WIRTW #575 (the “3.5” edition)

Being a parent is the world’s hardest job. But it’s also the most world’s most rewarding one. Which is why we keep doing it. The rewards are worth celebrating.

Last Friday night, I got to watch my daughter and her band absolutely blow the glass-pyramid roof off the Rock & Roll Hall of Fame at Cleveland Magazine’s Best of Cleveland Party.

“An example,” you ask? Here’s their latest original song, called “3.5” (which, in this proud dad’s very unbiased opinion, rips).


I love seeing the looks on people’s faces when the realize the sounds they are hearing are coming from a bunch of kids. At the Best of Cleveland event, I really loved seeing the band that followed them transform from, “We have to follow some kid band” (which was the look on their faces before soundcheck), to “How in the hell are we supposed to follow that?!” (which they actually said as they were walking onto the stage for their set.)

Here’s some photo memories of the evening, set to the soundtrack of a local radio show’s A+ review of Fake ID.


If you’re so inclined to check out all of Fake ID’s goings-on, they have a website, FakeIDofficialband.com.

Here’s what I read this week.

Must you tell employees when you are surveilling their devices?

It’s unusual these days for an employee not to have a device issued by their employer, or on which they can access their employer’s information — cell phones, tablets, laptops, and other computing devices.

Conventional wisdom (California notwithstanding), is that if the employer owns the device, the employee has zero privacy rights in that device, its use, or the information stored on it.

That conventional wisdom, however, might be changing.

“Tone down your gayness” = $20 million

A jury has awarded a St. Louis County police officer nearly $20 million over allegations that his superiors repeatedly denied him a promotion because they thought him too gay.

According to The Washington Post, the sergeant had more than 15 year of experience when he applied for a promotion. “The command staff has a problem with your sexuality,” he was told. “If you ever want to see a white shirt [i.e., get a promotion], you should tone down your gayness”, which was “way too out there.” The St. Louis Post-Dispatch adds that a captain had also referred to the plaintiff as “fruity.”

6 tips to avoid turning your costume party into an HR nightmare

Even this Halloween Scrooge

can get into the spirit

Halloween is this week. Truth be told, Halloween is one of my least favorite holidays. It always has been and always will be. I never liked it, even as a kid. Sure, all the candy was fun, but I just never got into the whole dress-up thing. As an adult, I like it even less. Not to be a Halloween scrooge, but I can’t even get into the holiday for my kids.

A lot of people, however, are into Halloween, and some are really into Halloween. It’s the holiday on which we spend more than any holiday other than Christmas.

And, a lot of your workplaces will be having Halloween celebrations. Some will request that you dress up for the occasion. If you happen to work in one of the workplaces, you have my sympathies. You also have my top 6 tips to avoid turning your innocent costume party into an HR horror show.

The 18th nominee for the “worst employer of 2019” is … the fecal loving fast-food manager

Kari Phillips did not feel well when she awoke prior to her shift at an Oregon City, Oregon, McDonald’s. She called the restaurant to request that someone cover her shift because of her stomach ailment, but a manager told her she had to come in, but would allow her to use the bathroom whenever needed.

According to Willamette Week, however, that’s not what happened once Phillips arrived at work.

WIRTW #574 (the “hero” edition)

What's a hero? I'm not sure how to define one, but I certainly know one when I see one. And earlier this week, I got to see one.

Dr. Harrison Schmitt is one of only 12 men to have walked on the moon. He was an astronaut on Apollo 17, the last NASA mission to land on the moon. He was also a United States Senator, chair of the NASA Advisory Council, and professor of engineering physics. And, at least according to his remarks, he still actively works with NASA.

He also has a very well developed sense of humor, as he was happy to share this clip of Norm McDonald asking David Letterman how it's possible that any of the Kardashians are more famous than someone who walked on the moon.

I was captivated listening to his remarks about his work on the Apollo lunar project.

Here's what I read this week.

