Tuesday, March 17, 2020

Coronavirus Update 3-17-2020: House guts the Families First Coronavirus Response Act before sending it to the Senate


For the time being, I have rebranded the Ohio Employer Law Blog as the Coronavirus Law Blog. I’ll be using this space to offer daily updates on what is happening regarding this public health emergency. Everything is moving and changing so quickly, and, frankly, nothing else seems to matter right now. When we all come out the other side, I will happily resume your regularly scheduled updates on worst employers and everything else.

So here’s where are on the morning of March 17, 2020 (Happy St. Patrick’s Day).

Monday, March 16, 2020

Answering the six questions I’ve received most about the Families First Coronavirus Response Act


In the past 48 hours, I’ve received a lot of emails and other correspondence asking questions about the Families First Coronavirus Response Act. Most of them fall into one of six categories.

  1. I am a small business, and if I have to pay family and sick leave for my employees, I’ll go out of business. What am I supposed to do?

  2. I work for a [large employer]. They don’t provide any paid time off. What am I supposed to do if I get sick, or a family member gets sick?

  3. How does the interaction between the FFCRA’s paid family leave and paid sick leave work?

  4. I understand the tax relief provision, but I operate a non-profit that doesn’t pay any taxes. What relief is there for us?

  5. What about self-employed people? What relief is there for us?

  6. If a business is forced to close because of COVID-19, what relief is there for its employees who lose their jobs, either temporarily or permanently?

Saturday, March 14, 2020

BREAKING: House passes broad coronavirus stimulus and relief package, including paid sick and family leave


It’s been 12 days since I asked if coronavirus the thing that will finally make paid family and sick leave a national reality. Twelve days in the COVID-19 news cycle feels like 12 years. Regardless, I am happy to report that in the very early hours of this morning, by a bipartisan vote of 363-40, the House passed the Families First Coronavirus Response Act, sweeping legislation that will provide myriad emergency relief to businesses and individuals, including paid family and sick leave.

Shortly after the House passed the bill, President Trump tweeted his support, virtually assuring a swift run through the Senate and his signature.

Friday, March 13, 2020

WIRTW #591 (the “new (ab)normal” edition)


This has been one strange and disorienting week. I haven’t felt this disjointed since 9/11.

No basketball (pro or college).

No hockey.

No baseball.

No James Bond.

No large scale concert tours.

No Broadway shows or Disney parks.

No St. Patrick’s Day parades.

No Rock & Roll Hall of Fame inductions.

And, in Ohio, no mass gatherings of more than 100 people (to include auditoriums, stadiums, arenas, large conference rooms, meeting halls, cafeterias, or any other confined indoor or outdoor space, but not offices, restaurants, factories, or retail or grocery stores). And no school at least for the next three weeks.

And, to top it off, Tom freakin’ Hanks has coronavirus (my personal breaking point).

So what now? Our new normal is very abnormal. And it’s going to stay this way, at least for the immediate future.

As it stands, the best advice remains to practice social distances, stay home if you’re ill, follow the recommended hand washing and other “good hygiene” protocols, and don’t travel unless you absolutely (and I mean absolutely) have to.

Finally, above all else, please be flexible, understanding, and kind. If there was ever a time to prioritize the human issues, it’s now. Illnesses, quarantines, and closed schools will strain the workplace. I promise you that they are straining your employees more. The more nimble and empathetic we can be, the less this will hurt.

One last thing. When the time comes (and it will come) when we can resume our pre-coronavirus lives, get out and support small businesses, live music, the travel industry, and everyone else whose livelihood was impacted by COVID-19. They are really going to need it.

Here’s what I read this week:

Thursday, March 12, 2020

A thank you and a mission statement


Tomorrow, I was to receive my award from the Cleveland-area chapter of the National Association of Social Workers as its Public Citizen of the Year. Sadly, but understandably, coronavirus caused the event to be postponed. Since I will not have the opportunity to deliver my remarks (and I’m not sure when I will), I’m sharing them here.

* * *

Wednesday, March 11, 2020

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.

Tuesday, March 10, 2020

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.


Monday, March 9, 2020

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.”

Friday, March 6, 2020

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.

Thursday, March 5, 2020

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.

Wednesday, March 4, 2020

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.”


Tuesday, March 3, 2020

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.”

Monday, March 2, 2020

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.”

Friday, February 28, 2020

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.

Thursday, February 27, 2020

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.

Wednesday, February 26, 2020

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.”

Tuesday, February 25, 2020

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.

Monday, February 24, 2020

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.

Friday, February 21, 2020

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:

Thursday, February 20, 2020

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.