a struggling employee

Peter Gabriel sits on my personal Mount Rushmore of musical artists. He's also its longest resident, first etched during my high school years. I did not get the chance to see him play live, however, until the summer of 1994, Aug. 8, to be precise. He played the Stabler Arena at Lehigh University, a warm-up gig for his set six days later that would close the Woodstock '94.

Paula Cole, who had not yet struck it big herself, was Peter's main backing vocalist. She joined that tour for its final two legs, replacing Sinéad O'Connor. 

For that final leg of the tour (which included the date I attended), Peter added Don't Give Up to the set, a song originally made famous for Peter's duet with Kate Bush on the So album. The show I attended was one of the first (if not the first) at which the band performed Don't Give Up. Unfortunately, about half-way through, Paula Cole had a bit of a problem with the lyrics and went completely silent through her part while band kept playing.

Peter jumped in. "It's been a while since we've done this one." Paula then composed herself enough to finish the song (beautifully and brilliantly, I might add).

But it's what happened next that stuck with me for the past 28 years. 

Is there a statute of limitations on old social media posts?

"LET ME SALUTE TO HITLER THE GREAT. He said 'i would have killed all the jews of the world, but I kept some to show the world why i killed them.'"

"F**k that Jew."

"who bothering ya!!! Let me at em! Lol if it's a Jew give me their @ and I'll do it 😂 😂 😂"

These are three examples of many recently discovered blatantly and offensively anti-Semitic tweets allegedly posted by Ismail Quran, Cleveland's "Police Officer of the Year" for 2019.

The thing is, they all pre-date Quran joining the department, and some are a decade old.

Apple becomes the latest national retailer to succumb to the union wave

Workers at the Towson, Maryland, Apple Store made history by becoming the first such store to vote to unionize. It wasn't close, with 65 "yes" votes and 33 "no" votes (12 eligible employees failed to cast a vote). Apple joins Starbucks, Amazon, and REI as major national retailers bit by the union bug, with petitions pending a myriad more Starbucks outposts, other Amazon facilities and Apple Stores, and other retailers such Trader Joe's and Target. In other words, the union wave is becoming a tsunami.

If you're wondering what's fueling this historic drive to organize, the Department of Labor thinks it has some answers.

The DOL believes it all comes down to employees demanding a voice.

The 8th nominee for the “Worst Employer of 2022” is … Vince McMahon

Over the years (for now former) WWE Chairman and CEO Vince McMahon has been accused of some awful treatment of employees. For starters, wrestling's first ever female referee accused him of rape after she refused to perform fellatio on him. And then there was 1994's criminal trial in which the United States accused McMahon of supplying illegal steroids to wrestlers. (For the record, McMahon was exonerated of both allegations.) These allegations don't include others of mistreatment of wrestlers, such as allegedly allowing for the unsafe working conditions that led to the in-ring death of Owen Hart, or not providing wrestlers health insurance because they are classified as independent contractors and not as employees.

But it's the allegations against Mr. McMahon that The Wall Street Journal brought to light last week that has earned him his nomination as the Worst Employer of 2022.

WIRTW #630: the “just like heaven” edition

I love sharing clips of my daughter playing music. It's made for such a cool catalogue of her growth as an artist over the years. So, here's a snippet of her cover of The Cure's Just Like Heaven from her show a couple of weekends ago. 

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Norah has quite the busy summer of music with gigs all over Northeast Ohio (and maybe even a gig or two outside of Ohio). Stay tuned for more clips as the summer progresses.

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

The 7th nominee for the “Worst Employer of 2022” is … the murder enabler

"It is with a deep sadness and a heavy heart I share one of our students, Riley Whitelaw, passed away over the weekend. Currently, we are unable to share additional information."

That was the introduction from a letter Air Academy HS Principal Dan Olson sent to students last week.

As you can imagine, the "additional information" is heartbreaking.

Riley Whitelaw, age 16, worked at a local Walgreens. According to KKTV 11 News, last year she told store managers that a coworker, Joshua Johnson (age 28), was making advances towards her that made her uncomfortable. On June 11 a manager discovered Ms. Whitelaw dead on the floor of the breakroom with neck injuries and covered in blood. Johnson is currently in custody on first-degree murder charges.

Making threats vs. stating facts during union organizing

"Just know that if you unionize, when you are negotiating your benefits, you could gain, you could lose, or you could stay the same."

This is what Neha Cremin, a transgender and pro-union Starbucks worker, claims her manager told her. She alleges in her unfair labor practice charge with the National Labor Relations Board that the statement was an anti-union threat. How? 

1/ The company's health insurance covers gender reassignment surgery (include travel expenses) and other gender-affirming procedures such as hair transplants or breast reduction.

2/ Cremin's manager knew that she had previously used those benefits. 

