Friday, May 13, 2022

WIRTW #625: the “war on women” edition

How do you support your female employees amid times of great uncertainty about the continued viability of their reproductive rights and body autonomy? 

On the heels on Justice Alito's leaked majority opinion overturning Roe v. Wade, Levi Strauss & Co. published on its website the following statement.

As the pandemic has shown so clearly, public health issues are workplace issues. Business leaders are responsible for protecting the health and well-being of our employees, and that includes protecting reproductive rights and abortion access.…

Under our current benefits plan, Levi Strauss & Co. employees are eligible for reimbursement for healthcare-related travel expenses for services not available in their home state, including those related to reproductive health care and abortion. There is also a process in place through which employees who are not in our benefits plan, including part-time hourly workers, can seek reimbursement for travel costs incurred under the same circumstances.

Given what is at stake, business leaders need to make their voices heard and act to protect the health and well-being of our employees. That means protecting reproductive rights.

Levi Strauss joins other notable employers such as Amazon, Citigroup, Salesforce, and Yelp in covering employees' abortion-related travel expenses. I say bravo! 

Those are employers' responses. What about the response of a 15-year-old this opinion directly impacts? How does she feel about the Supreme Court taking away her reproductive rights and body autonomy? Listen to this week's episode of The Norah and Dad Show to find out. It's available on Apple Podcasts, Spotify, Google Podcasts, Overcast, Stitcher, through your browser, and everywhere else you find podcasts.

(For more about the legal issues raised by the leaked opinion, I highly recommend Marc Alifanz's and Kate Bischoff's deep dive on the most recent episode of their Hostile Work Environment podcast.)

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

Thursday, May 12, 2022

Let’s play spot the issue

Let's see if you can spot the employment law issue from this story, which I've borrowed from our local police blotter.
On April 26, the owner of a bar came to the police station regarding an ex-employee who stole his daughter's AirPods.

The stealing incident, which took place in February, led the owner to track the pods to a house that just so happened to be the home of the ex-employee's sister.

That's when the owner told the employee he was withholding his last check to cover the cost of the AirPods.

The man needed a police report to document the incident and provide the state justification of docking the ex-employee $250 from his last paycheck.

What do you think? 

Wednesday, May 11, 2022

Your front-line employees are not security guards

A video made the rounds yesterday on Twitter of a mass of Best Buy employees foiling a shoplifting attempt with a stellar zone defense.

Tuesday, May 10, 2022

Don’t file criminal charges against employees who’ve engaged in protected activity

Friedrich Nietzsche once said, "It is impossible to suffer without making someone pay for it; every complaint already contains revenge." Employment, however, is no place for revenge. 

Consider, for example, this hypothetical. The chief executive of BrewDog, James Watt, recently filed criminal charges against Emili Ziem, claiming that she provided false information about the person responsible for making malicious comments about Watt on social media. This comes on heels of the brewery using the EU's data privacy laws to unmask the identity of anonymous harassment complainants. 

Let's assume (although I don't believe it to be the case) that Ziem is one of the unmasked harassment complainants. Do the criminal charges filed against her by her former boss constitute unlawful retaliation under our workplace discrimination laws? 

The answer is a qualified "yes."

Monday, May 9, 2022

The NLRB is coming for your handbook (again)

  • Corrective action rules
  • A dress code
  • A prohibition on cell phone use while working
  • A social media policy
  • Confidentiality rules

These are a few of the 19 different polices contained in Starbucks  employee handbook (called its Partner Guide), which the NLRB alleges constitute "interfering with, restraining, and coercing employees in the exercise" of the right of the coffee retailer's employees to form a union under the National Labor Relations Act.

Friday, May 6, 2022

WIRTW #624: the “it’s snot okay” edition

Earlier this week our country officially passed 1 million Covid-19 deaths. According to the World Health Organization, Covid's full death toll is three times higher than officially reported.

Whether the actual number is 1 million or 3 million, it's an awful milestone and a grim reminder that Covid is still out there, mutating and circulating in the community. Indeed, Covid numbers are rising nationwide, with some counties and even entire states moving back into the "high transmission" category after a short restbite. 

You'd think after two-plus years of pandemic living, people would know the rules of Covid-19 road. For example, the importance of practicing good hygiene habits and not sneezing directly into the palm of your hand

Some people, however, appear not to have received this message. For example, consider the cashier at a local Skechers store that Norah and I visited last weekend. All we wanted to do was buy her a pair of comfortable shoes to wear to her new job. Instead, we got this nasty encounter.

🤧 💦 🖐️ 🦠 😳 🤢 

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

Thursday, May 5, 2022

Why are labor unions are having their moment?

Yesterday I shared about the moment labor unions are currently having, with representation petitions surging 57% over the past six months, and 625% in the hospitality and food service industry over the past decade. 

The question is why

To be sure, toxic management, poor workplace culture, and low wages are a factor. But they are a factor anytime a labor union takes hold in a workplace. I'm looking for the reasons our current labor movement is having its moment in time.

Here are my thoughts.

