Wednesday, April 20, 2022

Your office might be open, but the bar should remain closed


According to The Wall Street Journal, some businesses are using alcohol to entice their employees to return to the office.
As businesses work to settle employees into offices, some are pulling out the stops—literally, on kegs, casks and wine bottles—in an attempt to make workplaces seem cool. Sure, executives could simply order people to return to their cubicles, and some have, but many want their workers to come back and like it.

Tuesday, April 19, 2022

Harassment complaints don’t require a “perfect" response, just a “reasonable” one


Ronald Burns, a maintenance technician at Berry Global, was the victim of three instances of racial harassment over the span of 17 days.
  • Burns found a piece of cardboard in his locker that read, "dance monkey." He complained to HR.
In response, HR spent several days reviewing security camera footage in an attempt to discovery the perpetrator, which it could not do. The plant manager also met with the entire shift and advised that such harassment would not be tolerated. 

  • Four days later Burns found a noose hanging from the lock on his locker. He again reported the harassment, this time to his supervisor and to the company's ethics hotline.
In response, the plant manager gave Burns the weekend off with pay. Pre- and post-shift walkthroughs of the locker room were also started to seek any offensive items. HR interviewed 19 employees but could not lock down a suspect. Finally, the company adjusted the cameras to offer better coverage.

  • 13 days later, Burns found yet another piece of cardboard in his locker, but this time it read, "die n*****." He again reported it to harassment.

After reviewing more camera footage, the company narrowed its investigation to one suspect, present in the locker room prior to all three incidents. All employees were also re-interviewed, and the suspect was suspended without pay even though he could not be confirmed as the culprit. Finally, Burns was offered a transfer to a different shift, which he declined. 


Five month later, Burns found a noose attached to his toolbox. This time, instead of complaining to management he quit and filed a racial harassment lawsuit. 

At issue in Burns's lawsuit was Berry's response to his complaints — whether it had "manifest[ed] indifference or unreasonableness in light of the facts the employer knew or should have known," or whether it "tolerated or condoned the situation or that the employer knew or should have known of the alleged conduct and failed to take prompt remedial action." 

Monday, April 18, 2022

Jury awards $450,000 to employee fired over unwanted birthday party


Kevin Berling, a 10-month employee of Gravity Diagnostics, made a simple request of the manager of his office —"Please don't throw me a birthday party; I have an anxiety disorder."

What happened next spiraled into a lawsuit that lasted more than two and half years and ended late last month with a $450,000 verdict for the employee.

Friday, April 15, 2022

WIRTW #621: the “on the radio” edition


How do I know that labor unions are making raging comeback? Historically, my posts on unions, union organizing, and union avoidance would struggle on LinkedIn to break 1,000 views and would only garner a handful of likes and comments. Over the past few weeks, however, my posts on the dramatic and successful rise in union organizing have been viewed well over 100,000 times with hundreds upon hundreds of likes, comments, and shares. It's an issue that has raised passion on both sides.

How else do I know? Because my social and news feeds are full of stories about union organizing. I think I've read more stories about labor unions in the past 18 months than I did in the first two decades of my legal practice combined.

Yesterday, it was my pleasure to appear on Labor Relations Radio to discuss all of these issues. We covered the reasons for the rise in union organizing, why I'm anti-union (but pro-employee), the use of salts in the Amazon and Starbucks campaigns, and the NLRB's general counsel's Cemex brief, which calls for the NLRB to alter rules on mandatory card check recognition, the elimination of captive audience speeches, and other issues that will dramatically tilt the organizing playing field even more in favor of the unions than it already is.

You can listen here, or wherever you get your podcasts.

A huge thank you to Peter List for inviting me on his show. 

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

Thursday, April 14, 2022

Ohio enacts sweeping changes to state wage and hour laws


Beginning July 6, 2022, Ohio employers have a new set of rules under which to pay their employees. 

SB 47 revamps Ohio's wage and hour statute to correct some major differences that have historically existed between it and the federal Fair Labor Standards Act.

Wednesday, April 13, 2022

Protected concerted activity is an opportunity to engage with your employees, not to retaliate against them


"Due to the 6.8% inflation rate, all US workers are entitled to at least a 6.8% pay adjustment. We have received reports of some ABUSIVE EMPLOYERS not providing these adjustments. If you have not received such a raise, please ask your employer why your PAY WAS CUT."

"WHAT TO DO ON A BREAK TODAY: (1) Talk about your PAY. (2) Talk about your RIGHTS. (3) Begin ORGANIZING A UNION. GOOD employers are not afraid of these, but ABUSIVE ones are."

"You have a protected LEGAL RIGHT to discuss your pay with your coworkers. This should be done on a regular basis to ensure that everyone is being paid fairly. It is ILLEGAL for your employer to punish your for doing this."  

These comments, shared in the antiwork subreddit, appeared on sales receipts at an unknown and unnamed brewery.

Tuesday, April 12, 2022

“Salting” the wounds of labor organizing


One of the tactics workers used to successfully organize Amazon's Staten Island fulfillment center was the use of "salts."

"Salting" is a common organizing tactic used by labor unions. It is when union organizers apply for jobs with non-union employers for the express purpose of organizing the employer's workforce from the inside. In addition to organizing, the salts also try to inflict economic harm on the targeted employer by triggering unfair labor practice charges and resulting back pay liability. Salting is one the more underhanded methods of organizing used by labor unions.

It's devious, it's effective … and it's 100 percent legal.