Restaurant learns the hard way what an illegal tip pool looks like

Hard Eight BBQ says it misunderstood its obligations under the Fair Labor Standards Act by paying managers a share of tips earned by servers across the restaurant's five locations. As a result, following a Department of Labor investigation it reached a settlement with its managers totaling $867,572. 

Matt Perry, COO of Hard Eight BBQ, told 5 NBCDFW that "managers were part of the tip pool at their five restaurants because they do the same jobs as other hourly employees on any given shift and that because of that they felt like managers should also receive a small portion of the tip share."

Mask mandates might be gone, but maskual harassment isn’t

Workplaces, state and local governments, and the CDC have relegated mask mandates to the dustbin of Covid history. But just because people are no longer required to wear masks anywhere doesn't mean that some people aren't choosing to do so on their own. The end of mask mandates, however, has not ended the culture wars that have surrounded mask for the past two-plus years.

According to a recent poll by The Associated Press-NORC Center for Public Affairs Research, 56% of Americans still favor mask mandates on planes, trains, and public transportation, 49% for workers who interact with the public in restaurants and other places, and also 49% for crowded public events. (My own poll on LinkedIn revealed a smaller 36% still in favor of mask mandates on planes and public transportation.)

That leaves a large swath of America strongly entrenched against masks. And some are still expressing their opposition in less than constructive means.

WIRTW #622: the “wings” edition

Ask anyone from Philadelphia (including me) about the city's best cheesesteak, and the names you will not hear mentioned are Pat's (its inventor) or Geno's. Yes, they famously hold court at the intersection of 9th and Passyunk in South Philly. They might be Philly's most famous cheesesteaks, but they are not the best (a title which, in my humble opinion, belongs to Tony Luke's … but that's a story for another day).

Does the same hold true for buffalo wings? The eponymous chicken wing was invented at the Anchor Bar in Buffalo, New York. During her choir trip last weekend, Norah had the opportunity to visit the Anchor Bar. No, she didn't order wings for lunch, but she did sample one. What did she think?

You can hear all about the rest of Norah's choir trip on the most recent episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, Google Podcasts, or wherever you get your podcasts.

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

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.

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." 

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.

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.