The 14th (and final) nominee for the “Worst Employer of 2022” is … the slumlord supervisor

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

That's the language of the 13th Amendment of the Constitution. Someone needs to provide Emmanuel Polanco, principal of MS 80 in the Bronx, a civics refresher. He's accused of shaking down a group of 10 teachers assigned to his school from a Department of Education program that brought teachers from the Dominican Republic to teach bilingual education in city schools.

It's the details of the shakedown, however, that will shake you.

EEOC Commissioner targets companies offering employees abortion travel benefits

In the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization that ended federal constitutional protections for abortions as a fundamental right, many employers in states in which abortions suddenly became illegal started offering employees out of state travel benefits for abortion access.

Now, not even five months later, Bloomberg Law reports that Republican EEOC Commissioner Andrea Lucas has launched targeted discrimination investigations against at least three of those companies. 

Corporate lawyers represent the company, not its employees

News broke last week of Elon Musk's lawyer reassuring Twitter's remaining employees that they should not worry about potential criminal liability for FTC violations the company may have committed in failing to abide by a 2021 consent order with the agency.

In and of itself, that sentence may seem innocuous enough … until you stop, think, and break down the parties involved. The CEO's lawyer was talking to Twitter's employees … who are not his clients.

WIRTW #650: the “Mastodon” edition

Call me a Twitter Armageddon Prepper. I'm not ready to abandon Twitter … yet. Even with Elon Musk in charge, I have 14 years and way too much human capital invested to jump ship even I think the Chief Twitterer is a twit.

But I'm also not convinced that Musk won't burn the whole platform to the ground. He's laid off half of the company's employees, some of whom are warning that the website is "built on sticks, and might … fall apart." Advertisers (along with their crucial revenue) are fleeing it in droves. Musk is banning users in a manner that is antithetical to his "free speech" ethos. The company's cybersecurity chief quit, along with its head of trust and safety, chief privacy officer, and chief compliance officer. Heck, even the Muppets quit. And in news that should surprise no one, Musk's paid account verification system is an absolute mess. We're all aboard the digital Titanic.

The Bird is a hot mess, and not in a "rising phoenix" kind of way. It's more of a "deep-fried turkey that boils over and burns the house down" kind of way. Or a "Twitter will soon be bankrupt" kind of way.

Thus, I've been looking for an alternative … just in case. Like many, I've landed on Mastodon as a potential Twitter replacement.

Mastodon is a microblogging platform similar to Twitter in many ways. 

• Mastodon has toots (compared to Twitter's tweets).
• Toots are limited to 500 characters (compared to Twitter's 280).
• You can favorite and boost other user's posts (as compared to liking and retweeting), but you can't quote.
• Hashtags are still hashtags.
• Mastodon's layout, look, and feel will appear very familiar on the web and on its mobile app to anyone who's ever used Twitter. Updates, however, are sorted chronologically instead of algorithmically 

The key difference, however, exists on Mastodon's backend. Mastodon isn't its own standalone website. Instead, it's a series of connected private servers that communicate with each other. When you sign up for a Mastodon account, you sign up to become a member of a particular server, privately hosted and moderated, and not part of Mastodon as a social media platform. Because all of the servers communicate with each other and you see posts from any server, as best as I can tell it doesn't necessarily matter the server to which you belong, and you're always free to switch servers at any time. 

And that's all I know. My account is parked at @jonhyman@toot.community. If you decide to give Mastodon a try, let me know by following me, and I'll be sure to follow you back.

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

Muckenfuss makes a mask fuss

Michael Muckenfuss worked in maintenance at a Tyson Fresh Meats facility. When the Covid-19 pandemic began, the town's mayor instituted an executive order mandating the wearing of masks, which Tyson enforced inside the workplace. Muckenfuss presented Tyson with a note from his health care provider requesting that he wear a cloth mask with a filter instead of a surgical mask as a reasonable accommodation for his asthma. Tyson agreed to the accommodation. Muckenfuss later sued, however, claiming that Tyson kept the mask mandate in place, along with his filtered mask, after the Covid executive order expired.  

He brought his claim not under the ADA, but under a provision of the Indiana Code that prohibits an employer from requiring as a condition of employment that an employee implant, inject, ingest, inhale, or incorporate an acoustic, optical, mechanical, electronic, medical, or molecular device into their body. Muckenfuss claimed that the face mask qualified as a such a device, and that Tyson violated the statute by requiring that he wear it on his face. 

The trial court had little difficulty in dismissing this claim.

