Correlation isn’t necessarily causation … except when it is

According to a recently filed EEOC lawsuit, Dollar General violated Title VII by firing a sales employee because of her pregnancy. More to the point, Dollar General, the EEOC alleges, fired her immediately after she advised her manager of her pregnancy. It listed "health" as the reason for her termination on her separation notice, after advising her of concerns for her safety.

Never say “nevermind” when child pornography is involved

You may not know who Spencer Elden is, but you almost certainly know what he looked like as a newborn. Spencer, in all of his glory, graces what is perhaps the most famous album cover of all time, or at least of the last 30 years — Nirvana's iconic grunge masterpiece, Nevermind.

Spencer Elden was also recently a plaintiff, as he sued Kurt Cobain's estate, Krist Novoselic, and Dave Grohl for child sexual exploitation based on their use of naked baby image. (He lost, btw, not once, but twice.)

While the lawsuit and its 30-year-old claim certainly seem like a b.s. money grab, it did get me thinking, do you know what to do if you discover child pornography in your workplace, on your network, or on one of your devices?

Here are four thoughts.

Dispelling six common wage and hour misconceptions

19 hours in a workday without overtime pay. That's how one Amazon delivery driver described his experience working for online conglomerate.

To be clear, while it might make for an awful work environment to work a 19-hour shift, there is nothing in the federal wage and hour laws that require overtime pay for a 19-hour workday. 

Overtime under the federal Fair Labor Standards Act is based on hours in a work week, not a workday. (Please check your state laws, employers in Alaska, California, Colorada, and Nevada, as your overtime obligations might be tied to hours in a workday, not work week.) The FLSA only requires time and a half of one's regular rate of pay is required for any hours in excess of 40 in a week. 

While it's easy to imagine 19-hour days quickly adding up to a number over 40 hours in a week, 19 hours in one workday, in and of itself, does not qualify one to overtime pay under the FLSA. 

Workplace romance vs. workplace harassment

The Boston Celtics have suspended their head coach, Ime Udoka, for the entire 2022-23 season.

His offense — it was initially reported that he had violated the team’s policies by engaging in a consensual intimate relationship with a female staff member. 

This punishment seemed … harsh. A year for a consensual relationship? If you don’t want your head coach dating staff, why not just direct him to end the affair with a stern warning not to let it happen again, instead of a year-long suspension? In fact, it seemed so harsh that I knew that there had to be more to this story. 

WIRTW #643: the “til I hear it from you” edition

It's been a busy week, both in the practice of law and in the recording of some podcasts for your listening pleasure.

• Labor Relatedly Ep. 4 — via DriveThruHR
• I Always Feel Like Somebody’s Watching Me: Monitoring Employees' Social Media — via Employment Law Today
• Labor Relations Radio, Ep. 36: Weingarten Rights, What They Are and How They're Likely Coming Back to Non-Union Workplaces — via Labor Relations Radio

As for the other half of The Norah and Dad Show, you can see her perform tonight at Baxter's Speakeasy in Akron and next Friday, Sept. 30, at The Olde Wine Cellar in Olmsted Falls. Both shows are free, although Baxter's has a one-drink minimum, and The Olde Wine Cellar would prefer if you buy a bottle of wine and a flatbread to consume while you enjoy the music.

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

“Pretextual investigation” dooms employer’s defense to ex-employee’s retaliation claim

An employee, Joseph Canada, uses his cell phone to solicit sex from prostitutes during work hours. His employer, Samuel Grossi & Sons, discovers the text messages and terminates the employee for violating its policies against "[u]nlawful conduct which adversely affects the employee's relationship on his/her job, fellow employees, supervisor and/or damages the Company's property, reputation or goodwill in the community" and "[i]mmoral or indecent conduct."

The employee then sues for retaliation, claiming that the termination was in retaliation for filing another lawsuit the month prior claiming discrimination and FMLA violations.

The district court dismissed the retaliation claim, stating that "[n]o reasonable jury could conclude that defendant's proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff's employment was pretextual."

On appeal, however, the 3rd Circuit concluded that the reason for the termination is irrelevant if the investigation that leads to the discovery of the evidence that causes the termination was pretexual in and of itself.

The 11th nominee for the “Worst Employer of 2022” is … the cable guy

When 83-year-old Betty Jo Thomas missed her family's Christmas dinner in December 2019, they went to her home to check up on her. They found her stabbed to death on her living room floor. Footage from Thomas' Ring doorbell revealed that the last person to enter her home was Roy Holden, a (now former) Charter Spectrum field technician.

