The CDC is the tail wagging the public’s dog

Last week the CDC updated its Covid isolation guidelines. The agency says it's "to help the public better protect themselves and understand their risk." 

Most importantly, there is no longer any distinction between those who are fully vaccinated and those who are unvaccinated against the virus. Instead, the CDC says anyone can end isolation after five days if asymptomatic or if fever-free for 24 hours and other symptoms are improving. Thereafter, one should mask around others either through day 10 or sooner after two sequential negative tests 48 hours apart.

HR may not be employees’ “friend,” but it’s also not their enemy

As the former Microsoft VP of HR I can assure you that HR is not your friend.

That headline from a BusinessInsider article written by Chris Williams, Microsoft's former head of HR from 1997 thru 2000, caught my eye. 

He writes: "Do not see your team's HR representative as a friend. … HR is not your friend. … [T]hey are not paid to be the employee's ally."

On the one hand, Williams is correct. HR is not an employee's friend. But by framing the issue as such, he is suggesting that HR is an employee's enemy. That distinction is damaging. HR is neither friend nor foe of employees. It's their partner. If this is not how HR is working within your company, you need to reexamine why you have HR in the first place.

WIRTW #637: the “down on the farm” edition

I grew up in Philadelphia and attended City of Philadelphia public schools. My high school had 4,500 students and was surrounded by barbed wire fencing. In a lot of ways, it felt more like a prison than a school.

My kids attend cushy suburban private school. It's a luxury that I'm happy to be able to provide to them. They have a wooded 93-acre campus to explore, small class sizes, a unique curriculum not tied to state-mandated requirements, and now an actual farm that doubles as an outdoor experiential classroom. As far as I know it's the only such outdoor space in NE Ohio. 

Dubbed "Aspiration Acres," Lake Ridge Academy dedicated this new addition to our campus earlier this week. It has gardens, a silo, a barn, and a chicken coop with live chickens. Later this year the school will dedicate our new outdoor woodland all-purpose trail, complete with parkour obstacles and a sugar shack that will provide a permanent home for the 2nd the 5th graders' annual maple sugaring. 

For more information, I encourage you to visit lakeridgeacademy.org.

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

Consistency matters when applying anti-harassment rules

Can an employer legally fire an employee who writes "whore board" on an overtime sign-up sheet? Let's explore.

Following unsuccessful negotiations for a new union contract, Constellium unilaterally implemented a new overtime policy that required employees to sign up for overtime on a sheet posted on a bulletin board outside the lunchroom.

Employees were not happy about the new policy. Those who opposed it began calling the overtime sign-up sheet a "whore board," as they believed that those who used it to sign up for overtime were selling out their union. "Whore board" quickly became common slang in the workplace (even among supervisors). There was no evidence that Constellium disciplined anyone for saying the vulgarity.

One employee, Jack Williams, went a step further. He wrote "whore board" on the sign-up sheet. Constellium then fired him for "willfully and deliberately engaging in insulting and harassing conduct."

Employee too distraught to work over Dobbs decision loses job

I haven't been shy about hiding my disgust over Dobbs, the end of constitutional protections for abortion, and the threat to reproductive, women's and other fundamental rights that our nation currently faces. 

Michael Lopez was also disgusted; so disgusted, in fact, that he couldn't even work. Lopez was a production coordinator at Universal Music Enterprises, whose job included processing a weekly Friday report of upcoming releases. Except the Friday that the Supreme Court released Dobbs, Lopez was too upset to do his job. Instead, he sent the following email to his co-workers:

Do you know what to do and not to do when federal agents arrive with a search warrant?

The front door to your business opens, and in walks a column of federal agents with boxes, computer imaging equipment, and a search warrant.

Do you what to do and what not to do? Does your business have appropriate response procedures in place? Any have you trained the person most likely to receive the agents (a receptionist, for example) on how to appropriately respond?

Here are some suggestions.

Does craft beer have a labor problem?

Does craft beer have a labor problem? Julie Rhodes, writing at PorchDrinking, sure thinks so. 

She cites low wages and labor conditions as the two main drivers of her conclusion. 

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.