WIRTW #642: the “get off our backs” edition

Can you please get off our backs? By "our," I mean management-side labor lawyers. 

Let me explain.

I just finished listening to the latest episode of the 43-15 Podcast discussing the first group of Petco employees to attempt to organize into a labor union. The hosts were all over the "union busting lawyer" Petco hired to represent it and challenge the employees' organizing. His major sin: "Counseling many companies on labor strategy, union avoidance, and responding to union backed corporate campaigns." Heavens to Betsy, a lawyer doing … wait for it … his job.

Like any other attorney, management-side labor lawyers have a job to do and an ethical obligation to represent their clients zealously. Union organizing and recognition is a decided in an election, in which a majority of employees need to choose to unionize. What are employers supposed to do, roll over and let the union walk in unimpeded? As their lawyers we are simply playing our roll in this process. That's all. Is it adversarial? Sure. Does it sometimes get heated? Of course. But management is entitled to be represented just as do the employees seeking to unionize.

Don't hate the player, hate the game. That's all I'm saying.

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

Pre-employment pregnancy testing?

I was tagged on Twitter to address this situation.

My friend did a drug test for a part time job for the local school district. When she got her results, she found out that the district also did a pregnancy test. Besides ethical issues, this seems like a legal red flag given she wasn't told this would be done.

The OP added that her friend's spouse (male) did the same screening for the same employer, but no pregnancy test.

If it looks illegal, and it smells illegal, then it's illegal. Let's examine why.

Lyfting independent contractor status

If I asked you to identify Lyft's business, how would you answer? 

"They're a transportation company," you'd say. There's no other correct answer … unless you ask Lyft. 

Lyft will tell you that it's a tech company, not a provider of transportation.

The 10th nominee for the “Worst Employer of 2022” is … the sex offender supervisor

The most disturbing case I ever handled involved a company that hired a registered sex offender as a supervisor, who then raped a female subordinate.

Today’s “Worst Employer” nominee is very much in that tragic and devastating vein.

Vice provides the details, which it confirmed with Claire, he co-workers, court records, and even Starbucks itself.

Spotting the employment law issues in “She-Hulk"

Donny Blaze was a former student of Kamar-Taj, having dropped out after failing to adhere to their strict teachings. He left, however, with a souvenir, a sling ring, which sorcerers use to open mystic portals. Blaze then uses the sling ring, along with what he learned during his time at Kamar-Taj, to spice up his otherwise very pedestrian cabaret magic act.

Wong, the Sorcerer Supreme, seeks your legal counsel to file suit against Blaze to enjoin his use of Kamar-Taj's mystic arts. 

What are the potential claims? Let's explore.

WIRTW #641: the “slim shady” edition

Guess who's back, back again…

After a semi-intentional summer break, The Norah and Dad Show — the podcast I host and produce along with my 16-year-old daughter — is back for Season 2. You find us everywhere podcasts are available, including Apple, Spotify, Google, Overcast, Amazon, Stitcher, and via our website. If you're new to the show, please make sure you go back and check out all of Season 1.

While I'm talking about Norah, she has some gigs coming up over the next several weeks: this Sunday, Sept. 11, at the Berea Arts Festival (from 2–3p); Sept. 23 at Baxter's Speakeasy in Akron supporting Chanilla and Sad Harris (8p); and September 30 at The Olde Wine Cellar (starting at 6p). All shows are free, although Baxter's does have a one-drink minimum. Please stop and say hello. 

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

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.