WIRTW #636: the “what the heck” edition

Another week, another podcast appearance. This week you can catch me on What the Heck is Happening in HR, discussing all things employee handbooks.

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

Alex Jones trial offers a teachable moment on the issue of "inadvertent disclosure”

Suppose you're sitting in your office and your associate excitedly runs in, yelling, "We got 'em! The other side just sent us the entire contents of their client's cell phone, and oh boy are there some smoking guns!"

This exact issue just played out in an Austin, Texas, courtroom in the defamation trial between online conspiracy theorist Alex Jones and the parents of a 6-year-old killed in the Sandy Hook school shooting suing him for lying that the attack was a hoax. The parents had requested in discovery that Jones turn over all emails and text messages related to the shooting. Jones claimed that none existed because he doesn't email or text. Then 12 days ago his lawyer accidentally sent the entire contents of Jones's cell phone to the parents' attorneys.

What happened next would seem laughable if it unfolded during a prime-time legal drama. Indeed, in the immediate aftermath of these events unfolding in court, a former writer for Law & Order tweeted that they "wouldn't have let a lawyer do something that dumb." And yet it actually happened yesterday in an actual courtroom.

Alex Jones, seconds after being told that his lawyer mistakenly send a huge cache of texts to Sandy Hook families’ attorney:

“This is your Perry Mason moment” pic.twitter.com/f6byn6N6VA

— Bill Grueskin (@BGrueskin) August 3, 2022

"Your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you've sent for the past two years. And when informed they did not take any steps to identify it as privileged.… And that is how I know you lied to me about not having any text messages about Sandy Hook."

You won’t like OSHA when it’s angry

OSHA has proposed nearly $1.25 million in penalties against two Ohio Dollar Tree stores. 

The specific violations cited include hazards related to obstructed egress, unstable stacks, and inaccessible electrical equipment and fire extinguishers, in addition to trip and fall hazards caused by water leaking through the ceiling, carts, boxes, trash and merchandise spread throughout walking-working surfaces in the retail areas and storerooms.

These two sets of citation, however, only tell part of the story. 

Accountability starts at the top, even for the NFL

NFL disciplinary officer Sue L. Robinson has suspended Deshaun Watson for six games for his violation of the league's personal conduct policy based on allegations by four masseuses that he solicited prostitution by paying for sex acts.

Some see six games as a slap on the wrist. I don't, at least in the environment that bound Judge Robinson and her ruling.

While I don't in any way condone Watson's misconduct, the NFL would place itself in serious legal jeopardy by imposing a suspension that encourages Watson or his union to litigate.

Don’t be mad at Watson for getting off light; be mad at the NFL for its long history of giving white male owners a free pass for their own sexual misconduct. The league created the legal environment that let Watson (a Black player) off.

NLRB dismisses charges against lawyers for alleged “union busting” against the employees of its client … but let’s not celebrate yet

One law firm has been at the center of most of the recent high-profile anti-union organizing efforts in large multi-state employers such as Starbucks, Apple, and Trader Joe's — Littler Mendelson. The Service Employees International Union filed an unfair labor practice charge against that law firm and its responsible attorneys alleging that they violated the National Labor Relations Act by illegally polling Starbucks' employees about their support for the union. 

Thankfully, the NLRB has now dismissed that charge.

WIRTW #635: the “larp” edition

Every now and again a story is so bizarre it's worth taking a minute to pause, reflect, and marvel. 

Let me introduce you to the 4th of July Larp, a group based out of Poland that spends its free time role-playing their view of 2022 America. It's … well, it's a thing. You'll have to check it out for yourselves to fully appreciate what's going on here. I'll leave it to you to judge how accurately they peg the current state of our country.

I do, however, have one bone to pick. And it's a big one. What's with the Cleveland Browns jersey? I think the Dallas Cowboys would be a much better representation of 'Murica than my hometown Browns.

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

Unlike ordering at Chick-Fil-A, legal compliance isn’t chosen from a menu.

"We are looking for volunteers for our new Drive Thru Express!🚘 Earn 5 free entrees per shift (1 hr) worked. Message us for details"

Anyone see anything wrong with this (since deleted) post? I sure do, as does my friend Suzanne Lucas (aka the Evil HR Lady), who correctly points out: "You cannot do this. Even if you want to declare yourself the Lord's chicken, you are still a for-profit business, and for-profit businesses cannot have volunteers. Not ever. Paying in sandwiches does not count."

To put in more succinctly, In a for-profit business, volunteer labor is illegal. Hard stop. 

Have you listened to Labor Relatedly yet?

Over the past few years, I've toyed with the idea of launching my own legal podcast. Two things have held me back. First, I don't really want to add another "thing" for me to manage. Secondly, other people ask me to guest on their podcasts and I feel like I'm getting enough bang for the podcasting buck that the added time of recording and producing my own show wouldn't justify any additional return.

