These 6 steps will help keep you out of sexual harassment hot water

A teenage, female restaurant employee bends over to pick something up and a male co-worker snaps a photo of her buttocks and then shares it with his coworkers. She reports the misconduct conduct to her manager and noted “that it made her feel uncomfortable.” The company investigates, and even though it does not find the photo on the co-workers, it still fires him six days later for myriad issues with his employment.

The complaining employee then sues for sexual harassment, alleging that the taking and sharing of the photo constituted a hostile work environment. The court disagreed: “Johnson alleges two isolated incidents—Shawn took a picture of her buttocks and showed it to her coworkers. Although Shawn’s conduct was rude and boorish, his actions fall well short of conduct so severe as to alter or change the terms of her working conditions.”

WIRTW #702: the “conference” edition

I don't just go to beer conferences to drink beer. I promise. I also go to speak and share my knowledge about the legal issues that impact craft breweries.

This week, I've been at the Ohio Craft Brewers Conference in Toledo. Yes, I drank some beer. But I also spoke, not once, but twice.

Yesterday, I spoke on avoiding the top 10 legal mistakes made by craft breweries, and on current industry and legal trends impacting DEI.

It was a great conference with wonderful people and networking, a lot of learning and knowledge … and, yes, some beer. 🍻

A huge thank you to Mary MacDonald and the entire Ohio Craft Brewers Association team for a fantastic event. Let's do it again in Columbus next year!

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

Hiring undocumented workers

"Illegal immigrant co-worker got fired for asking about her check." 

That's the headline on Reddit.

Here's the rest of the post: 

"I have a co-worker who doesn't speak English at all so I've always communicated with her through google translate. A week ago, she asked me if I had gotten paid yet and told me that she hasn't seen a penny of her check despite working 50 hours a week since late November. I talked to my manager about it and my manager told me that she would send the check to her later. My co-worker texted me a few days ago and told me that she was fired for being an illegal immigrant and that she won't be paid because of it."

WIRTW #701: the “last dance” edition

My daughter, Norah, has been chosen as one of 30 acts to compete in the 2024 Tri-C High School Rock Off at the Rock & Roll Hall of Fame.

Norah (who performs as norah marie) takes the Rock Hall stage on Feb. 10 as part of the second of three semifinal rounds. Four acts from each round will advance to the Final Exam on Mar. 2, where a panel of industry judges will crown the "Best Band in the Land."

This year's winner will be the last "Best Band in the Land," as Live Nation has announced that this year's High School Rock Off will be the final High School Rock Off. This news saddens me, as it's such a unique event for Cleveland and a great opportunity for the youngest members of our music community. Having attended the Rock Off for years, it's always a great time showcasing a ton of talent and great music.

The Tri-C High School Rock Off is one of biggest competitions in the country for high school rock musicians. We're so lucky to have held it for so many years. This year's prizes for the winning act include the opportunity to perform at the 2024 Rock and Roll Hall of Fame Induction Ceremony. It's a big deal.

Norah performs on Feb. 10. Tickets are digital-only and available for purchase via the Rock Hall website, here. At checkout, use the code NORAH. Each ticket includes a full Rock Hall admission during the event.

We'd love to see you there.

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

The 1st nominee for the Worst Employer of 2024 is … the S&M CEO

I've seen a lot of strange stuff in my 26-plus-year career as an attorney for employers. But this story takes the cake … and it might just run away with the title of the Worst Employer of 2024 when the votes are counted at year's end.

I present to you … the "Slave Contract."

An employee fired by software company Tradeshift recently filed a lawsuit alleging that the company's former CEO required her to sign a "Slave Contract" as a condition of her employment and then subjected her to years of sexual abuse, subjugation, and violence.

8 ways to spot a crook inside your business

Between Sept. 2021 and Oct. 2022, Lyle Bigelow, the now-former COO of 1487 Brewery, embezzled approximately $200,000 from his employer. How? He created fake employees in the brewery's payroll system and directed their illegitimate paychecks to his personal bank accounts.

