A thank you and a mission statement

Tomorrow, I was to receive my award from the Cleveland-area chapter of the National Association of Social Workers as its Public Citizen of the Year. Sadly, but understandably, coronavirus caused the event to be postponed. Since I will not have the opportunity to deliver my remarks (and I’m not sure when I will), I’m sharing them here.

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6th Circuit gives employers relief on the evidence employees must present to prove off-the-clock work

The difficulty in defending certain wage-and-hour cases is that employers are often asked to prove a negative. “I worked __ number of hours of overtime,” says the plaintiff employee. “Prove that I didn’t.” If the hours are for unclocked work, the employer often lacks documentation to refute the employee’s story. Which, in turn, leads to a case of "I worked / no you didn't." That, in turn, creates a jury question, the risk of a trial, and a settlement (since very few employers want to risk paying the plaintiff’s attorneys’ fees if the employee wins).

In Viet v. Le, the 6th Circuit Court of Appeals provides employers much needed relief from these extorting lawsuits.

Coronavirus resource update 🦠😷

As Ohio recorded its first three official coronavirus cases, I thought now is as good a time as any to share some COVID-19 resources I recently prepared, participated in, or will be participating in.

First, I recorded an episode of the SpheraNOW podcast where I discuss the risks and best practices for employers during this outbreak.

Is an employee entitled to FMLA leave to care for the children of a family member with coronavirus?

Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.

The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).

Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”

WIRTW #590 (the “win some, lose some” edition)

Life is often about competition. For example, I litigate for a living. Trials have winners and losers. We also compete for jobs, for college admissions, and for sports titles. And competition requires a winner and some losers.

Some things, however, we do just for the experience, even if that experience is built around competition.

Last weekend, my daughter’s band, Fake ID, competed in the finals of the Tri-C High School Rock Off. Even though they did not win the competition, they won the event. They played three songs (including two of their own originals) on stage at the Rock & Roll Hall of Fame in front of more than a thousand people. They earned a lot of new fans. They befriended other bands with whom they will be able to plan future gigs. As a finalist, they got to record a song in an amazing recording studio at Tri-C (stay tuned; their first single is coming soon, and I’ll be asking all of you to pre-save it on Spotify).

Before we dropped Norah off at the Rock Hall for the pre-event activities, I told her to have fun and play a great set, and that nothing else matters. She understood, and if you ask her she will tell it was mission accomplished. 

Here’s what I read this week.

Accidents will happen: “Not every mistake amounts to actionable employment discrimination”

Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

What “Sexy Vixen Vinyl” teaches us about porn at work

If you’re Fox News reporter Brit Hume, you have a lot of explaining to do. Yesterday, the venerable journalist carelessly tweeted out his internet exploration of “Sexy Vixen Vinyl.”