6th Circuit gives employers relief on the evidence employees must present to prove off-the-clock work

The difficulty in defending certain wage-and-hour cases is that employers are often asked to prove a negative. “I worked __ number of hours of overtime,” says the plaintiff employee. “Prove that I didn’t.” If the hours are for unclocked work, the employer often lacks documentation to refute the employee’s story. Which, in turn, leads to a case of "I worked / no you didn't." That, in turn, creates a jury question, the risk of a trial, and a settlement (since very few employers want to risk paying the plaintiff’s attorneys’ fees if the employee wins).

In Viet v. Le, the 6th Circuit Court of Appeals provides employers much needed relief from these extorting lawsuits.

Coronavirus resource update 🦠😷

As Ohio recorded its first three official coronavirus cases, I thought now is as good a time as any to share some COVID-19 resources I recently prepared, participated in, or will be participating in.

First, I recorded an episode of the SpheraNOW podcast where I discuss the risks and best practices for employers during this outbreak.

Is an employee entitled to FMLA leave to care for the children of a family member with coronavirus?

Among other qualifying reasons, the FMLA allows an eligible employee to take 12 weeks of annual unpaid leave to care for a family member with a serious health condition. Family member, however, does not mean any family member. It only applies to an employee’s spouse, son, daughter, or parent.

The FMLA’s definition of “son or daughter” not only includes a biological or adopted child, but also a child of a person standing “in loco parentis” (one who has day-to-day responsibility for caring for a child without a biological or legal relationship to that child).

Suppose, however, an employee’s family member contracts COVID-19. Is that employee entitled to FMLA leave to care for that family member’s minor children during the period of incapacity? According to Brede v. Apple Computer (N.D. Ohio 1/23/2020), the answer is “no.”

WIRTW #590 (the “win some, lose some” edition)

Life is often about competition. For example, I litigate for a living. Trials have winners and losers. We also compete for jobs, for college admissions, and for sports titles. And competition requires a winner and some losers.

Some things, however, we do just for the experience, even if that experience is built around competition.

Last weekend, my daughter’s band, Fake ID, competed in the finals of the Tri-C High School Rock Off. Even though they did not win the competition, they won the event. They played three songs (including two of their own originals) on stage at the Rock & Roll Hall of Fame in front of more than a thousand people. They earned a lot of new fans. They befriended other bands with whom they will be able to plan future gigs. As a finalist, they got to record a song in an amazing recording studio at Tri-C (stay tuned; their first single is coming soon, and I’ll be asking all of you to pre-save it on Spotify).

Before we dropped Norah off at the Rock Hall for the pre-event activities, I told her to have fun and play a great set, and that nothing else matters. She understood, and if you ask her she will tell it was mission accomplished. 

Here’s what I read this week.

Accidents will happen: “Not every mistake amounts to actionable employment discrimination”

Mistakes happen. Including in the context of employment decisions. But not every mistake amounts to actionable employment discrimination. That’s the lesson of this case, where Robyn Smith’s employer fired her after it wrongly concluded that she had been stealing from one of the company’s clients.

So starts the 6th Circuit’s opinion in Smith v. Towne Properties Asset Management Co.

What “Sexy Vixen Vinyl” teaches us about porn at work

If you’re Fox News reporter Brit Hume, you have a lot of explaining to do. Yesterday, the venerable journalist carelessly tweeted out his internet exploration of “Sexy Vixen Vinyl.”

Can an employer require an employee with a serious health condition to take FMLA leave?

Yesterday, in response to my post about coronavirus and paid sick leave, a commenter on LinkedIn asked whether an employer can force a sick employee to take FMLA leave.

The answer is a qualified “yes.”

Is coronavirus the thing that will finally make paid sick a national reality?

As of this morning, there are 88 confirmed cases of coronavirus in the United States, with two deaths. According to the CDC, one of the best measures people can take to prevent the spread of the virus is to stay home from work when they are sick. Yet, as noted by CNN, “for workers who don’t have paid sick leave, staying home when they aren’t feeling well can be financially devastating.”

WIRTW #589 (the “Coronavirus” edition)

Does the Coronavirus freak you out? Do you think it’s the beginning of the end for the human race, way over-hyped by the media, or somewhere in between? I’m in the “somewhere in between camp,” but it doesn’t mean that your business shouldn’t be preparing for the inevitable when this virus starts clustering in the US.

Thus, I’ve gathered the best thoughts on how to prepare from some of the best bloggers around the internet.

PLEASE, I’m freaking begging you, DO NOT use social media to determine applicants’ race and gender

Almost as long as social media has existed, employers have searched social media to dig up dirt on prospective employees. There is nothing illegal about these searches … provided you don’t use the information unlawfully. For example, to discriminate on the basis of a protected class.

If Lisa McCarrick, a former Amazon manager, wins her lawsuit against the online retailer, Amazon is going to learn this lesson the hard way.