Wednesday, May 4, 2022

If it feels like labor unions are having their moment, it’s because they absolutely are

Union representation petitions are surging. According to the National Labor Relations Board, they have increased a whopping 57% over the past six months.

Even more astounding is just how many of these petitions are in hospitality and food service industry. According to an NPR analysis, 27.5% of all union election petitions filed thus far this year come from that market segment. Compare that to just a decade ago when the number was a scant 3.8%. That's nearly a 625% increase. 

Tuesday, May 3, 2022

What was your worst job ever?

The year was 1989. It was the summer between my junior and senior years in high school. I worked as a busboy in the dining room of an assisted living facility. It paid $7 an hour, which was a great wage 33 years ago. 

Clearing tables, however, wasn't the only job duty. Part of my job was to "drive" non-ambulatory residents from their apartments to the dining room for dinner. One resident in particular — who, in hindsight, almost certainly suffered from some form of dementia — would answer her door completely nude. But that wasn't what made that summer job my worst job ever.

Monday, May 2, 2022

I’m begging you, STOP firing union organizers

Brenda Garcia led union efforts at Chipotle as one of its employees. Or, rather, she was one of its employees until last week, when the restaurant chain fired her

Employers, I'm begging you, please stop firing union organizers. It's illegal. It's also a terrible union avoidance strategy because you're playing right into their hands.

Friday, April 29, 2022

WIRTW #623: the “blocked” edition

I've probably written more about labor organizing over the past six months than in the prior six years (or longer) combined. It's a testament to the cultural significance of Starbucks, Amazon, Apple, and all of the other high-profile union campaigns happening all over the country.

Every time I post something remotely anti-union, I'm appalled by the number of personal attacks I receive from pro-union advocates. I've been called a corporate shill, stupid, a lousy lawyer, and worse. 

Guess what? You're not my audience. I'm a management-side lawyer. I'm not writing to you. I'm writing to and for business owners. I don't expect you to agree with me, nor do I care if you do. But I do expect that we should be able to have a civil conversation about the issues. When you attack me personally, that civil conversation cannot happen. It will also get you blocked, so why bother?

I will not engage with anyone who demeans or attacks me. But please, by all means keep making yourselves look bad. You're only undermining your own position and helping me reinforce mine.

Here's what I read the past week that I think you should be reading, too.

Thursday, April 28, 2022

Series of promotions dooms gay brewery employee’s sex discrimination claim

Midland Brewing Company hired Ryan Boshaw to work as a server. Over the span of nine months, it promoted him three times, to an hourly managerial position, to floor leader, and ultimately to front-of-house operations manager (the second highest ranking position in the business). 

Shortly after Boshaw's final promotion, however, Midland terminated him following a series of performance-related issues and concerns. The brewery had issue with how he handled an issue with customers who found hair in their food. He deviated from his job assignments and interfered with how others performed their jobs. He brough the wrong resume to an interview of a prospective employee. The final straw for the brewery was Boshaw missing a mandatory meeting after texting a co-worker that the meetings were "such a waste of time," and then being no-call/no-show for his shift that evening. The brewery fired him the next day because of his "absence and failure to notify management" in addition to "other issues."

Where's the claim that supports Boshaw's federal lawsuit? 

Wednesday, April 27, 2022

Labor unions are doing just fine without the NLRB’s help

Over the past decade, labor unions win between 65 and 70 percent of representation elections. Given organized labor's recent more high-profile victories, I expect that number to increase for 2022. So then why is the NLRB hellbent on helping unions win even more?

The NLRB's general counsel, Jennifer Abruzzo, recently filed a brief in a case pending before the Board, Cemex Construction Materials Pacific, asking it to overturn decades of well-established precedent on employers' rights in union organizing campaigns. Specifically, she seeks to:
  1. Ban "captive audience" meetings.
  2. Eliminate secret-ballot union elections by requiring employers to recognize and bargain in most cases upon the presentation of a majority number of signed authorization cards
  3. Prohibit an employer from providing employees legally correct information about how the employer-employee relationship might (will) change once they vote in a union to represent them.
Let's take a look at each of these significant proposed changes.

Tuesday, April 26, 2022

Restaurant learns the hard way what an illegal tip pool looks like

Hard Eight BBQ says it misunderstood its obligations under the Fair Labor Standards Act by paying managers a share of tips earned by servers across the restaurant's five locations. As a result, following a Department of Labor investigation it reached a settlement with its managers totaling $867,572. 

Matt Perry, COO of Hard Eight BBQ, told 5 NBCDFW that "managers were part of the tip pool at their five restaurants because they do the same jobs as other hourly employees on any given shift and that because of that they felt like managers should also receive a small portion of the tip share."

Monday, April 25, 2022

Mask mandates might be gone, but maskual harassment isn’t

Workplaces, state and local governments, and the CDC have relegated mask mandates to the dustbin of Covid history. But just because people are no longer required to wear masks anywhere doesn't mean that some people aren't choosing to do so on their own. The end of mask mandates, however, has not ended the culture wars that have surrounded mask for the past two-plus years.