OSHA publishes new guidance on distracted driving

The reaction time of someone texting while driving is 35 percent worse than someone driving without any distractions. Compare that figure to the 12 percent deficit a drunk driver faces, and you begin to understand why distracted driving is so dangerous. Indeed, in 2018 alone, 4,637 people died in car crashes related to cell phone use.

OSHA understands this danger as well. Thus, in conjunction with Drive Safely Work Week (which occurred earlier this month), OSHA announced an educational campaign calling on employers to prevent work-related distracted driving, with a special focus on prohibiting texting while driving.

Is this the worst defense ever to a discrimination claim?

Litigation is painful. It takes a lot of time, costs a lot of money, and has lots of variables that you just can’t control. Especially when the client goes off the rails and says something so ludicrous that you might as well just pack it in and cut a check.

As an example, I offer Evans v. Canal Street Brewing. It’s a race discrimination currently pending in federal court in Detroit. According to the Detroit Metro Times, the plaintiff, who is African-American, alleges “a racist internal corporate culture,” including the repeated used of the “N word”, and  management naming its printer the “white guy printer” and  the printer for lower-tier employees the “black guy printer.”

The employer’s defense? The restaurant’s general manager, Dominic Ryan, claims that he did not know Evans was black.

What’s really at stake when the Supreme Court decides LGBTQ rights under Title VII

Sometime next Spring the Supreme Court will announce its decision on whether Title VII’s prohibition against sex discrimination implicitly includes LGBTQ employees. It’s poised to be the biggest employment law case of the past three decades. And not just because LGBTQ discrimination is such a hot-button, high-profile issue.

One of the issues the Department of Justice has asked SCOTUS to revisit is whether Title VII’s prohibition against sex discrimination encompasses sex-based stereotypes.

That “sex stereotyping” is no different than “sex discrimination” has been the law of the land since the Supreme Court decided Price Waterhouse v. Hopkins 30 years ago.

What might the American workplace look like if SCOTUS actually reverses Price Waterhouse?

Take a look at workplace training Ernst & Young just required of its female executives (per HuffPost).

Women at Ernst & Young Instructed on How to Dress, Act Nicely Around Men

My dog was victim-blamed … and I don’t like it

On Friday, Dante, our five-month-old puppy, was attacked while in the (what we thought was the) safety our our fenced-in yard.

New neighbors recently moved in next door with their not-so-nice German Shepherd. They’ve warned us that he doesn’t get along well with other dogs, and, for that reason, they either tether him in their backyard, or monitor him while outside. At the time of the attack he was flying solo, and it ended badly for Dante. No one actually saw what happened, but either Dante was puppy-exploring through the slats in our fence, or the other dog lunged through the slats, or a combination of both. Either way, the neighbor’s dog was definitely the aggressor, and Dante definitely limped away with the lone injury.

Before staples                          After staples

WIRTW #573 (the “last laugh” edition)

When I go, I hope I have enough forethought to go out like this.

A dead man pranked his family at his own funeral by using a recording to scream ‘Let me out!’ as they put his coffin into the ground

Here’s what I read this week.

New EEOC case is a not-so-subtle reminder that we still have a lot of work to do to improve race relations

The allegations in this case—which the EEOC just filed against a Louisiana river transporter—remind us that while race relations have improved over the past several decades, they are far from perfect and we remain a nation with a lot of work to do.

A dramatic retelling of the 17th nominee for the worst employer of 2019

Click here for the full story.

The 17th nominee for the “worst employer of 2019” is … the mauling manager

I don’t even know what to say about today’s nominee for 2019’s worst employer, so I’ll just let Newsweek do the heavy lifting.

A Pakistani electrician is filing charges against a client who refused to pay their bill and instead unleashed a pet lion on him. 

Poor taste does not amount to prohibited sexual harassment.

I once made the mistake of watching an episode of Orange is the New Black on an airplane. The guy sitting behind was very uncomfortably enjoying the show along with me, and I shut it down.