Holden had performed a service call in Ms. Thomas' home. The next day Holden returned, allegedly off-duty but in his company-issued and branded van, to again help Thomas. While in her home, Thomas caught Holden stealing credit cards from her purse. In response, Holden brutally stabbed her with his Charter Spectrum utility knife and went on a spending spree with her stolen credit cards.

Holden has since been convicted of the murder and is now serving out a life prison sentence.

Thomas' family sued Charter Spectrum over its responsibility for her murder. After a mere two hours of deliberations, a jury recently returned a $7.3375 billion verdict ($337.5 million in compensatory damages and $7 billion in punitive damages). That's more than half of the company's entire quarterly revenue.

Employers, repeat after me: “Tips belong to employees, not employers.”

$1,351,253.34. That's the amount a federal judge has ordered the Empire Diner, its owner, Ihsan Gunaydin, and its manager Engin Gunaydin to pay a group of 107 servers and kitchen workers based on an illegal tip scheme.

What rendered the restaurant's tip scheme illegal? It required servers to turn over 10 to 15 percent of their total tips received on any given shift to pay the bussers' wages. That's a clear violation of the Fair Labor Standards Act.

The NLRB is inching towards Weingarten Rights for all employees

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court held that employees covered by a collective bargaining agreement are entitled to request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in disciplinary action. 

In the 47 years post-Weingarten, however, the Board has vacillated on the issue of whether those rights also extend to non-union employees. For example, in 2000, in Epilepsy Foundation of Northeast Ohio, the Clinton-era Board found that employees in non-union settings have Weingarten rights to a coworker representative during investigatory interviews. More recently, however, the Bush-era Board, in IBM Corp., concluded the exact opposite, that, in light of certain policy considerations, the Board would no longer find that employees in non-union workplaces have the right to a coworker representative. Finally, in 2017, an Obama-era Board Advice Memo called for the Board to flip again and hold Weingarten rights extend to employees in non-union workplaces.

Which brings us to last week's Board decision in Troy Grove. 

WIRTW #642: the “get off our backs” edition

Can you please get off our backs? By "our," I mean management-side labor lawyers. 

Let me explain.

I just finished listening to the latest episode of the 43-15 Podcast discussing the first group of Petco employees to attempt to organize into a labor union. The hosts were all over the "union busting lawyer" Petco hired to represent it and challenge the employees' organizing. His major sin: "Counseling many companies on labor strategy, union avoidance, and responding to union backed corporate campaigns." Heavens to Betsy, a lawyer doing … wait for it … his job.

Like any other attorney, management-side labor lawyers have a job to do and an ethical obligation to represent their clients zealously. Union organizing and recognition is a decided in an election, in which a majority of employees need to choose to unionize. What are employers supposed to do, roll over and let the union walk in unimpeded? As their lawyers we are simply playing our roll in this process. That's all. Is it adversarial? Sure. Does it sometimes get heated? Of course. But management is entitled to be represented just as do the employees seeking to unionize.

Don't hate the player, hate the game. That's all I'm saying.

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

Pre-employment pregnancy testing?

I was tagged on Twitter to address this situation.

My friend did a drug test for a part time job for the local school district. When she got her results, she found out that the district also did a pregnancy test. Besides ethical issues, this seems like a legal red flag given she wasn't told this would be done.

The OP added that her friend's spouse (male) did the same screening for the same employer, but no pregnancy test.

If it looks illegal, and it smells illegal, then it's illegal. Let's examine why.

Lyfting independent contractor status

If I asked you to identify Lyft's business, how would you answer? 

"They're a transportation company," you'd say. There's no other correct answer … unless you ask Lyft. 

Lyft will tell you that it's a tech company, not a provider of transportation.

The 10th nominee for the “Worst Employer of 2022” is … the sex offender supervisor

The most disturbing case I ever handled involved a company that hired a registered sex offender as a supervisor, who then raped a female subordinate.

Today’s “Worst Employer” nominee is very much in that tragic and devastating vein.

Vice provides the details, which it confirmed with Claire, he co-workers, court records, and even Starbucks itself.

Spotting the employment law issues in “She-Hulk"

Donny Blaze was a former student of Kamar-Taj, having dropped out after failing to adhere to their strict teachings. He left, however, with a souvenir, a sling ring, which sorcerers use to open mystic portals. Blaze then uses the sling ring, along with what he learned during his time at Kamar-Taj, to spice up his otherwise very pedestrian cabaret magic act.

Wong, the Sorcerer Supreme, seeks your legal counsel to file suit against Blaze to enjoin his use of Kamar-Taj's mystic arts. 

What are the potential claims? Let's explore.