Bigelow was recently sentenced to 30 months in prison and ordered to pay more than $100,000 in restitution to the brewery (the amount not covered by its insurance).

Do you know how to spot an employee who is potentially stealing from your business? Here are 8 possible warning signs that suggest possible internal theft and/or an attempt to cover it up.

Pro-employee vs. Pro-union

"You can't be pro-employee and anti-union."

"If you're pro-employee you should also be pro-union."

Each of these two themes ran through the more than 1,000 comments posted to last week's viral LinkedIn post on Costco's union organizing.

Let me be as clear as I can be. There is absolutely nothing inconsistent about an employer being both pro-employee AND anti-union.

WIRTW #700: the “Rock Off” edition

For the past 26 years, Live Nation Entertained has crowned "The Best Band in the Land" at the Tri-C High School Rock Off. This year is no exception. My daughter, Norah, will be competing on Feb. 10 at the Rock & Roll Hall of Fame in one of three semi-final rounds to determine who advances to the Final Exam on Mar. 2.

We've attended the event for years, first when Norah performed in an exhibition as part of the School of Rock Jr. Headliners, and then four years ago when her former band advanced to the Final Exam. This year, Norah will be performing as a solo artist.  

It's always an amazing night of live music. Additionally, your ticket (which I think will only cost $10) comes with a full Rock Hall admission for the night at a significant discount from its normal $35 price tag. That's what I call a win-win.

Tickets are not yet available, but I'll be sharing the link when they go on sale.

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

THIS is how you respond to a group of employees organizing and forming a labor union

Competitive salary. Excellent benefits. Great support from management. Collaborative environment. Those are a few of the glowing terms reviewers use to describe Costco on Glassdoor. They are also what help the warehouse club earn a regular spot on Glassdoor's "Top 100 Places to Work" annual report.

Why, then, did a group of Costco workers at one of its stores "overwhelmingly" vote to unionize, making it the Teamsters' first organizing victory at the big-box wholesale retailer in more than 20 years?

Discussing a couple of pay deductions for service-industry employees

Consider the following two policies, which restaurants and bars have implemented to save a few nickels against their tight margins:  

“Effective Jan. 1, we will begin implementing a tip refund for credit card processing fees for all gratuities left on a customer’s credit card; 2.5% will be deducted from your final check-out for each such gratuity paid.” 

 -and- 

“The full value of the check from which a patron flees the facility (‘dines and dashes’) will be deducted from the server’s paycheck.”  

Each of these policies is 100% legal under federal wage and hour laws. (Check your state laws, however, which may differ.) 

’Twas the Employment Law Night Before Christmas (2023 edition)

In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2023.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone on January 2, 2024, with new content, including a fresh batch of Worst Employer nominees, to kick off the new year.

Announcing 2023’s Worst Employer

The votes have been counted. The WINNER of The Worst Employer of 2023 is...

🏆 The Child Labor Abuser 🏆

This is what it looks like to kick a business while it’s down

Last week, Corky & Lenny's, a deli that has been a local institution for the past 67 years, closed its doors. The owners cited staffing shortages and burnout as the primary causes.

Just three days later, one of its former employees filed a collective action lawsuit under the Fair Labor Standards Act for unpaid wages against the business and its owners. The named plaintiff, who worked as a server at the restaurant, claims that the business automatically deducted 30 minutes per shift for lunch for all non-exempt employees regardless of whether they took their lunch breaks or worked through them. She further claims that the business no longer had any method for employees to report days on which they did not take a lunch break, and otherwise ignored complaints of unpaid wages.

Denying gender-affirming health care to transgender employees is unlawful discrimination

Morgan Mesi, a transgender man, has just sued his former employer, Tenzing Wine & Spirits, along with his labor union and group health plan, claiming that they discriminated against him because of his sex by denying medical insurance coverage for gender-affirming care.

