Wednesday, October 12, 2022
Biden’s Department of Labor proposes significant new independent contractor regulations
Who qualifies as an independent contractor? If the Biden administration's new proposed regulations take effect as drafted, the answer to that question will change significantly.
Under the proposed new rules, the DOL will use a multi-factor "economic realities test" that considers and balances the following non-exclusive list of six factors to determine whether the worker is truly in business for themselves, or is an employee working for someone else.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, October 11, 2022
Why employees are quitting might also tell you why they are unionizing
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 10, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, October 7, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, October 6, 2022
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."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, October 5, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, October 4, 2022
What are you doing to address Bullying Prevention Month in your workplace?
October is Bullying Prevention Month.
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 3, 2022
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.'"
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 30, 2022
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 29, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 28, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 27, 2022
Dispelling six common wage and hour misconceptions
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, September 26, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 23, 2022
WIRTW #643: the “til I hear it from you” edition
- 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
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 22, 2022
“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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 21, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 20, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, September 19, 2022
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.
Which brings us to last week's Board decision in Troy Grove.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 16, 2022
WIRTW #642: the “get off our backs” edition
Can you please get off our backs? By "our," I mean management-side labor lawyers.
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 15, 2022
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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