Apple takes a bite of the NLRB in 5th Circuit ruling

In the workplace, not all questions are coercive and not all policy enforcements are discriminatory.
Case in point: Apple v. NLRB, in which the 5th Circuit just handed the tech giant a full reversal, rejecting findings by the Board that the company violated the NLRA by:

1. Coercively interrogating an employee about union activity; and

2. Removing union flyers from a breakroom table.

Let's unpack why Apple won, and what it means for employers navigating union-organizing campaigns.

Yes, you can be fired for what you say outside of work… especially when it's hateful.

In Darlingh v. Maddaleni, the Seventh Circuit just upheld the firing of a school counselor who gave a profanity-laced anti-trans tirade at a public rally. She promised "not a single" student under her watch would "ever, ever transition," and made sure to identify herself as a Milwaukee Public Schools employee while doing it. 

She sued, claiming the school district violated her First Amendment rights by terminating her. The 7th Circuit disagreed.

The 7th nominee for The Worst Employer of 2025 is … The Sadistic Chef

A jury just awarded $3.15 million to 22-year-old Andrew DeBellis—a sous chef who, over a brutal 2.5-month stretch, was punched, slapped, kicked, and emotionally destroyed inside the kitchen of fine-dining restaurant Margotto Hawaii.

Not by a rogue coworker.
Not in a moment of heat.
But daily.
By his executive chef—and with full knowledge of the owner.

The details are appalling. 

Title VII requires harm; not just hate

This week, America First Legal, a right-wing conservative organization founded by Stephen Miller, fired off a letter to the EEOC accusing the Los Angeles Dodgers and Guggenheim Partners of violating Title VII because of their publicly commitment to workplace diversity, equity, and inclusion.

But there's the legal twist: AFL didn't name a single person who was denied a job, demoted, fired, or otherwise harmed. Nor did it claim any injury to itself. 

The "Restoring Biological Truth to the Workplace Act" isn't about truth, it's about protecting bigotry

It's called the Restoring Biological Truth to the Workplace Act.

But let's be honest: it's just a license to discriminate.

Senator Jim Banks' recently introduced bill isn't about truth. It's about control. And cruelty. It would allow employees to misgender their transgender colleagues with impunity and prohibit employers from enforcing any workplace policies that require respect for a person's gender identity.

You want to avoid a labor union in your business? Then don't do this.

Two pediatricians at Cleveland's University Hospitals used an internal physician directory to contact colleagues about forming a union. In response, they say that UH disciplined them for trying to unionize. They've filed unfair labor practice charges with the NLRB.

Section 7 of the National Labor Relations Act protects employees' rights to engage in concerted activity—including organizing a union and discussing it with co-workers. That protection applies whether you're a warehouse worker or a pediatric subspecialist.

WIRTW #764: the 'substack' edition

Introducing Authoritarian Alarm: 

A New Home for a Critical Conversation

For the past 18+ years, I've written about the intersection of law, policy, and the American workplace. But more and more, the news I feel compelled to cover—and the commentary I'm driven to write—has expanded far beyond employment law and HR drama.

Because the truth is, something much bigger is happening in this country.

America today barely resembles the nation it claims to be. In our institutions, our politics, and even our public discourse, we're beginning to mirror the authoritarianism we've spent the last 249 years claiming to oppose. We're becoming what the Founding Fathers created this country to resist.

So I've launched something new: Authoritarian Alarm—a Substack newsletter dedicated to tracking America’s quickening slide into authoritarianism. My first post is now available: We've become everything we've fought against for 249 years.

If you've valued my perspective on these issues before, I hope you'll join me there. Subscribe, share, and help me sound the alarm.

Because silence is complicity.
And democracy doesn't defend itself.

—

👉 Subscribe now for free to Authoritarian Alarm: https://jonhyman.substack.com

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

Without HR, you're not running a business. You're running a liability factory.

"I want to be the first company without HR."

That's the viral line from Jennifer Sey, who founded XX-XY Athletics in March 2024. She thinks Human Resources is just the "social-justice police." According to her, they are nothing more than a department of hall monitors: "They produce nothing. They monitor our words. They tell us what we can and cannot say. They inhibit creativity. It's bad for business."

