WIRTW #647: the “paying my debts” edition

You'd think I'd know better. 

• A payroll $182 million higher.
• 7 more regular season wins with run differential 176 points higher. 
• An MLB-leading 254 home runs vs. a near worst 127.
• Home field advantage in short five-game series.
• Aaron Judge.

Yet, I couldn't resist the allure of an ALDS bet with my friend (and dyed in the wool Yankees fan) Dan Schwartz on the outcome of the Guardians/Yankees ALDS series. The stakes? The loser must write a blog post heaping praise upon on the other team.

I lost, so here it goes.

Experience matters. This holds true in sports as it does in litigation. 

The average age of the Yankees rosters is 30.12 years, the oldest in the American League. The Guardians? 26.42 years, the youngest in all of baseball. This is the Yankees sixth consecutive year in the playoffs. The last time the Guardians made the playoffs they were called the Indians. They haven't won a playoff series since 2016, and the only person on their current roster to play in that World Series was Jose Ramirez. The Guardians young nucleus will continue to win for a few more years until such time as they cannot afford to resign their very young and exciting nucleus of Steven Kwan (25), Andres Gimenez (24), Oscar Gonzalez (24), Triston McKenzie (25), or Emmanuel Clase (24). Heck, even former Cy Young winner Shane Bieber is only 27.

Litigation is no different. Yes, the lawyers with less experience can win a case. In fact, they often do. They can work harder and smarter. Facts are facts and law is law, and no matter how seasoned you are, it's hard to escape bad facts and contrary law. Heck, in the first case I ever tried (and won) to a jury I was a fifth-year lawyer who never had done an opening or closing in a courtroom, and my opposing counsel was a member of the 50-year club. Having more experience doesn't equate to win rate. But it also doesn't hurt. And sometimes, the side with "more" wins. Experience matters. In a close enough case, it can be the difference. 

So, congrats to the Yankees (and, by extension, Dan). We'll see you again next season, where a healthy Jose Ramirez and a team with a year of postseason experience under its belt will bring about a very different result.

Here's what I read and listened to this past week that I think you should also be reading and listening to.

Ageist and ableist statements to 58-year-old disabled employee doom employer’s discrimination defense

"I wouldn't think with your condition and—your medical condition and your age that you would want to teach."

"I think your disability is slowing all this down.… You're really too old to be doing this."

"You need to go ahead and retire.… I'm concerned about this disability you have, your condition with your liver."

"Just how disabled are you?"

"I'm tired of disabilities and I'm tired of medical problems."

"I'm not running a rehabilitation clinic."

"If you're not at 100 percent, I can't use you. You've got to be 100 percent for this job."
 

These are just some of the comments Robert Bledsoe — a 58-year-old nuclear-plant operator who returned to work following a liver transplant — claims his supervisor made to him in the months prior to his removal from a teaching position. The Tennessee Valley Authority, on the other hand, claimed that it demoted Bledsoe based on ethical concerns after his son was accepted to the training program he taught.

Don’t estop thinking about your leave claim

"Is there money owed to you for claims against third parties, whether or not you have filed a lawsuit or made a demand for payment, such as for accidents, employment disputes, insurance claims, or rights to sue?"

When Stephen Stanley filed his bankruptcy petition with the bankruptcy court, he answered that question, "No." 

His problem, however, was that within weeks of filing his bankruptcy, Stanley's employer fired him from job, which he believed was related to their earlier FMLA violations. 

Several months later, the bankruptcy court modified Stanley's bankruptcy plan with "no future modifications." Indeed, Stanley never disclosed to the bankruptcy court the FMLA claims (or the FMLA lawsuit he filed against his former employer) until 16 months later, and only after the employer's lawyer questioned him about it at his deposition in his FMLA interference lawsuit.

Unions: fad or trend?

Last Friday I joined my good friend Eric Meyer via Zoom on his weekly Employer Handbook Zoom Office Happy Hour. Our topic: whether the recent rise in union popularity and success is a fad or a trend. 

If you missed it live, you can watch the video replay via The Employer Handbook YouTube Channel.

And if you're the kind of person who wants to hear more of my voice (and who isn't?), then please check out this week's episode of The Norah and Dad Show, the podcast I co-host with my daughter. It's available via Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, Stitcher, the web, and everywhere else you find podcasts.

Jousting over union names and trademarks

One of the trends that has come through in the recent wave of unionization is the use by labor unions of corporate names and logos in their branding.

📦 Amazon Labor Union
☕ Starbucks Workers United
📱 Apple Retail Union
⚔️ Medieval Times Performers United

It's the latter that has caught the ire of the employer (Medieval Times), which has now filed a trademark infringement lawsuit against the union.

WIRTW #646: the “conceptualized” edition

A "concept album" is an album that tells a story through a single instrumental, compositional, or lyrical narrative or theme. The songs bind together through that theme and hold a larger purpose or meaning collectively than individually.

