The time has come to legislate gluten-free food

"I'm gluten free…"

That's how my 15-year-old starts his order at every restaurant. He has Celiac disease and gets very ill anytime he eats gluten.

For the uninformed, Celiac disease is a genetic autoimmune condition that affects the gastrointestinal tract when gluten — a protein found in wheat, barley, and rye — is ingested. When someone with Celiac disease eats gluten, the lining of the small intestine is damaged. In Donovan's case he gets serious gastrointestinal symptoms, sometimes for days.

Thus, Donovan is very particular in what he eats and how he orders, as was the case last week at the Fargo Bar & Grill, a dinnertime stop we made while visiting family on the Finger Lakes last weekend.

WIRTW #680: the “walk up song” edition

Above the Law thinks that it's time for lawyers to have walk-up songs. 

History says that the walk-up song started at Old Comiskey Park in 1970, with the White Sox organist playing each player's home state song as they walked up to the plate. Over time, the tradition expanded to other ballparks and different music. 

What's the most famous walk-up song of all time? I'd argue Ricky "Wild Thing" Vaughn's "Wild Thing" (from the movie "Major League"). In real life? Mariano Rivera's "Enter Sandman"? Chase Utley's "Kashmir"? Trevor Hoffman's "Hells Bells"?

Which brings me back to the question posed by Above the Law: What would our lives be like if our own theme songs accompanied us while we work? 

It's a great question. I think mine would be "Career Opportunities" by The Clash. Driving guitar + a workplace theme = gold for this employment lawyer.

How about you? What walk-up song would you choose for your job?

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

6th Circuit opinion guts the validity of e-signatures on employment documents

"I never saw that agreement and I never signed it." That's all that Andrew Bazemore said under oath in defense of Papa John's claim that he was required to arbitrate his FLSA claim relating to an under-reimbursement of vehicle expenses.

The 6th Circuit held that Bazemore's otherwise unsupported declaration was enough to create an issue of fact as to the arbitrability of his claim. 

X marks the spot

There's nothing inherently illegal about naming one of your conference rooms "s3xy." If, however, your company has a history of allegations of sexual harassment and other sex discrimination, it's not the wisest choice.

"s3Xy" is among the names X (née Twitter) chose to rebrand the conference rooms inside its corporate offices. X's sister companies, SpaceX and Tesla, have a long history of defending sexual harassment lawsuits (and allegedly retaliating against the victims). All of these companies have one thing in common — Elon Musk.

WIRTW #679: the “Portugal. The Podcast” edition

It's been a hot minute since my daughter and I recorded an episode of our podcast, The Norah and Dad Show. It only took a Portuguese holiday to get us off our duffs to record. It was a trip more than three years in the making (thanks to Covid), and we made the most of it — 12 days spread across Porto, Peniche, and Lisbon. On the episode we share our favorites from each of our three stops, some restaurant recommendations, cool sights and sounds (peacocks!), and our overall impressions of an amazing country.

You'll find it wherever you get you podcasts, including Apple, Spotify, Google, Amazon, and on the web.

When you finished listening to The Norah and Dad Show, I have two additional podcasts I recorded this week that you should also check out: The World at Work Workspan Podcast (discussing the significance of SCOTUS's end-of-term flurry of opinions) and DriveThru HR''s Labor Relatedly (discussing the ongoing Hollywood labor strikes and what they mean for all employers).

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

Never send an accused harasser on a business trip with his alleged victim

"If he wants to sleep with someone, you have to say yes. It's normal that the coach sleeps with the players in our team."

That's what an anonymous player told The Guardian about Bruce Mwape, head coach of the Zambia women's national team.

Are we really still talking about masks?

In-N-Out burgers are mid. Its employment practices are even worse.  

The restaurant chain is prohibiting employees in five states from wearing masks unless they receive a medical note from a doctor. 

The new rules apply to employees in five red or purple states — Arizona, Colorado, Nevada, Texas and Utah. Meanwhile, employees in two blue states — Oregon and California — may still opt to wear a mask as long as it's a company-approved N95. 

According to a company-wide memo, these new rule are designed to "emphasize the importance of customer service and the ability to show our Associates' smiles and other facial features." 

The 8th nominee for the “Worst Employer of 2023” is … the head hunter

If you work for the Anatomical Gift Association of Illinois (a non-profit organization dedicated to the procurement, preparation, and preservation of donations for medical and scientific study), body parts are an unfortunate occupational hazard. If, however, you lodge complaints with your supervisors about the "mishandling and poor conditions" of donated bodies, and then find three dismembered heads waiting for you at your desk … that occupational hazard becomes retaliation.