To me, Bostock v. Clayton Cty. clearly resolves this issue. In Bostock, SCOTUS held that Title VII's prohibition of sex discrimination also prohibits discrimination because of an employee's sexual orientation or gender identity. Indeed, Bostock could not have been clearer regarding the treatment of transgender employees: "[a]n individual's … transgender status is not relevant to employment decisions."

WIRTW #699: the “Mackrell” edition

One of my primary business development goals for 2023 was for Wickens Herzer Panza to join a law firm network.

Mission accomplished!

WHP is the new Ohio member firm for Mackrell International. MI is a strongly connected, vetted, and trusted network of more than 4,500 lawyers across 90+ independent law firms and 170+ offices worldwide. Instantly, WHP transforms from a stalwart mid-size local firm to an international conglomerate with access to thousands of trusted lawyers across the country and around the globe.

We at WHP couldn't be more excited for what this new relationship means to us and our clients. Becoming part of the MI family and expanding our platform outside of our state to a national and international scale significantly adds to our capabilities and our ability to service our clients.

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

Coincidence ≠ causation

An employer terminates a group of 14 employees within six weeks after learning that they were discussing unionizing.

Despite the timing of the mass termination of these employees, the 8th Circuit — in Strategic Technology Institute v. NLRB — reversed and concluded that anti-union animus did not motivate the terminations. 

WIRTW #698: the “heads will roll” edition

It's not every day that John Oliver happens to feature one of your Worst Employer nominees the very same week that you open the polls to vote for said Worst Employer. 

The video:

* The John Oliver story is not an endorsement of this employer as the Worst Employer of 2023. 

If you want to have your say on who should win, make sure to vote prior to Wed., 12/13 at 11:59 pm eastern time.

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

A lesson in how NOT to testify

Congresswoman Elise Stefanik: Ms. Magill at Penn, does calling for the genocide of Jews violate Penn's rules or code of conduct? Yes or no?

UPenn President Liz Magill: If the speech turns into conduct, it can be harassment. Yes.

Stefanik: I am asking, specifically calling for the genocide of Jews, does that constitute bullying or harassment?

Magill: If it is directed, and severe, pervasive, it is harassment.

Stefanik: So the answer is yes.

Magill: It is a context dependent decision, Congresswoman.

Stefanik: It's a context dependent decision. That's your testimony today, calling for the genocide of Jews is depending upon the context, that is not bullying or harassment. This is the easiest question to answer. Yes, Ms. Magill. So is your testimony that you will not answer yes? Yes or no?

Magill: If the speech becomes conduct. It can be harassment, yes.

Stefanik: Conduct meaning committing the act of genocide. The speech is not harassment. This is unacceptable. Ms. Magill, I'm gonna give you one more opportunity for the world to see your answer. Does calling for the genocide of Jews violate Penn's Code of Conduct when it comes to bullying and harassment? Yes or no?

Magill: It can be harassment.

Stefanik: The answer is yes.

It’s illegal for gay people to discriminate against straight people … just not on these facts in this case

There is no such thing as "reverse" discrimination. Discrimination is discrimination, whether the victim is, for example, Black or white, female or male, gay or straight. When the employee claiming discrimination is in the majority, however, in the 6th Circuit they must not only show disparate treatment, but also must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Which brings us to the story of Marlean Ames, a straight woman who sued the Ohio Department of Youth Services for sex discrimination under Title VII claiming that her lesbian supervisor discriminated against her because of her sexual orientation. Ames claimed that OHYS passed her over for a promotion, demoted her, and promoted a gay man to her former position.

VOTE for the Worst Employer of 2023

It's the most wonderful time of the year. I've made my list. I've checked it twice. Now it's time to find out who's naughtiest and not very nice. It's voting time for The Worst Employer of 2023.

I've culled my list of 10 nominees down to the worst 7 as finalists.