Let's clear this up:
HR is not the problem.
HR is not your censor.
HR is not some DEI-driven thought police force trying to ruin your fun.

PIPs are performance improvement plans, not employee termination plans

The point of a performance improvement plan isn't to fire someone, it's to help them improve. It's right there is the name. But too often, PIPs aren't about performance or improvement.

For example, in Murphy v. Caterpillar Inc., the 7th Circuit just reversed summary judgment on the employee's age discrimination claim, and the court's reasoning serves as a stern warning to any employer using PIPs as a shortcut to termination.

Here's what Caterpillar got wrong about the PIP it delivered to Brian Murphy, a 58-year-old engineer:

I want my records back, records back, records back

When you destroy the evidence that could justify a termination, don’t be surprised when a court refuses to take your side. That's the message from the 6th Circuit's recent decision in Kean v. Brinker International, Inc., where a 59-year-old general manager of a Chili's, owned and operated by Brinker International, was fired despite running one of the most successful stores in his market.

Brinker claimed he was let go for not "living the Chili's way"—an amorphous explanation about bad "culture." Instead, Kean claimed age discrimination, supported by his stellar performance records and his post-firing replacement by someone 26 years his junior.

Brinker, however, could not support any its reasons for Kean's termination because it had destroyed all of the documents related to the termination.

WIRTW #763: the 'shiny and new' edition

Our new website is live!

I am excited to share that Wickens Herzer Panza has officially launched a completely redesigned website.

Our goal was simple: make it faster and easier to find our insights, resources, and people—while showcasing our depth and agility.

Our new site features a clean, modern design, along with refreshed and expanded content:

• Attorney Bios – Experience, focus areas, fun facts, and direct contact details.

• Practice Area & Industry Pages – Plain-language overviews of how we solve problems for businesses like yours.

• News & Alerts – Timely articles, case analyses, and thought leadership geared toward business owners and entrepreneurs.

• Firm Insights – Events, community involvement, and the culture that drives our client service.

Our refreshed branding—Big Firm Ability; Small Firm Agility—features prominently on the new home page. This isn't marketing rhetoric; it's who we are:

• Big Firm Ability – Seasoned lawyers, multi-disciplinary teams, and the bench strength to handle sophisticated transactions, complex litigation, and strategic planning.

• Small Firm Agility – Direct access to decision-makers, responsive service, and customized solutions delivered at the pace a business demands.

Massive shoutout to PaperStreet Web Design for knocking our new website out of the park!

Check out the new WickensLaw.com and let me know what you think. If you've got questions about how we can help you or your business, just grab my contact info right from the site.

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

🚨 SCOTUS refused to extend Bostock—but it also didn't gut it. That matters, a lot.

Yesterday, in U.S. v. Skrmetti, the Supreme Court held that states can constitutionally prohibit puberty blockers and hormone therapy for transgender teenagers, rejecting a Equal Protection challenge to the law. It's a dangerous decision. Because of the votes of six Supreme Court justices, many children will suffer and some will even die.

The Court also refused to extend Bostock v. Clayton County, which held that Title VII protects LGBTQ+ employees from workplace discrimination "because of sex."

Yet, there is hope from this opinion. The Court could have used Skrmetti to start walking back Bostock. It didn't. In fact, it went out of its way to distinguish Bostock without undermining its holding.

FIFA gets a red card for its missing anti-discrimination stance

FIFA says it has a zero-tolerance policy against racism and discrimination.

But during this year's inaugural Club World Cup—in the United States of all places—that commitment has gone missing. No "No Racism" signage. No "No Discrimination" videos. No announcements. No armbands. No social media messaging. Just silence. (And a Dance Cam encouraging people to "Be Active.")

Compare that to past FIFA tournaments, where anti-racism and inclusion messages were projected on jumbotrons, splashed across LED boards, and worn on armbands—from "Unite for Gender Equality" to "Unite for Inclusion." Now? Nothing.

FIFA hasn't explained why. But the silence speaks volumes.

When immigration policy change overnight…

What's an employer supposed to do when immigration policy shifts overnight?

