Tuesday, May 28, 2019

What does a valid jury waiver look like?


Earlier this year, the Senate took up the Forced Arbitration Injustice Repeal Act. It would, among other things, prohibit employers from requiring employees, as a condition of employment, to sign agreements submitting employment and civil rights claims to arbitration in lieu of filing in court. According to Vox.com, this legislation has some initial bipartisan support, and has some legit traction to perhaps become law.

I am on record as not being a fan of arbitration for employment disputes. I do not believe they are any less expensive or time consuming that in-court litigation. In stead, I've previously argued for tools such as contractually shortened statutes of limitations and jury waivers as tools employers can to limit risk instead of arbitration agreements.

Friday, May 24, 2019

WIRTW #554 (the “triumph” edition)


How do we raise our girls to become confident women? It’s a question I think about a lot as a dad to an almost teenage girl.

πŸ™‹‍♀️ We encourage them to pursue their passions.
πŸ™‹‍♀️ We get them working collaboratively with other girls.
πŸ™‹‍♀️ We put them into positions to gain leadership skills.
πŸ™‹‍♀️ We praise their successes.

While I love School of Rock for both of my kids, this is why I especially love it for my daughter.

To see an almost 13-year-old (everyone wish Norah a Happy Birth Day for Monday) command a stage with skill and passion, and with the love, respect, and admiration of her peers, older and younger, fills this dad with a ton of pride and joy.

And it tells me that she’ll be just fine as an adult, whether her journey is through music or otherwise.

So enjoy Norah doing her thing last weekend (along with Donovan’s fly dance moves), taking the lead on Triumph by the Screaming Females.




As for Norah’s own band, Fake ID, you have two chances to see them live over the next few weeks.

  • June 1 @ Ohio Bike Week, in Sandusky. They’ll be on the Scott Gast Memorial Stage, at Columbus Ave. and Water St., from 3:30 - 5 pm. 
  • June 15 @ Crocker Park, in Westlake. They’ll be rocking the square in front of Regal Cinemas from 5:30 - 7 pm.

Both shows are open to the public and free. Keep an eye out for the merch table to grab your official Fake ID t-shirt.

Here’s what I read this week:

Thursday, May 23, 2019

Defining (and defending) my role as an attorney: more on the employment of registered sex offenders


On Tuesday, I posted something that I did not imagine would be all that controversial, You just found out you hired a sex offender. Now what? Boy howdy was I wrong.

Over at Workforce.com (which syndicates my blog daily), the post had received (so far) 117 (mostly) alarmingly negative comments.

Wednesday, May 22, 2019

In harassment cases, the context of profanities matters (but only sometimes)


Why is everyone suddenly using the C-word,” asks Stan Carey in The Guardian? He blames Game of Thrones (video very NSFW—you’ve been warned).

Assuming Stan’s correct, and more people are becoming more comfortable openly using this generally considered highly offensive and taboo word, how should you react if your employees start using it among each other? Swiftly and decisively, that’s how.

Tuesday, May 21, 2019

You just found out you hired a sex offender. Now what?


A reader sent me the following question.

I worked for a grocery store. Can a child molester be employed by the grocery store? I reported it to the manager, and showed proof and nothing was done about it.

There’s a lot going on here. What does the law require an employer to do (if anything) under these circumstances? And what should an employer do when it discovers it is employing a sex offender?

Monday, May 20, 2019

The 11th nominee for the “worst employer of 2019” is … the πŸ’©y supervisor


From the legaladvice subreddit:

So background, I have IBS and sometimes have to go the bathroom multiple times per work day. My supervisor doesn’t believe I am legitimately using the bathroom, so he said today at the end of the day today if I don’t send him a picture or otherwise prove that I used the bathroom, I will lose 15 minutes of paid time. What sort of recourse do I have?

Friday, May 17, 2019

WIRTW #553 (the “669” edition)


Jack Ma, the founder of Alibaba (China’s answer to Amazon), claims that he has cracked the formula to a happy and productive workforce.

His answer? 669.

What does that mean? According to The Telegraph

“We want 669 in life. What is 669? Six times in six days; the emphasis is on nine,” he said at a company gathering, referring to sex, and using a play on words, as the word “nine” in Mandarin is a homophone for the word “long.”

He wants his employees to have long sex six times every six days. 

And you thought American employers had issues?

Here’s what else I read this week.

Thursday, May 16, 2019

Abortion discrimination = pregnancy discrimination


Thanks to, among other states, Alabama, Georgia, and Ohio (sorry about that last one), the debate over abortion is raging. Suppose you are staunchly anti-abortion, and you learn that one of your employees is considering, or has had, an abortion. Can you fire her?

Thus far, three courts have looked at this issue, and all three courts have all reached the same conclusion.

No.

Wednesday, May 15, 2019

No, the feds should not ban noncompetes because of #MeToo


A recent op-ed in the USAToday argues that the federal government should outlaw noncompete agreements because they trap workers in abusive workplaces.

Since women who complain about harassment face retaliation and even termination, often the only way to escape it is to find a new job. Yet for many women, continuing their careers with a new employer turns out to be impossible. 
That is because of noncomplete clauses. After they have resigned or even been fired, workers bound by noncompetes cannot accept employment in the same line of work or industry as their former employer for a specified period in a certain city, state or even the entire country. Nearly 30 million working people, including more than 12 million women, are locked into their jobs because of noncompete clauses.…
By depriving them of outside employment opportunities, noncompetes lock victims of harassment into abusive environments. 