3/ Therefore, mentioning the possibility of losing benefits during collective bargaining was a threat to take away trans health benefits after a union victory.

The manager's statement was not unlawful under the National Labor Relations Act, no matter how Cremin interpreted it or is attempting to spin it in her unfair labor practice charge.

Ohio decides arming teachers is the solution to mass shootings in schools; Ohio is very wrong

Yesterday, Ohio Governor Mike DeWine signed a new law that will lower the training hours school personnel to be armed from about 700 hours to a mere 24 hours — four for scenario-based training plus 20 for first-aid training, school-shooting history eduction, and reunification education.

This law is the worst possible idea to solve our gun violence and school shooting epidemic. Here are six reasons why.

LGBTQ+ rights vs. religious liberty

"It's an abomination to God. Rainbow is not meant to be displayed as a sign for sexual gender."

That's what Daniel Snyder wrote on the electronic bulletin board of his employer, Arconic. According to the Des Moines Register and Snyder's recently filed lawsuit, it's also what got him fired.

WIRTW #629: the “podcast appearance” edition

Earlier this week I had the pleasure of appearing on the Decision Vision podcast. The topic of discussion: "Should I allow my company to unionize?"

In an answer that should surprise absolutely no one who's been reading along, my answer is a firm, "No."

Part of my reasoning is that I do not believe unions continue to provide a necessary and valuable service for the employees they represent.

You can listen to the full interview here, or wherever you get your podcasts.

While we're talking about podcasts, please don't forget to listen to this week's episode of The Norah and Dad Show, available on Apple Podcasts, Google Podcasts, Spotify, Overcast, Stitcher, our website, and everywhere else podcasts are available. We discuss fructose malabsorption, the end of Norah's school year, her first gig of a very busy summer of music, Mexican food, sewer tweets, memes for Jesus, and Frustoseaid 88. 

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

Can you legally close a facility in response to unionization?

Almost two months to the day that workers at the College Ave. Starbucks location in Ithaca, New York, voted to unionize, the coffee conglomerate announced its intent to close the store on June 10. Employees claim that the closure was in retaliation for unionization and a post-vote wildcat strike over an overflowed grease trap.

In a tweet, Starbucks stated that the decision to close that store was not "easy" and that it was based on "many factors." The store's workers allege in an NLRB unfair labor practice charge that the only "factor" is illegal retaliation.

Do the employees have an argument? Can a company close a facility in response to unionization? Not surprisingly, it depends.

The 6th nominee for the “Worst Employer of 2022” is … the sexual harassment ignorer

All of the following allegedly happened during the mere five weeks that Hannah Navarro worked at a Pratville, Alabama, Chipotle restaurant.

• On Navarro's first day of employment, Nick Baker, the store's general manager, said that she could sit on his lap.
• A few days later Baker told Navarro that she could be his "boo." He then grabbed her arm when she told him that she had a boyfriend and declined.
• Baker (along with other male employees) would pass around pictures of female employees (including Navarro), visit their social media accounts, and make open comments about their bodies at work.

Surveilling your employee’s online activity to out union supporters is illegal … like, really, really illegal

Elon Musk. The name itself evokes a visceral reaction. Electric car visionary. Astronaut wannabe. Opponent of remote work. Potential Twitter owner. Failed SNL host. 

And, according to CNBC, Musk is also a spy, illegally surveilling his employees' online activities during a 2017 and 2018 union organizing drive at one of Tesla's factories.

WIRTW #628: the “summer tour” edition

Outdoor music season is beginning here in Northeast Ohio, which means that my daughter has a bunch of shows booked for the summer … starting this coming Sunday from 4 - 6 pm at Crocker Park.

You’ll find all of the specifics for all of the shows, including locations and, when available, performance times at norahmariemusic.com. Please stop by and say hello.

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

Mere "discouragement" is enough to state an FMLA interference claim, federal appeals court holds

"You've taken serious amounts of FMLA … don't take any more FMLA. If you do so, you will be disciplined."

That's what Salvatore Ziccarelli, a corrections officer with the Cook County Sheriff's Office suffering from PTSD, claimed that the FMLA manager, Wylola Shinnawi, told him upon expressing his intent to enter an eight-week in-patient treatment program. 

Based on that conversation (the substance of which Shinnawi disputed), Ziccarelli decided to retire … and sue his employer and Shinnawi for FMLA interference.

Do you know? Unfair labor practice strikes

Workers who recently organized a Peoria, Illinois, Starbucks walked off the job on a recent Saturday in protest of alleged unfair labor practice committed by their employer at the store. The strike lasted a half-day and there are reports of similar strikes at other stores around the country.

Week.com quotes one employee on the picket line, Jon Gill, "Starbucks is breaking the law. Starbucks is retaliating against us, and if we do not organize ourselves to fight back, then we are showing Starbucks that we are allowing them to break the law."