Why all employers should care about the SAG-AFTRA and WGA strikes

At midnight on July 14, SAG-AFTRA, the labor union representing 160,000 film and television actors, went on striking, joining their fellow members of the WGA on the Hollywood picket lines. 

One of the key issues in both negotiations in the future of AI in the entertainment industry. SAG-AFTRA claims that the studios want the ability to pay background actors for one day's work use that likeness in perpetuity for any project without consent or compensation, including through the use of generative AI to fully replace the live actor. Similarly, a key sticking point for the WGA is the use of generative AI to write scripts in their entirety, which can then be edited by lower-priced non-union members.

WIRTW #678: the “Happy Birthday” edition

Today is Donovan's 15th birthday. So, everyone please do this dad a solid and wish a 🎂 happy birthday 🎂 to this funny, smart, caring, compassionate, empathic, goofy, loving (and video-game loving) kid. I am better person because Donovan is my life.

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

A disabled employee is entitled to a “reasonable” accommodation, not a “preferred” accommodation

Jay Hannah worked as a package delivery driver for UPS. He developed hip bursitis, which caused pain in his lower back, hip, and buttocks. As a result, he requested two alternative reasonable accommodations: either that UPS allow him to drive his route with a smaller truck with softer suspension or that UPS reassign him to a non-driving inside job. 

UPS denied both requests. It determined that the specific needs of Hannah's route required a larger truck, and that the smaller van had an insufficient capacity to service his route. Other possible alternatives that could have permitted Hannah to use a smaller truck — giving a part of his route to another driver or completing the route himself in multiple trips — were not feasible as each would violate the governing collective bargaining agreement. Further, there were no openings for inside work at the time. UPS advised Hannah that it would consider him for any openings as they arose.

While UPS denied Hannah the particular accommodations he requested, it did allow him to retain his job and take a leave of absence without pay until he could return to work. And after several months, Hannah did return to work and thereafter continued to drive the route to which he was assigned in a truck suited for that route.

Color me unsurprised that businesses are already using 303 Creative to discriminate

If a human identifies as anything other than a man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.

Those are the words of Christine Geiger, the owner of Studio 8 Hair Lab, in a post on the business's now-deleted Facebook page. In a still-available comment on another Facebook page, Geiger says, "I have no issues with LGB. It’s the TQ+ that I'm not going to support. For those that don't know what the + is for, it's for MAP (Minor Attracted Person aka: pedophile)." Meanwhile, the business's private Instagram page describes itself as, "A private CONSERVATIVE business that does not cater to woke ideologies." 

We get the point. Geiger doesn't like transgender people and is using her religion and the Supreme Court's decision in 303 Creative v. Elenis to justify her discrimination.

“Geographical discrimination” is NOT a thing

"If you don’t relocate and return to in-person work, we’re going to have to let you go." Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back.

According to a recent report, employees are considering suing their employers for geographical discrimination. 

Workers who moved to another city, state, or even country from their employer's main office during the pandemic are claiming that they're being discriminated against geographically by being forced to return to in-person work.

If you can’t beat ’em, sue ’em.

“Competition is fine, cheating is not.” That’s what Elon Musk tweeted after Twitter’s lawyer’s cease and desist letter to Mark Zuckerberg went public.

Twitter accuses Meta of engaging “in systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

The problem, however, is that according to Meta, “No one on the Threads engineering team is a former Twitter employee — that’s just not a thing.” 

WIRTW #677: the “de minimus” edition

Employee: "I can't work Sundays. It's against my religion."

Employer (before yesterday's Supreme Court decision in Groff v. DeJoy): "I'm sorry, but it's an undue hardship for us to redo our entire schedule and require another employee to work in your place. Unless you can find a volunteer co-worker to cover your shift, we can't accommodate you. In that case, any absences are unexcused and will be treated as such under our attendance policy."

Employer (after yesterday's Supreme Court decision in Groff v. DeJoy): "Let's talk."

Groff examined the standard for an employer to assert an undue hardship defense to an employee's religious accommodation request under Title VII. Until yesterday's opinion, an employer could reject an employee's request for a religious reasonable accommodation request if it would impose "more than a de minimis cost." Groff, however, rejected the long-applied de minimus standard. The Supreme Court held:

Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

This is a paradigm shift for how employers must consider reasonable accommodations for employees' sincerely held religious observance or practices. Ultimately, an employer will have to evaluate, and a court may have to make a common-sense determination, whether the impact of a potential accommodation is too great for an employer to bear — something akin to a "substantial additional cost" or a "substantial expenditure." It's still a case-by-case factual determination, but it's one that now has some teeth behind it for the employee seeking a religious accommodation.