This statute was aimed to prohibit the introduction of a device "into" the body. Wearing a mask on one's face isn't that.… Mr. Muckenfuss invites an interpretation that would render this statute absurd.… [H]is interpretation would suddenly prohibit all sorts of sensible mandates by employers. No longer could a company require a bleeding employee from wearing a bandage or band-aid "against" his wound. No longer could a company require an employee to wear a protective glove, or work boots, or goggles, or many types of personal protective equipment because they were likewise designed to be used "against" the body.

As this case illustrates, any employee can sue their employer for some alleged legal violation for just about any employment decision. The issue isn't whether you can be sued, but whether the decisions you made put you in the best position to defend that lawsuit if and when it comes.

How to conduct a layoff

Elon Musk did everything wrong with his employees upon his acquisition of Twitter, including laying off half of them via email. With the economy turning sour, more businesses will be facing the stark reality of having to shed headcount. If you need to layoff some of your employees, do you know what to do? Here are four tips (excluding bonus tip number 5 — call your employment lawyer).

VOTE!

Growing up, I loved Election Day. My elementary school was a polling place, which meant that I got the day off from school. My parents would take me with them into the school auditorium where all of the voting machines were lined up down front. 

As much as I loved Election Day, I also loved the old school voting machines used. Each came with a giant red lever that you'd slide to the right to close the curtain behind you and slide again to the left to record your ballot when finished and open the curtain. I can still hear the sound of that lever clanking into place echoing through the Loesche Elementary School auditorium, a sound that I will forever equate with democracy at work.

Would you fire this employee?

Over the weekend, I asked a simple question on LinkedIn: "Would you fire this employee?"

The employee in question took to LinkedIn to celebrate Elon Musk's dismantling of Blackbirds. Blackbirds was an Employee Resource Group for Black Twitter employees to support them, foster their development, and provide them a safe space within the company.

WIRTW #649: the “Ye” edition

We need to talk about Kanye. 

In the wake of his rampant and unapologetic antisemitism, people are hanging antisemitic banners on highway overpasses and projecting antisemitic slogans on the side of college football stadiums, others are dressing up like Hitler and other Nazis for Halloween, and famed Covid-denier and flat-earther Kyrie Irving is sharing a movie full of antisemitic tropes. 

Employers need to take a firm stand against hatred. Now is not the time to stand idly by. 

Anti-Semitism is wrong. 

White supremacy is wrong. 

Racism is wrong. 

Xenophobia is wrong. 

Homophobia, lesbophobia, biphobia and transphobia are wrong. 

Hard stop. 

Anyone displaying this hate, whether inside or outside of work, should be fired. 

Any idiot is free to say whatever he or she wants. But as an employer, I am free to hold that idiot accountable for his or her ignorant hatred. Actions have consequences, and until we start holding people accountable for theirs, we are signaling that this is okay, that this is normal. It's far from okay or normal. It's disgusting and deplorable. 

Silence in the wake of hate at best condones the hate, and at worst participates in it. If it's my business, I choose not to stay silent.

Here's what I read/listened to this past week that you should also read/listen to:

The 13th nominee for the “Worst Employer of 2022” is … the slaughtering supervisor

There's retaliation … and then there's murder. 

A federal court jury recently returned a unanimous guilty verdict against Juan Rangel-Rubio for murdering a whistleblower who exposed a multi-million-dollar scheme to fraudulently employ undocumented workers. His two co-defendants—Rangel-Rubio's brother, Pablo, and Higinio Perez-Bravo—await sentencing after pleading guilty for their role in the murder conspiracy. 

If your surveilling employees, the NLRB is watching you

Wearable trackers. Security cameras. GPS trackers. Keyloggers. Live webcam monitoring. Technology has made it easier for employers to monitor and manage their employees' productivity and discipline employees who fall short of expectations. Moreover, technology makes it possible for employers to continue tracking employees after the workday ends via employer-issued cellphone or wearable devices, and apps installed in employees' own devices.  

Employers are monitoring employees, and the NLRB is monitoring employers' use of these monitoring technologies.

NLRB General Counsel Jennifer Abruzzo just issued a memo on Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.

Pretext for termination ≠ cause for termination

Shortly after Elon Musk closed his $44 billion acquisition of Twitter, he cleaned out its C-suite. He fired CEO Parag Agrawal, CFO Ned Segal, CLO Vijaya Gadde, and general counsel Sean Edgett. 

This is not all that unusual. A new owner of a company should feel 100 percent comfortable with his executive team, and if Musk wasn't totally comfortable with that quartet running Twitter, then it's his prerogative to replace them. 

Employees who hold positions of authority such as CEO and CFO usually have employment agreements, and those agreements typically contain severance payouts if the agreements are terminated "without cause" prior to their natural expiration. This group of Twitter execs appear to be no different, and reports suggest that their agreements called for severance payouts totaling $122 million.