Thus, I jumped at the chance when my friend Michael VanDervort asked if I wanted to join his existing podcast, DriveThruHR, as a recurring co-host to discuss all things labor relations in light of current and historic rise in union organizing. 

Posting about litigation (actual or potential) is a terrible idea

Until yesterday, Erin Overbey worked as an editor at The New Yorker. Shortly after her termination, Overbey took to Twitter to write about her termination. Across 35 tweets, she accuses the magazine of retaliating against her because of she had previously raised concerns over its lack of equity and inclusivity. 

While the allegations are interesting, I instead want to focus today's lens on the idea of tweeting about a matter in litigation, or reasonably expected to head in that direction. What I'm about to say holds true for employees and employers.

Cursing in the workplace

According to one survey, 57% of American employees admit to swearing at work. (Count me in the "yes" column.)

Where is the line between swearing as harmless workplace banter and swearing as harmful unlawful harassment? The seminal case is Reeves v. C.H. Robinson Worldwide, which involved the female plaintiff's offense to the salty language used by male co-workers in nearby cubicles.

WIRTW #634: the “%@$&*!” edition

Vacation 💑

I love trivia, even if it doesn't always love me back.

For example, in 1993 my collegiate trivia bowl team lost in the university finals. (For the record, I've always been more than suspicious of the fact that the winning team were fraternity brothers with the quiz master and knew the answer to nearly every question almost too quickly.)

In November 1999, I lacked the fastest fingers on Who Wants to be a Millionaire. ("Where's the proof," you ask? Here you go.)

Thus, when my niece asked if we wanted to do trivia night at a local winery during our visit last week, my answer was a resounding, "Yes!" (For the record, she had me at winery; trivia just provided the exclamation point.)

What's better than trivia night at a winery? Barnstorming into town and winning trivia night at a winery … which is exactly what we did. Correctly answering 16 out of 21 questions earned us a three-way tie for first place, which we broke by naming all seven dwarfs the quickest. 

Of the five questions we answered incorrectly, one stuck with me as the most interesting and obscure. So today I'm sharing it with you.

What is the word for a string of typographical symbols (such as %@$&*!) used in place of an obscenity, especially in comic strips?

Take your best guess in comments, and I'll provide the correct answer on Monday. No Googling!

Here's what I read and listened to this week and last week that I think you should be reading and listening to, too.

We need to talk about litigation holds and spoliation of evidence

The situation playing out in real time between Congress and the Secret Service over text messages related to the Jan. 6th insurrection is quite the teachable moment on litigation holds and spoliation of evidence.

On Jan. 16, 2021, Congress sent the Department of Homeland Security (which oversees the Secret Service) a broad preservation and production request for documents related to Jan. 6, which included communications "received, prepared or sent" between Jan. 5 and Jan 7. 

Following the Jan. 16 request, the Secret Service explained to employees that it was up to them to preserve records from their phones and provided a step-by-step guide to preserve mobile phone content, including text messages, prior to a phone migration that occurred on Jan. 27. That migration, however, appears to have caused a widespread destruction of data, as the Secret Service has only been able to produce to the Jan. 6 Committee one text message from the critical three-day window.

What went wrong? 

A lot, apparently.

A modest proposal to revamp continuing legal education credits #CLECreditsforBlogging

"I'm finishing all my CLE credits this week. It amazes me how if you keep up with law changes regularly how out-of-date these CLEs feel."

That's an excerpt of a recent conversation between my friend, Kate Bischoff, and me. Kate is 100 percent correct. I learn very little, if anything from the continuing education courses I take. I take them because the Ohio Supreme Court requires me to check a 24-credit box every two years, not because they offer me any educational value.

Abortion travel benefits don’t discriminate against non-abortion-seeking pregnant workers

Within hours of the Supreme Court releasing its opinion in Dobbs v. Jackson Women’s Health Organization and reversing Roe v. Wade, DICK'S Sporting Goods announced that it will provide up to $4,000 in travel expense reimbursement for an employee, spouse, or dependent enrolled in its medical plan (plus one support person) to travel to the nearest location where abortion care is legally available. 

Last week, America First Legal, an ultra-conservative non-profit legal group run by "patriots" such as Stephen Miller and Mark Meadows, filed a charge of discrimination with the Equal Employment Opportunity Commission asking the agency to conclude that DICK'S offering of abortion travel benefits discriminates against female employees who choose to give birth. According to America First Legal Senior Counselor and Director of Oversight Reed D. Rubinstein, "Subsidizing travel for an abortion, while denying an equivalent benefit to a mother welcoming a new baby, is perverse and unlawful."

This is why I (almost) always recommend that employers provide terminated employees a reasonable severance package

Roosevelt Jointer worked as a maintenance supervisor at Tesla from September 2017 until last month. That was when his manager called him over the phone, during Jointer's vacation, to tell him that he had been fired. 

Business Insider quotes Jointer about what was said during that call:

I did not receive any advance notice that I would be losing my job. Up to that point, no one at Tesla ever raised any issues with me regarding my performance.