The Court went on to add to this undue hardship is not the same undue hardship test as courts apply under the ADA ("significant difficulty or expense"). Further, because much of existing EEOC guidance on Title VII religious accommodations focus the accommodation itself, and not the undue hardship test, it's likely mostly still good guidance on which employers, employees, and courts can rely. 

Still, we shouldn't downplay the significance of this decision, especially coming off the heels of a pandemic's workplace vaccine mandates that forced many employers to confront the issue of religious accommodations for the very first time. 

Employers, your job in evaluating religious accommodation requests just became that much more rigorous. The good news, however, is that even though the hardship standard is not quite the same as under the ADA, we should all at least be used to the rigors of the interactive process from years of handling myriad disability accommodations. 

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

“Loud quitting”

Quiet quitting is so 2022. According to CNBC (citing Gallup’s 2023 State of the Global Workplace Report) loud quitting is all the rage.

What is loud quitting? Employees who "take actions that directly harm the organization, undercutting its goals and opposing its leaders." Such actions include, for example, bad-mouthing their boss on LinkedIn on their way out the door or riling up co-workers before they leave.

The Gallup survey blames management for this crisis. "At some point along the way, the trust between employee and employer was severely broken," Gallup wrote. "Or the employee has been woefully mismatched to a role, causing constant crises." 

I say, "Hogwash!" 

Employer correctly fires employee for posting racist meme, court says

Rita Hall worked as a line supervisor at Kosei St. Mary's Corporation when she decided to post a meme of two juxtaposed photos on her personal Facebook page — one photo of a group of monkeys on and around a car, and a second photo of a group of Black people on and around a car. At least three of Hall's subordinates and coworkers filed complaints with KSM's human resources department about the racist meme, and the company subsequently terminated Hall because of it.

In her wrongful discharge lawsuit, the court of appeals had a lot to say about Hall's free speech rights at work, none of it good for the former employee or her lawsuit.

Can an employer disable online commenting to quell pro-union messaging?

There's a lot going on with the union organizing campaign at Creature Comforts Brewing Company. While the union (known as "BUG") continues to wait for the NLRB to schedule a representation election, BUG continues to accuse the brewery of illegal union busting. 

According to the BUG, the brewery (allegedly) illegally fired Spencer "Spicy" Britton, one of the union's biggest supporters. Moreover, the public and the brewery's employees can no longer express their opposition to the brewery's alleged union busting tactics by posting comments on Creature Comforts' Instagram posts. The brewery has disabled the ability to comment on all new posts since March 29.

I'd like to tell you that because the Instagram comment policy applies equally to everyone (non-employees and employees), there's nothing unlawful about it under the National Labor Relations Act. But with the current composition of the most pro-union NLRB in history and its equally pro-union general counsel, all bets are off. I'd have real concerns permitting a client to take this step under these or similar circumstances.

Yes, you can still fire employees for lying, even when they are seeking FMLA leave

67 employees of CSX Transportation submitted a required internal form requesting medical leave. Those requests had four key problems: 1.) each was submitted shortly after CSXT informed the employees that they would be furloughed; 2.) each was submitted by one of two chiropractors; 3.) each contained the same or substantially similar language referencing general minor musculoskeletal conditions such as sprains or muscle spasms with no individualized assessments and requiring at least eight weeks of leave; and 4.) they were all submitted within a very tight time period.

As a result, CSXT's Chief Medical Officer, Dr. Heligman, became suspicious of fraud. Following an internal investigation, which included an evidentiary hearing at which each employee could appear and testify, represented by their labor union, the company fired all 67 employees for violating its Code of Ethics and its policy against workplace dishonesty.

WIRTW #676: the “Portugal. The Vaction” edition

I've never wanted to be "that guy" who returns from vacation and says, "Let me show you my vacation photos." 

Well … Let me show you my vacation photos.

Portugal is simply magical. The people. The sights and scenery. The lifestyle. The food. The wine. All of it. This vacation had every opportunity to let me down. Covid had delayed it for more than three years. I built it up in my head as the vacation of all vacations. Not only did Portugal live up to my expectations. It exceeded it. 

So do yourself a favor and place Portugal on your short list of places to visit. And when you decide to go, let me know. I might just have a rental property to show you. (If anyone has a lead on a reasonably priced three bedroom home on Portugal's Silver Coast (the Atlantic coast between Lisbon and Porto), I'm all ears.)

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