Meet the new boss, same as the old, old boss—NLRB issues long-awaited final rule on “joint employment”

Yesterday, the NLRB announced its long-awaited final rule governing joint-employer status under the National Labor Relations Act.

The rule clarifies that for an employer to qualify as a “joint employer” it must “possess and exercise such substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.”

Just being in a protected class is never enough to protect an employee’s job

When Wisconsin Physicians Service Insurance Corporation terminated Mary Lou Stelter from her sales position, she claimed disability discrimination relating to a workplace back injury and her related two-month leave of absence.

WPS, on the other hand, argued that Stelter’s manager, Wendy Harings, expressed concerns about Stelter’s performance deficiencies and absenteeism four years before the back injury; thus, any negative marks after her injury were merely a continuation of her long history of on-the-job issues and not evidence of discriminatory animus.

The 4th nominee for the “worst employer of 2020” is … the perverted Peking-duck purveyor

Every year I worry about how I’m going to fill my annual list of worst employers. I’ve yet to be disappointed.

The EEOC recently filed suit against a Medford, Oregon, Chinese restaurant after its middle-aged night-shift manager repeatedly sexually harassed young female employees.

WIRTW #588 (the “new voices” edition)

One of the benefits participating in the Tri-C High School Rock Off is that your band gets featured in the Rock & Roll Hall of Fame’s “New Voices in Rock” video series. One of the benefits of advancing to the Finals is that your band gets featured a lot more in said video. So, without further adieu, I bring you Fake ID’s contribution to the Rock Hall’s “New Voices in Rock” series.


The Finals are next Saturday night, February 29. Tickets are only $12 (including Rock Hall admission) and are available here. Aside from Fake ID participating, it really is one of Northeast Ohio's best music events of the year.

Here’s what I read this week:

Just because an employer wins summary judgment doesn’t mean you should emulate its behavior

Jennifer Paskert worked as a sales associate for Auto$mart, a “buy here, pay here” used car dealership located in Spirit Lake, Iowa. During her six months of employment, she claimed her manager, Bret Burns, sexually harassed her. Her allegations included overhearing Burns tells other than he “never should have hired a woman” and wondering aloud if he could make Paskert cry. Burns also bragged at work about his sexual conquests. One on occasion he attempted to rub Paskert’s shoulders told her he was going to give her a hug. On another occasion, after Paskert had criticized how Burns treated women, Burns replied, “Oh, if you weren’t married and I wasn’t married, I could have you … You’d be mine … I’m a closer.”

Ultimately, Auto$mart fired Paskert for “insubordination.” She then filed suit for sexual harassment, among other claims.

“It’s a major award!”

I hate tooting my own horn. It usually comes off as self-serving and tasteless. But, sometimes it’s unavoidable. Today is one of those days.

I’m being honored by the Cleveland-area chapter of the National Association of Social Workers as its Public Citizen of the Year. 

7th Circuit concludes employer should have advised injured employee of FMLA rights even after employee went AWOL

Buddy Phillips injured his ribs while playing with his grandchildren. Over the next two weeks, he called his employer, United Trailers, to report he would miss work. Eventually, however, he stopped making these phone calls. When he failed to show up at work for three straight days without giving notice, United fired him under its attendance and reporting-off policy.

He sued, claiming that United interfered with his rights under the FMLA by failing to advise him of his rights under the statute after it had notice of his serious health condition but before he went AWOL.

WIRTW #587 (the “joy” edition)

On Valentine’s Day, we tend to focus (because marketing and advertising tell us that we should) on our significant other. Not to sound too cheesy, but I focus on my wife every day. I don’t need a special heart-shaped day on the calendar to remind me. Thus, I instead like to focus on the general ideals of love and that which brings joy into our lives. 

So for today, let’s focus less on the Hallmark world of Valentine’s Day and more on all of the things in our lives that bring us love and joy. 

And, in that vein, I bring you something that recently brought me tremendous joy—this video of my daughter learning that her band advanced to the finals of the 2020 Tri-C High School Rock Off. Don’t get me wrong, I’m excited for the opportunities that this will bring them, but I’m more excited because you can see from the look on her face when she hears the emcee announce, “Fake ID,” just how happy this makes her. We all need something in our lives that makes us this happy and joyful.

Happy Valentine’s Day y’all.

Here’s what I read this week:

The 3rd nominee for the “worst employer of 2020” is … the arresting retaliator

An African-American employee claims he suffered rampant discrimination at the towing company at which he worked, including being called racial slurs. But that’s not what qualifies A&B Towing for its nomination as the Worst Employer of 2020. It’s what happened to Michael Fesser after he complained to his boss about the discrimination and harassment that is truly eye-opening and offensive.

NBC News has the details:

Even though this employer won its ex-employee’s retaliation lawsuit, PLEASE don’t do what it did

Family businesses are difficult to manage. They become even more difficult when the owners are spouses, and an employee accuses one of sexual harassment.

For example, consider Allen v. Ambu-Stat.