Debates rage over what album qualifies as the "first" concept album. You can make an argument for Frank Sinatra's In the Wee Small Hours, Pet Sounds by the Beach Boys, or The Mothers of Invention's Freak Out!. Conventional wisdom, however, gives that title to Sgt. Pepper's Lonely Hearts Club Band, the 1967 masterwork by The Beatles, in which the band assumed the alter ego of the titular band.

Rolling Stone just released its list of the 50 greatest concept albums of all time. I've always loved concept albums. The storytelling. The themes. The idea of the sum of the whole being greater that its individual parts. I have great memories of sneaking off to the woods during my summer at overnight camp to listen to a bootleg cassette of The Wall front to back, over and over and over. The Who's Tommy and Quadrophenia were my entrée into my lifelong love of that band. I would spend hours reading the liner notes of my Lamb Lies Down on Broadway CD to try to understand Peter Gabriel's bizarre story. 

Anyhow, borrowing Rolling Stone's idea, here's my list of my top 11 concept albums, ranked not by greatness, impact, or importance (they all fit that bill), but in order of which I'd choose to listen to, front to back, over and over and over.

1. David Bowie – The Rise and Fall of Ziggy Stardust and the Spiders from Mars
2. Genesis – The Lamb Lies Down on Broadway
3. Curtis Mayfield – Super Fly
4. The Who — Quadrophenia and Tommy (I couldn't pick just one)
5. The Kinks – The Kinks Are the Village Green Preservation Society
6. Pink Floyd – The Wall
7. Green Day – American Idiot
8. Liz Phair – Exile in Guyville
9. Marvin Gaye – What's Going On
10. The Beatles – Sgt. Pepper's Lonely Hearts Club Band

Agree? Disagree? Let me know.

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

Ex-Starbucks manager throws employer under the bus for its alleged anti-union retaliation

"I didn't want to do illegal stuff. I've worked my entire life to build up a career of integrity, and I was not going to allow Starbucks to take that from me."

That's what David Almond, the former manager of several of Buffalo-area Starbucks told an NLRB administrative law judge earlier year, according to information received by Bloomberg pursuant to its Freedom of Information Act request.

What "illegal stuff?" 

Biden’s Department of Labor proposes significant new independent contractor regulations

Who qualifies as an independent contractor? If the Biden administration's new proposed regulations take effect as drafted, the answer to that question will change significantly. 

Under the proposed new rules, the DOL will use a multi-factor "economic realities test" that considers and balances the following non-exclusive list of six factors to determine whether the worker is truly in business for themselves, or is an employee working for someone else.

Why employees are quitting might also tell you why they are unionizing

Why are employees quitting their jobs? StandOutCV (as reported by TLNT) wanted to know the answer, so it analyzed 2,698 recent social media posts where someone revealed the specific reason(s) for their resignation.

Here are the top 10 results.

A court was not having it when lawyers tried to victim-blame a sexual harassment plaintiff

One of our primary roles as attorneys is to protect our clients from their worse instincts. 

"Can I fire the employee who just filed an EEOC complaint or who's trying to form a union?" That's a really bad idea. 

"How do I erase the server with the smoking gun emails?" You don't. 

"If I ignore the harassment it will go away, right?" Umm, wrong.

"Let's file a motion to require a sexual harassment plaintiff to submit to a psychosexual examination?" 

In Carbajal v. Hayes Management Services, a federal court recently decided the propriety of just such a motion (very much) in the employee's favor. 

WIRTW #645: the “coach” edition

Do you have a side hustle? I now do, albeit an unpaid one. I just started my gig as a volunteer legal advisor for my daughter's high school mock trial team.

This year's case is fascinating. It's a suppression hearing over the issue of whether a student should have been Mirandized prior to being questioned by a school administration and a school resource officer. For the record, the Ohio Center for Law-Related Education's production values are off the chain.

I'm not a criminal attorney, and I've handled exactly one criminal case in my career (which I won at trial). In fact, nearly everything I know about criminal procedure I learned from a law school class I took 27 years ago plus my Law & Order addiction. That said, trial skills are trial skills, and I'm looking forward to using mine to help Lake Ridge Academy's team return to states for the 2nd consecutive year (and the 17th time overall).

While I'm on the topic of my daughter, please do she and I a solid and check out the latest episode of The Norah and Dad Show, now streaming everywhere, including Apple Podcasts, Spotify, Google Podcasts, Amazon, Overcast, Stitcher, and on the web.

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

Is a labor union liable for damages caused by its members during a strike

Suppose your employees walk off the job in protest of stalled negotiations over a new collective bargaining agreement. Further suppose that their union (allegedly) coordinates the strike with the precise time your concrete is being mixed and delivered for the day, causing the destruction of your product.

Can you hold the union liable under state law for their alleged tortious conduct?

According to the State of Washington's Supreme Court, the answer is "no."