WIRTW #641: the “slim shady” edition

Guess who's back, back again…

After a semi-intentional summer break, The Norah and Dad Show — the podcast I host and produce along with my 16-year-old daughter — is back for Season 2. You find us everywhere podcasts are available, including Apple, Spotify, Google, Overcast, Amazon, Stitcher, and via our website. If you're new to the show, please make sure you go back and check out all of Season 1.

While I'm talking about Norah, she has some gigs coming up over the next several weeks: this Sunday, Sept. 11, at the Berea Arts Festival (from 2–3p); Sept. 23 at Baxter's Speakeasy in Akron supporting Chanilla and Sad Harris (8p); and September 30 at The Olde Wine Cellar (starting at 6p). All shows are free, although Baxter's does have a one-drink minimum. Please stop and say hello. 

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

How broad is potential liability for retaliation? THIS broad.

In 2016, Tom Pettay sued his former employer, DeVry University, for age discrimination. The trial court dismissed Pettay's lawsuit on summary judgment. Following that dismissal, the employer filed a motion asking the trial court to award them $4,004.39 for the cost of deposition transcripts used in support of the summary judgment motion. While Pettay's appeal of the court's award of costs was pending, the Ohio Supreme Court held that a prevailing party cannot recover the costs of deposition transcripts. 

As a result, Pettay again sued DeVry (or, more accurately, its successor in interest, Cogswell Education), claiming that it retaliated against him by pursuing a frivolous motion for the costs of the deposition transcripts. 

Like herpes, the NLRB’s efforts to liberalize its joint employer standard just won’t go away

Joint employment under the NLRA has a tortured history over the past seven years. 

Yesterday, the NLRB released a Notice of Proposed Rulemaking (NPRM) to rewrite the standard for determining joint-employer status under the National Labor Relations Act.

Under the current joint employer standard — to which the NLRB adhered until the Browning-Ferris decision in Aug. 2015, and to which it formally reverted in Apr. 2020 — one employer is only a joint employer with another employer if it possesses and exercises "substantial direct and immediate control" over the terms and conditions of employment of another employer's employees.

Joint employment matters … a lot … because if you're a joint employer over the employees of another employer you are jointly and severally liable for the legal wrongs committed by the primary employer. Under the NLRA you also would share collective bargaining responsibility.

WIRTW #640: the “Wickens Workshop” edition

When you take over a practice group and are tasked with building it, you naturally have to think of ways to market and grow it. Presenting semi-regular seminars for clients, prospective clients, and referral sources was low hanging fruit. I can talk about employment law all day long. Just give me a topic, a microphone, and an audience, wind me up, and let me go to work. Thankfully, my cohorts in our Employment & Labor Practice Group feel the same way. 

Thus, Wickens Workshops were born. (Full credit to Matt Danese for the alliterative branding.) Our next event, discussing employee leave of absence issues, will take place on Oct. 20 from 8–10 am.

While imitation is always the sincerest form of flattery, sharing this idea with my co-workers is hardly imitation. It's just smart business. Thus, the Wickens Workshops branding has expanded to include our Business Restructuring & Bankruptcy and Intellectual Property practice groups, which will hold events on the mornings of Nov. 15 and Jan. 18, 2023, respectively. We now have a full-blown series of panel discussions covering a variety of legal areas and topics. 

I hope you can join us. Stay tuned for registration information for each of these events.

Also, if you'd like to hear me speak before our Oct. 20th Workshop, tune in to Lunch Conversations with Randy & Teddy on Wednesday, Sept. 7, from noon to 1 pm, when I'll be discussing all things labor and employment law.

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

Checking the pulse of the American worker on labor unions as we enter Labor Day Weekend

The following stats should be eye-opening for any business owner, CEO, or board of directors.

• 71 percent of Americans "approve" of labor unions, the highest reported approval rating since 1965.
• 70 percent of non-union employees say that they would consider joining a union, up 141% in just three years.
• Unions win approximately 75 percent of all representation elections.

What does all of these stats mean? If a union organizer starts talking to your employees about unionizing, the odds are high that your business will end up unionized. 

Pizza shop closure is a teachable lesson on union avoidance

We are truly heartbroken to announce that we've made the difficult decision to permanently close both Knead Slice Shop and Knead Market effective immediately (August 23, 2022), regardless of the outcome or the occurrence of the requested union election.

We respect the right of workers to organize under the National Labor Relations Act or other appropriate laws. We hope our workers will recognize our related right as an employer, especially a small employer, during these extremely difficult operational times, to close our entire business operation.

We continue to wish our employees well. 

That's what a pizza shop posted to its Instagram last week, announcing its decision to shutter all of its operations, permanently.