Which brings me to Sims v. Met Council, a case in which an employee claimed her co-workers’ choice of television shows in the break room created a hostile work environment.

The 16th nominee for the “worst employer of 2019” is … the shameful wall builder

If you’re a health care facility whose employees erect a “wall of shame” of disabled patients, and then you drag your feet when an employee, who was also a patient, reports the misconduct, you might be the worst employer of 2019.

From the Bangor (Maine) Daily News:

Employees at St. Mary’s Regional Medical Center in Lewiston created a “wall of shame” where they displayed confidential medical records of patients with disabilities detailing issues with their genitalia and bodily functions, according to an investigation by the Maine Human Rights Commission that found the exhibit had contributed to a hostile work environment. 

WIRTW #572 (the “what did I miss” edition)

Did I miss anything big while I was away earlier this week?

• Argument analysis: Justices divided on federal protections for LGBT employees  — via SCOTUSBlog
• The Law is the Basement — via Kate Bischoff’s tHRive Law & Consulting Blog
• SCOTUS Oral Argument Recap: Is Justice Gorsuch the swing vote on LGBT workplace rights? — via Eric Meyer’s The Employer Handbook Blog
• Trump Appointee Gorsuch Plays Coy In LGBTQ Employment Rights Case — via NPR
• Justice Gorsuch emerges as an unlikely swing vote in the LGBTQ discrimination cases — via Vox
• The Supreme Court asks whether Title VII protects LGBT workers — via The Economist’s Democracy in America blog

In other news, I recently authored an article for Gusto discussing what AB5 (California’s recent law on independent contractor classification) means for small businesses operating in that state (including some practical tips for all employers dealing with contractor classification issues). You can access the article here.

Here’s what else I read this week:

A little kindness goes a LONG way

Earlier this week I was in Philadelphia with my family for my son’s cardiac procedure. During our visit, we stayed at the Sonesta Philadelphia (because I’m a hotel snob and it was the only non-big-chain hotel that offered a special rate for the families of CHOP patients).

At check-in, the desk clerk, Rachel, asked what brought us to Philly. “Nothing great,” I reported. “My son is having a heart procedure on Tuesday.” “So sorry to hear,” she responded. “Please let me know if we can do anything to make your stay more comfortable.”

WIRTW #571 (the “thoughts and prayers” edition)

I’ll be offline next week, as my family will be in Philadelphia for my son’s heart procedure.

Donovan was born with pulmonary valve stenosis, and on Tuesday he’s having a balloon dilation via cardiac catheterization to (hopefully) fix it.

While everyone likes to tell us it’s a routine procedure, we’ve learned with Donovan over the years that because of his genetic disorder anything medical is rarely simple. Moreover, if it doesn’t work, he’s almost certainly looking at open heart surgery in his future to replace the valve.

Thus, we are traveling to Children’s Hospital of Philadelphia (with a small detour first to New York City to take D-man to the Nintendo Store; he told me I better have a lot of room on my credit card) with hopeful thoughts and very anxious anticipation.

We’re taking all good vibes and prayers you have to send Donovan’s way.

I’ll post an update next week after his procedure.

Here’s what I read this week.

If at first you don’t succeed … Ohio will again try to fix its broken employment discrimination law

For lack of more artful description, Ohio’s employment discrimination law is an awful mess.

Among other problems, it exposes employers to claims for six(!) years; contains no less than four different ways for employees to file age discrimination claims (each with different remedies and filing deadlines); renders managers and supervisors personally liable for statutory discrimination; omits any filing prerequisites with the state’s civil rights agency; and contains no affirmative defenses for an employer’s good faith efforts to stop workplace harassment.

There have been several prior attempts to fix this law and harmonize it with its federal counterparts. All have died on the legislative vine.

Welcome House Bill 352 [pdf], introduced on October 1. It’s yet another business-friendly attempt at comprehensive reform of Ohio’s employment discrimination statute.