I could not disagree more. Noncompete clauses are not responsible for trapping sexual harassment victims in abusive workplaces.

Tuesday, May 14, 2019

Ohio lawmakers seek to expand the protections of the Ohio Whistleblower Act


Laws protecting whistle-blowers from retaliation have a long and storied history in the annals of American law. Indeed, according to The Personal Toll of Whistleblowing, recently published in The New Yorker*, these laws date back 241 years to the American Revolution and the Second Continental Congress:

The first documented whistle-blowing case in the United States took place in 1777, not long after the signing of the Declaration of Independence, when a group of naval officers, including Samuel Shaw and Richard Marven, witnessed their commanding officer torturing British prisoners of war. When they reported the misconduct to Congress, the commanding officer charged Shaw and Marven with libel, and both men were jailed. The following year, Congress passed a law protecting whistle-blowers, and Shaw and Marven were acquitted by a jury.

Monday, May 13, 2019

Crasslighting — Oops, #NotYou is NEVER a defense to #MeToo


Gaslighting — the manipulation of someone by psychological means to question their own sanity. It’s a term you’ve likely heard of.

But, have you heard of crasslighting? Me neither, until I read Did he just harass you or are you imagining it? You might be a victim of ‘crasslighting.’ in The Washington Post.

Friday, May 10, 2019

WIRTW #552 (the “comment of the week” edition)


Big thanks to Kristi Birkeland for the comment of the week, in response to yesterday's 12th blogiversary post.


If I ever I get the t-shirts and coffee mugs printed with this tagline, Kristi gets the first one.

Thursday, May 9, 2019

Happy 12th Anniversary to the Ohio Employer Law Blog


Twelve years ago today I launched the Ohio Employer Law Blog.

On May 9, 2007, I published, The Song Remains the Same — Has Burlington Northern Really Changed the Landscape of Retaliation Claims? Not my finest work, but everyone’s gotta start somewhere.

In the dozen years since, I’ve published 3,135(!) posts, which you have read millions of times. It’s truly astounding to me, and I thank all of you who have read, clicked, shared, commented, and connected with me over the years. The absolute best part of this endeavor is the relationships I’ve built and friendships I’ve made.

Wednesday, May 8, 2019

Workplace civility shouldn’t be something we have to legislate


Workplace harassment isn’t illegal unless it is harassment because of some protected characteristic (sex, race, age, religion, national origin, disability, or any other class protected by law). Generalized workplace bullying or other mistreatment is not illegal unless it falls into one of those categories. Indeed, as the Supreme Court has repeatedly reminded us, workplace discrimination laws are not “a general civility code.”

Tuesday, May 7, 2019

Lessons from Game of Thrones on an employee’s duty of loyalty #spoileralert


If you haven’t yet watched this week’s episode of Game of Thrones, consider yourself warned. There are spoilers below. Turn back now if you don’t want to be spoiled.

Monday, May 6, 2019

Your employees do not understand their (lack of) free speech rights


Congress shall make no law … abridging the freedom of speech….

So reads the 1st Amendment of the Constitution.

Take note that it does not say, “You have absolute freedom of speech in all things at all times.” It only prohibits government-imposed restrictions on speech.

Yet, just last week, President Trump tweeted the following:

I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America — and we have what’s known as FREEDOM OF SPEECH! We are monitoring and watching, closely!!

I promise you that if the President of the United States does not understand how the 1st Amendment works, your employees don’t understand it either.

Friday, May 3, 2019

WIRTW #551 (the “he went for the head” edition)


#DontSpoilTheEndGame

Really! DON’T SPOIL ENDGAME.

A Friendswood, Texas, Domino’s employee learned this lesson the hard way. He was cited by police after he assaulted a co-worker for revealing an Avengers: Endgame spoiler.

According to ABC13, no one at Domino’s wanted to talk about the incident, and the employee did not respond to inquiries.


Here’s what I read this week:

Thursday, May 2, 2019

A cautionary tale on why we background check employees


A cautionary tale on why employers should conduct thorough background checks on employers.

In late 2013, Kristl Thompson, Ashley Raby, and Corbie Leslie filed a lawsuit against The Scott Fetzer Company (doing business as “The Kirby Company”), Crantz Development, and John Fields. The women claimed Fields had sexually assaulted them (including verbal abuse and harassment, inappropriate touching, forced sexual acts, and rape) on numerous occasions between May 2012 and January 2013. A number of these allegations resulted in felony and misdemeanor convictions against Fields.

Wednesday, May 1, 2019

Handshakes, children’s poems, and the loss of responsibility


Handshakes could be BANNED under new workplace rules to avoid expensive sexual harassment claims

So reads a headline in The Sun. No one is actually considering banning handshakes. Instead, it’s a cautionary “what if” from an “employment expert,” saying what could happen if employers take sexual harassment precautions to far.

I thought of that story as I read a different story yesterday, one about book of children’s poems banned from Costco because a “concerned mom” did not like the content of one of the poems.

Tuesday, April 30, 2019

Should you pay if your business is attacked by ransomware?


Cleveland Hopkins Airport flight information boards have been out of service since last Monday (story here). Yesterday, after paying contractors more than $750,000 to restore them, the City finally acknowledged the cause—a ransomware attack.

Ransomware is malicious software that locks and encrypts a victim’s computer data. The criminal then demands a ransom to restore access, usually within a set amount of time. If the ransom is not paid, the data is destroyed.