Why employees are quitting might also tell you why they are unionizing

Why are employees quitting their jobs? StandOutCV (as reported by TLNT) wanted to know the answer, so it analyzed 2,698 recent social media posts where someone revealed the specific reason(s) for their resignation.

Here are the top 10 results.

A court was not having it when lawyers tried to victim-blame a sexual harassment plaintiff

One of our primary roles as attorneys is to protect our clients from their worse instincts. 

"Can I fire the employee who just filed an EEOC complaint or who's trying to form a union?" That's a really bad idea. 

"How do I erase the server with the smoking gun emails?" You don't. 

"If I ignore the harassment it will go away, right?" Umm, wrong.

"Let's file a motion to require a sexual harassment plaintiff to submit to a psychosexual examination?" 

In Carbajal v. Hayes Management Services, a federal court recently decided the propriety of just such a motion (very much) in the employee's favor. 

WIRTW #645: the “coach” edition

Do you have a side hustle? I now do, albeit an unpaid one. I just started my gig as a volunteer legal advisor for my daughter's high school mock trial team.

This year's case is fascinating. It's a suppression hearing over the issue of whether a student should have been Mirandized prior to being questioned by a school administration and a school resource officer. For the record, the Ohio Center for Law-Related Education's production values are off the chain.

I'm not a criminal attorney, and I've handled exactly one criminal case in my career (which I won at trial). In fact, nearly everything I know about criminal procedure I learned from a law school class I took 27 years ago plus my Law & Order addiction. That said, trial skills are trial skills, and I'm looking forward to using mine to help Lake Ridge Academy's team return to states for the 2nd consecutive year (and the 17th time overall).

While I'm on the topic of my daughter, please do she and I a solid and check out the latest episode of The Norah and Dad Show, now streaming everywhere, including Apple Podcasts, Spotify, Google Podcasts, Amazon, Overcast, Stitcher, and on the web.

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

Is a labor union liable for damages caused by its members during a strike

Suppose your employees walk off the job in protest of stalled negotiations over a new collective bargaining agreement. Further suppose that their union (allegedly) coordinates the strike with the precise time your concrete is being mixed and delivered for the day, causing the destruction of your product.

Can you hold the union liable under state law for their alleged tortious conduct?

According to the State of Washington's Supreme Court, the answer is "no."

Show this story to your employees who start clamoring for a union

When a labor union is engaged in organizing your employees, you are allowed to present facts to your employees to attempt to convince them to vote union "no." Here's a big ol' fact for you to file away if the need ever arises.

EEOC Sues Teamsters Local Union #455
for Sexual Harassment

What are you doing to address Bullying Prevention Month in your workplace?

October is Bullying Prevention Month.

Over 90% of employees say that they have been bullied by a co-worker or manager.

Yet, unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin, age…) bullying is probably lawful.

As the Supreme Court has famously said, our workplace discrimination laws are not meant to be a "general civility code." In layman's terms, our laws allow people to be jerks to each other at work as long as it's not because of a protected reason.

The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace.

The 12th nominee for the “Worst Employer of 2022” is … the hurricane haranguer

You might know Joy Gendusa, the CEO of PostcardMania, from her April 2020 video in which she called out employees who had reported her company to the local authorities for not following Covid-19 safety protocols. But that's so 2020 Worst Employer.

Gendusa is back in the news, this time for asking her employees to bring their families and pets into the office so that they could continue working during Hurricane Ian. 

In her words, communicated to employees during a Zoom call: "I honestly want to continue to deliver and I want to have a good end of quarter. And when [the hurricane] turns into nothing, I don't want it to be like, 'Great, we all stopped producing because of the media and the maybe that it was going to be terrible.'"

WIRTW #644: the “whitewater” edition

"What's the first film you remember seeing?"

That’s the lead off question on each episode of Films to be Buried With — Brett Goldstein's (aka Ted Lasso's Roy Kent) podcast. Each episode is a long form interview of a celebrity in which they their life story through films. It's a podcast worth celebrating this International Podcast Day and all other 364 days of the year.

The first movie I remember seeing is Race for Your Life, Charlie Brown, a 1977 Peanuts film in which the gang goes to summer camp and takes on a group of bullies in the annual river raft race.

I saw this film at the Woodhaven Mall with Uncle Ron and Aunt Rita … who were most definitely not my uncle and aunt. In fact, I had never met them before that day. I was four years old, and they ran a bus that took groups of kids to the movies during the summer. My parents paid to put their terrified four-year-old on a bus with two strangers to see a movie. I don't remember a thing about that film other than being completely freaked out on that bus and by the entire experience. In fact, it's the scariest movie I've ever seen about a river rafting trip. Thanks, Mom and Dad. 😞

What's the first film you remember seeing? Did it involve two strange adults picking you up at your house on a bus? Or was it an experience as memorable yet less creepy?

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

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.