According to a recent poll by The Associated Press-NORC Center for Public Affairs Research, 56% of Americans still favor mask mandates on planes, trains, and public transportation, 49% for workers who interact with the public in restaurants and other places, and also 49% for crowded public events. (My own poll on LinkedIn revealed a smaller 36% still in favor of mask mandates on planes and public transportation.)

That leaves a large swath of America strongly entrenched against masks. And some are still expressing their opposition in less than constructive means.

Friday, April 22, 2022

WIRTW #622: the “wings” edition

Ask anyone from Philadelphia (including me) about the city's best cheesesteak, and the names you will not hear mentioned are Pat's (its inventor) or Geno's. Yes, they famously hold court at the intersection of 9th and Passyunk in South Philly. They might be Philly's most famous cheesesteaks, but they are not the best (a title which, in my humble opinion, belongs to Tony Luke's … but that's a story for another day).

Does the same hold true for buffalo wings? The eponymous chicken wing was invented at the Anchor Bar in Buffalo, New York. During her choir trip last weekend, Norah had the opportunity to visit the Anchor Bar. No, she didn't order wings for lunch, but she did sample one. What did she think?

You can hear all about the rest of Norah's choir trip on the most recent episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, Google Podcasts, or wherever you get your podcasts.

Here's what I read the past week that I think you should be reading, too.

Wednesday, April 20, 2022

Your office might be open, but the bar should remain closed

According to The Wall Street Journal, some businesses are using alcohol to entice their employees to return to the office.
As businesses work to settle employees into offices, some are pulling out the stops—literally, on kegs, casks and wine bottles—in an attempt to make workplaces seem cool. Sure, executives could simply order people to return to their cubicles, and some have, but many want their workers to come back and like it.

Tuesday, April 19, 2022

Harassment complaints don’t require a “perfect" response, just a “reasonable” one

Ronald Burns, a maintenance technician at Berry Global, was the victim of three instances of racial harassment over the span of 17 days.
  • Burns found a piece of cardboard in his locker that read, "dance monkey." He complained to HR.
In response, HR spent several days reviewing security camera footage in an attempt to discovery the perpetrator, which it could not do. The plant manager also met with the entire shift and advised that such harassment would not be tolerated. 

  • Four days later Burns found a noose hanging from the lock on his locker. He again reported the harassment, this time to his supervisor and to the company's ethics hotline.
In response, the plant manager gave Burns the weekend off with pay. Pre- and post-shift walkthroughs of the locker room were also started to seek any offensive items. HR interviewed 19 employees but could not lock down a suspect. Finally, the company adjusted the cameras to offer better coverage.

  • 13 days later, Burns found yet another piece of cardboard in his locker, but this time it read, "die n*****." He again reported it to harassment.

After reviewing more camera footage, the company narrowed its investigation to one suspect, present in the locker room prior to all three incidents. All employees were also re-interviewed, and the suspect was suspended without pay even though he could not be confirmed as the culprit. Finally, Burns was offered a transfer to a different shift, which he declined. 

Five month later, Burns found a noose attached to his toolbox. This time, instead of complaining to management he quit and filed a racial harassment lawsuit. 

At issue in Burns's lawsuit was Berry's response to his complaints — whether it had "manifest[ed] indifference or unreasonableness in light of the facts the employer knew or should have known," or whether it "tolerated or condoned the situation or that the employer knew or should have known of the alleged conduct and failed to take prompt remedial action." 

Monday, April 18, 2022

Jury awards $450,000 to employee fired over unwanted birthday party

Kevin Berling, a 10-month employee of Gravity Diagnostics, made a simple request of the manager of his office —"Please don't throw me a birthday party; I have an anxiety disorder."

What happened next spiraled into a lawsuit that lasted more than two and half years and ended late last month with a $450,000 verdict for the employee.

Friday, April 15, 2022

WIRTW #621: the “on the radio” edition

How do I know that labor unions are making raging comeback? Historically, my posts on unions, union organizing, and union avoidance would struggle on LinkedIn to break 1,000 views and would only garner a handful of likes and comments. Over the past few weeks, however, my posts on the dramatic and successful rise in union organizing have been viewed well over 100,000 times with hundreds upon hundreds of likes, comments, and shares. It's an issue that has raised passion on both sides.

How else do I know? Because my social and news feeds are full of stories about union organizing. I think I've read more stories about labor unions in the past 18 months than I did in the first two decades of my legal practice combined.

Yesterday, it was my pleasure to appear on Labor Relations Radio to discuss all of these issues. We covered the reasons for the rise in union organizing, why I'm anti-union (but pro-employee), the use of salts in the Amazon and Starbucks campaigns, and the NLRB's general counsel's Cemex brief, which calls for the NLRB to alter rules on mandatory card check recognition, the elimination of captive audience speeches, and other issues that will dramatically tilt the organizing playing field even more in favor of the unions than it already is.

You can listen here, or wherever you get your podcasts.

A huge thank you to Peter List for inviting me on his show. 

Here's what I read the past week that I think you should be reading, too.