That's the question employers across the country are now facing. More than 500,000 immigrant workers—who entered the U.S. legally under a humanitarian parole program—were recently told to leave their jobs and “self-deport” after the Department of Homeland Security abruptly ended the program.

The headlines are emotional. The legal issues are complex.

Generally, if an employee has a properly completed I-9 form, the employer is not liable for hiring someone who later turns out to be unauthorized. As long as the documents provided at the time of hire reasonably appear genuine and relate to the employee, you're in the clear. That's exactly how the system is meant to work.

This situation, however, is different. In this case, the government is notifying employers that certain employees' immigration status has changed—and that they are no longer authorized to remain in the U.S. Still, even under these circumstances, telling an employee to "self-deport" carries legal risk.

A dog of a workplace lesson

Last weekend, I got bit by the doggie mayor of Boston's Seaport.

His name is Bennett. He's a 9-month-old golden retriever. And while visiting the area on a family vacation, I met the young mayor in a beer garden.

He was adorable. Charismatic. Clearly popular. And then—he chomped down on my arm.

It was classic puppy behavior—playful, harmless in intent, but still… teeth on skin.

What stood out most wasn't the bite. It was his "parents"—sitting nearby, watching it happen, saying absolutely nothing.

WIRTW #762: the 'cheers' edition

🚨 BREAKING: The death of craft beer has been greatly exaggerated.

According to a new 2024 economic impact study from the Ohio Craft Brewers Association, my state's craft brewing industry is very much alive and pouring.

📊 Consider this:

• $1.29 billion in economic output (up from $1.22 billion in 2022).
• 12,255 jobs supporting 8,095 households (up from around 11,500 jobs in 2022).
• $427.3 million in labor income created.
• Nearly $230 million paid in state and federal taxes (identical to 2022).
• 46 new breweries opened in 2024—with 53 more already in planning (bringing Ohio’s total to 442, up from 420 in 2022, 357 in 2020, and 300 in 2018).

That's not a dying industry. That's a growth industry.

But let's not sugarcoat it: challenges remain. Younger generations are drinking less beer. Tastes are shifting toward spirits, RTDs, non-alcoholic options, and cannabis. And tariffs on brewing equipment and ingredients continue to threaten and squeeze margins. It's not easy out there—but Ohio's brewers are adapting, evolving, and still finding ways to grow.

Moreover, this isn't just about pints. Ohio breweries are revitalizing neighborhoods, anchoring downtowns, hosting community events, and donating millions to charity.

So the next time someone says "craft beer is over," raise a pint and say: Not in Ohio.

🍻 Cheers to great beer and better data.

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

The 6th nominee for The Worst Employer of 2025 is … The Terrible Trafficker

HotHead Grabba is now officially in the hot seat.

A 74-count indictment charges owner Hunter Segree and two managers with operating a tobacco-processing sweatshop and exploiting its immigrant workforce.

2.5 million reasons to avoid age discrimination

"Younger and hungrier."

That was the phrase executives at CrossCountry Mortgage allegedly used to describe the kind of people they wanted in their accounting department.

The only problem? They already had Cheryl Shephard, a senior accountant who wasn't "younger." Shephard was 65. And a CPA. No disciplinary record. No PIP. Just years of reliable, quality work with strong performance reviews

Then, out of the blue, CrossCounty Mortage fired her in a so-called reduction in force.

Do you know the difference between legal and illegal interview questions?

You're hiring. Great.
You're asking illegal interview questions. Not so great.

Most employers don't mean to cross the line in interviews. But intent doesn't matter when the EEOC or a process server comes knocking. The law draws a pretty clear line around certain topics. And the moment you ask the wrong question, you've handed a candidate "Exhibit A" in their future discrimination claim.

The 5th nominee for The Worst Employer of 2025 is … The Predator Manager

The EEOC has filed a lawsuit against Franchise Management LLC, the operator of over 20 Subway locations in the Beehive State, alleging that it failed to prevent the sexual harassment and assault of a 16-year-old male employee by a district manager.

The manager, Justin Nielson, reportedly made inappropriate sexual comments, asked the employee for photos of himself in his underwear, sent similar photos of his own, and ultimately assaulted the teenager during work hours.