How broad is potential liability for retaliation? THIS broad.

In 2016, Tom Pettay sued his former employer, DeVry University, for age discrimination. The trial court dismissed Pettay's lawsuit on summary judgment. Following that dismissal, the employer filed a motion asking the trial court to award them $4,004.39 for the cost of deposition transcripts used in support of the summary judgment motion. While Pettay's appeal of the court's award of costs was pending, the Ohio Supreme Court held that a prevailing party cannot recover the costs of deposition transcripts. 

As a result, Pettay again sued DeVry (or, more accurately, its successor in interest, Cogswell Education), claiming that it retaliated against him by pursuing a frivolous motion for the costs of the deposition transcripts. 

Like herpes, the NLRB’s efforts to liberalize its joint employer standard just won’t go away

Joint employment under the NLRA has a tortured history over the past seven years. 

Yesterday, the NLRB released a Notice of Proposed Rulemaking (NPRM) to rewrite the standard for determining joint-employer status under the National Labor Relations Act.

Under the current joint employer standard — to which the NLRB adhered until the Browning-Ferris decision in Aug. 2015, and to which it formally reverted in Apr. 2020 — one employer is only a joint employer with another employer if it possesses and exercises "substantial direct and immediate control" over the terms and conditions of employment of another employer's employees.

Joint employment matters … a lot … because if you're a joint employer over the employees of another employer you are jointly and severally liable for the legal wrongs committed by the primary employer. Under the NLRA you also would share collective bargaining responsibility.

WIRTW #640: the “Wickens Workshop” edition

When you take over a practice group and are tasked with building it, you naturally have to think of ways to market and grow it. Presenting semi-regular seminars for clients, prospective clients, and referral sources was low hanging fruit. I can talk about employment law all day long. Just give me a topic, a microphone, and an audience, wind me up, and let me go to work. Thankfully, my cohorts in our Employment & Labor Practice Group feel the same way. 

Thus, Wickens Workshops were born. (Full credit to Matt Danese for the alliterative branding.) Our next event, discussing employee leave of absence issues, will take place on Oct. 20 from 8–10 am.

While imitation is always the sincerest form of flattery, sharing this idea with my co-workers is hardly imitation. It's just smart business. Thus, the Wickens Workshops branding has expanded to include our Business Restructuring & Bankruptcy and Intellectual Property practice groups, which will hold events on the mornings of Nov. 15 and Jan. 18, 2023, respectively. We now have a full-blown series of panel discussions covering a variety of legal areas and topics. 

I hope you can join us. Stay tuned for registration information for each of these events.

Also, if you'd like to hear me speak before our Oct. 20th Workshop, tune in to Lunch Conversations with Randy & Teddy on Wednesday, Sept. 7, from noon to 1 pm, when I'll be discussing all things labor and employment law.

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

Checking the pulse of the American worker on labor unions as we enter Labor Day Weekend

The following stats should be eye-opening for any business owner, CEO, or board of directors.

• 71 percent of Americans "approve" of labor unions, the highest reported approval rating since 1965.
• 70 percent of non-union employees say that they would consider joining a union, up 141% in just three years.
• Unions win approximately 75 percent of all representation elections.

What does all of these stats mean? If a union organizer starts talking to your employees about unionizing, the odds are high that your business will end up unionized. 

Pizza shop closure is a teachable lesson on union avoidance

We are truly heartbroken to announce that we've made the difficult decision to permanently close both Knead Slice Shop and Knead Market effective immediately (August 23, 2022), regardless of the outcome or the occurrence of the requested union election.

We respect the right of workers to organize under the National Labor Relations Act or other appropriate laws. We hope our workers will recognize our related right as an employer, especially a small employer, during these extremely difficult operational times, to close our entire business operation.

We continue to wish our employees well. 

That's what a pizza shop posted to its Instagram last week, announcing its decision to shutter all of its operations, permanently.

NLRB re-writes law on employees displaying union logos at work

Tesla's General Assembly plant maintained the following dress code: "It is mandatory that all Production Associates and Leads wear the assigned team wear." For production associates, "team wear" consists of a black cotton shirt with the Tesla's logo and black cotton pants with no buttons, rivets, or exposed zippers, all which Tesla provides.

In the Spring of 2017, however, certain production associates started wearing black t-shirts with the phrase, "Driving a Fair Future at Tesla," along with the logo for the United Auto Workers.

Tesla banned the UAW shirts under its "Team Wear" policy, claiming that the ban limited the risk of alternative clothing damaging vehicles on the production line and made it easier to keep track of employees on the shop floor.

In a split 3-2 decision, the NLRB held that Tesla unlawfully prohibited its employees from wearing shirts with the UAW's logo. 

The 9th nominee for the “Worst Employer of 2022” is … the active shooter

“This is it. I’m done.”

That’s how one elderly employee described to police her recent experience in an active shooter drill conducted by her employer, Catholic Charities of Omaha, that went as planned but also went very, VERY wrong.

The employer hired John Channels to stage the exercise. It did not tell its employees: (1) that the drill was planned or happening; (2) that Channels would be using a real assault rifle loaded with blanks; (3) or that Channels would stage victims (actors covered in fake blood) around the building for added realism. It also failed to inform the local authorities of the drill, who responded as if it was a real and legitimate active shooter situation.