During this call, my manager told me that I would receive a severance offer over an e-mail and urged me to sign a separation agreement to get a severance payment of one week's salary [and two months of health insurance].

He did not sign the agreement. 

WIRTW #633: the “what I’m listening to” edition

I'm weird. I travel to my office for work every day possible. Not my "home office," but my actual office, inside my law firm, in a building with our name on it. Working in an office, as opposed to working remotely from my home, offers many benefits. I get to collaborate with and better know my co-workers. It fosters a sense of community and belonging within my business. It gets me out of my house (and t-shirts). And it provides a daily commute that enables me to listen to podcasts.

"Which podcasts," you ask? Here's my current Top 5 list (excluding any I've previously recommended to you).

1/ Films To Be Buried With — Hosted by Brett Goldstein (aka Ted Lasso's Roy Kent), each episode features a celebrity guest telling the story of their life through a history of movies (first movie they remember seeing, sexiest movie, best movie, etc.). It's always a compelling and entertaining listen, even when the guest is some British comedian I've never heard of. 

2/ Slow Burn — Each season of this podcast, produced by Slate, tackles, in long form, a political issue from our recent history. Past seasons examined Watergate, Bill Clinton's impeachment, Rodney King and the L.A. Riots, and David Duke. The current 7th season, which examines Roe v. Wade and the history of abortion legislation and politics, is an important listen in this specific time in our history.

3/ The Bittersweet Life — Ever wonder what it's like to live as an expat in a foreign country. This podcast, hosted by one current expat living in Rome and another who's since moved back to the States, makes a pretty compelling case to pitch it all and move to Europe.

4/ Ghost Church — Religion has always fascinated me. Not because I'm particularly religious (I'm not), but because I want to understand what draws others in. In this limited series, comedian Jamie Loftus (check out her other excellent show, My Year in Mensa) explores, investigates, and interrogates American spiritualism, a century-old tradition of communing with the dead that takes place in camps full of mediums. It's also quite funny without mocking this faith in the least.

5/ Things Fell Apart — I don't think I'm breaking any news by telling you that our country is in the midst of a significant culture war. This BBC podcast examines various pressure points that are currently ripping our country apart (e.g., abortion, LGBTQ+ rights, sex education) by talking to people on both sides of the front lines.

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

A Q&A on service animals at work

The EEOC has sued Hobby Lobby, accusing the arts-and-crafts retailer of refusing to reasonably accommodate a cashier by declining her the use a service dog and ultimately firing her.

The agency shares the details in its press release:

According to the suit, the employee advised her manager that she needed to bring her fully trained service dog to work to assist her with symptoms caused by PTSD, anxiety and depression. The company's human resources representative met with the employee to discuss her request but concluded the dog would present a safety concern because a coworker or customer might be allergic to or trip over the dog, or the dog might break something. Even though Hobby Lobby allows customers to bring service dogs and other dogs to the store, managers were unwilling to allow the employee's service dog in the store to see whether there was an actual safety concern. Hobby Lobby ultimately terminated the employee when she could not work without her service dog.

Having a disability is NOT an excuse for mistreating others

I've written before about BrewDog (here and here), the multinational Scottish craft brewery accused by hundreds of former employees of systemic mistreatment through its sexist and misogynist work environment. The brewery's founder and CEO, James Watt, stands at the center of much of controversy and most point to him as the root cause of most of the allegation.

Earlier this week, Watt appeared as a guest on The Diary of CEO podcast. During the interview, Watt blamed his pattern of mistreatment of employees him possibly being autistic.

Forced religion and work do not mix

I believe that everyone's relationship with God (whether you call that deity God, Yahweh, Jesus, Allah, Vishnu, Buddha, something else, or nothing at all) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today's discussion, which focuses on a Title VII lawsuit the EEOC recently filed against Aurora Pro Services, a North Carolina residential home service and repair company, alleged to have required employees to participate in religious prayer sessions as a condition of employment.

WIRTW #632: the “it's been a week” edition

From the Supreme Court's opinion terminating the constitutional right to abortion … to other Supreme Court opinions allowing and endorsing the open carry of firearms, prayer in public schools, the public funding of religious schools, and global warming … to the grim details of the near end of our republic laid bare by the brave Congressional testimony of Cassidy Hutchinson, it's been one hell of an exhausting, sad, and enraging week.

Weeks like this one demand a breather. So today, no law (other than the below list of links to read). Just music. 

Enjoy my daughter's cover of Alanis Morissette's "Hand in My Pocket", recorded live at her gig last weekend at Akronym Brewing. (She's quite the busy musician this summer; you'll find all of her upcoming gigs listed on her website, including upstate New York, on July 15.)

Everyone please have safe, relaxing, and peaceful holiday weekend, full of family, food, and frivolity. I'm not feeling particularly patriotic these days, but I'll nonetheless find a way enjoy my burgers, beer, and breather. 🍔 🍺 😌

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