Show this story to your employees who start clamoring for a union

When a labor union is engaged in organizing your employees, you are allowed to present facts to your employees to attempt to convince them to vote union "no." Here's a big ol' fact for you to file away if the need ever arises.

EEOC Sues Teamsters Local Union #455
for Sexual Harassment

What are you doing to address Bullying Prevention Month in your workplace?

October is Bullying Prevention Month.

Over 90% of employees say that they have been bullied by a co-worker or manager.

Yet, unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin, age…) bullying is probably lawful.

As the Supreme Court has famously said, our workplace discrimination laws are not meant to be a "general civility code." In layman's terms, our laws allow people to be jerks to each other at work as long as it's not because of a protected reason.

The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace.

The 12th nominee for the “Worst Employer of 2022” is … the hurricane haranguer

You might know Joy Gendusa, the CEO of PostcardMania, from her April 2020 video in which she called out employees who had reported her company to the local authorities for not following Covid-19 safety protocols. But that's so 2020 Worst Employer.

Gendusa is back in the news, this time for asking her employees to bring their families and pets into the office so that they could continue working during Hurricane Ian. 

In her words, communicated to employees during a Zoom call: "I honestly want to continue to deliver and I want to have a good end of quarter. And when [the hurricane] turns into nothing, I don't want it to be like, 'Great, we all stopped producing because of the media and the maybe that it was going to be terrible.'"

WIRTW #644: the “whitewater” edition

"What's the first film you remember seeing?"

That’s the lead off question on each episode of Films to be Buried With — Brett Goldstein's (aka Ted Lasso's Roy Kent) podcast. Each episode is a long form interview of a celebrity in which they their life story through films. It's a podcast worth celebrating this International Podcast Day and all other 364 days of the year.

The first movie I remember seeing is Race for Your Life, Charlie Brown, a 1977 Peanuts film in which the gang goes to summer camp and takes on a group of bullies in the annual river raft race.

I saw this film at the Woodhaven Mall with Uncle Ron and Aunt Rita … who were most definitely not my uncle and aunt. In fact, I had never met them before that day. I was four years old, and they ran a bus that took groups of kids to the movies during the summer. My parents paid to put their terrified four-year-old on a bus with two strangers to see a movie. I don't remember a thing about that film other than being completely freaked out on that bus and by the entire experience. In fact, it's the scariest movie I've ever seen about a river rafting trip. Thanks, Mom and Dad. 😞

What's the first film you remember seeing? Did it involve two strange adults picking you up at your house on a bus? Or was it an experience as memorable yet less creepy?

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

Correlation isn’t necessarily causation … except when it is

According to a recently filed EEOC lawsuit, Dollar General violated Title VII by firing a sales employee because of her pregnancy. More to the point, Dollar General, the EEOC alleges, fired her immediately after she advised her manager of her pregnancy. It listed "health" as the reason for her termination on her separation notice, after advising her of concerns for her safety.

Never say “nevermind” when child pornography is involved

You may not know who Spencer Elden is, but you almost certainly know what he looked like as a newborn. Spencer, in all of his glory, graces what is perhaps the most famous album cover of all time, or at least of the last 30 years — Nirvana's iconic grunge masterpiece, Nevermind.

Spencer Elden was also recently a plaintiff, as he sued Kurt Cobain's estate, Krist Novoselic, and Dave Grohl for child sexual exploitation based on their use of naked baby image. (He lost, btw, not once, but twice.)

While the lawsuit and its 30-year-old claim certainly seem like a b.s. money grab, it did get me thinking, do you know what to do if you discover child pornography in your workplace, on your network, or on one of your devices?

Here are four thoughts.

Dispelling six common wage and hour misconceptions

19 hours in a workday without overtime pay. That's how one Amazon delivery driver described his experience working for online conglomerate.

To be clear, while it might make for an awful work environment to work a 19-hour shift, there is nothing in the federal wage and hour laws that require overtime pay for a 19-hour workday. 

Overtime under the federal Fair Labor Standards Act is based on hours in a work week, not a workday. (Please check your state laws, employers in Alaska, California, Colorada, and Nevada, as your overtime obligations might be tied to hours in a workday, not work week.) The FLSA only requires time and a half of one's regular rate of pay is required for any hours in excess of 40 in a week. 

While it's easy to imagine 19-hour days quickly adding up to a number over 40 hours in a week, 19 hours in one workday, in and of itself, does not qualify one to overtime pay under the FLSA. 

Workplace romance vs. workplace harassment

The Boston Celtics have suspended their head coach, Ime Udoka, for the entire 2022-23 season.

His offense — it was initially reported that he had violated the team’s policies by engaging in a consensual intimate relationship with a female staff member. 

This punishment seemed … harsh. A year for a consensual relationship? If you don’t want your head coach dating staff, why not just direct him to end the affair with a stern warning not to let it happen again, instead of a year-long suspension? In fact, it seemed so harsh that I knew that there had to be more to this story.