Are unions cool (again)?

Are unions cool again? Were they ever cool? 

On the most recent episode of Good Morning, HR, I sat down with host Mike Coffey to discuss the current wave of unionization that is sweeping the nation.

• The main factors causing a renewed focus on unionization.
• How Gen-Z has been energized to pursue safe and fair workplace environments.
• The signs that employees are ready to unionize.
• The best way that employers can avoid unionization.
• Actions employers should take when faced with an organization effort.
• The limits of employers and organizers during a union campaign.

You can listen on Apple Podcasts, Spotify, Google Podcasts, Stitcher, on the Good Morning, HR website, and everywhere else you get your podcasts. You can even watch on YouTube.

To whet your appetite, here's a quick tease. I answer the question, "What should the employer do when they first get wind that there's card collection activity going on?"

WIRTW #648: the “Red October” edition

All of my earliest sports memories involve the 1980 Phillies. 

Mike Schmidt's towering home runs. 

Steve Carlton's unhittable sliders. 

Bake McBride's hair. Pete Rose taking out Bruce Bochy at home plate. 

Tug McGraw leaping off the mound after striking out Willie Wilson and sealing the Game 6 victory against the Royals. (It was the first World Series win for one of baseball's oldest franchises, ending its 97-year title drought, and is the defining sports moment of my childhood).

I'll be the first to admit that I've fallen off the Phillies train since their last playoff run ended in 2011. It's a combination of living in Cleveland for nearly 30 years combined with a decade of mediocrity. 

Well, I'm back, baby! I've had an eye on the Phillies all season long, but with this month's dominant playoff run, capped off by Bryce's Bedlam at the Bank, I am all in for the Fightin' Phils!!!

If you're still on the fence of who to root for in the World Series, here are 8 reasons the Phillies should (must) be your pick over the Astros (one for each of the Phillies' 8 NL pennants).

1. Philly is the underdog. 87 wins and the last team in vs. 106 wins and the best team in the American League. We're Rocky against Houston's Apollo Creed. Who roots for Creed to win?!


2. No Philly = no baseball. Philadelphia is the cradle of our nation. Without Philly, there's no America. And if there's no America there's no need for America's pastime. 


3. The Philly Phanatic is the best mascot in all of sports. No debate. Case closed. (Sorry, Gritty.)


4. The Astros win too much. This is their 4th World Series in the past 6 years. It's time for someone (anyone) new. Why not us?


5. The Astros are a bunch of stinkin' cheaters. They cheated their way into winning the 2017 World Series and suffered no real consequences. Their bill is way past due, and the Phillies have come to collect.


6. This Phillies team is what sports is all about. No prima donnas, just blue-collar attitudes and hard work until the last out. This team never quits and is crazy fun to watch.


7. Cheesesteaks > tamales.


8. Ted Cruz is an Astros fan. 'Nuff said.

Go Phillies!!!

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

Must an employer pay employees for time spent waiting for computers to boot up?

It's a tale as old as time … or at least as old as employees have been working on computers. You start your work day by turning on your computer, and you wait. Wait for the computer to boot up so that you can then start actually working. That process (which repeats at the end of the work day when you shut the computer down) can take 30 seconds or it can take a few minutes or longer, depending on the age and speed of the machine, the operating system it runs, and the number of apps that need to load during the process. 

Here's the question — Is the time an employee spends waiting for their work computer to boot up compensable working time for which an employer must pay?

According to Cadena v. Connexx LLC (which the 9th Circuit just decided), the answer is an unequivocal yes.

The Surgeon General correctly wants you to focus on employee mental health

According to two recent surveys:

• 76% of U.S. workers report at least one symptom of a mental health condition.
• 84% of those reporting mental health symptoms believe their workplace is a contributing factor. 
• 81% of employees will be looking for workplaces that support mental health in the future.

For these and many other reasons, including Covid-19 bringing the relationship between work and well-being into clearer focus,  Dr. Vivek Murthy, the U.S. Surgeon General, has released a comprehensive report on workplace mental health and well-being.

This is what buyers’ remorse looks like

On May 9, 2022, the baristas working at the Starbucks store located at 1123 NW 63rd St., Nichols Hills, OK 73116 voted 10-9 to unionize. It was the first unionized Starbucks in the State of Oklahoma.

On the heels of the "victory," Collin Pollitt, the barista that led the unionization movement in that region, said this: "Today, we have become true partners in our organizing for a more just labor structure, where workers have a say in their workplace and earn a baseline living wage. We have reined in corporate power, and we carry on the banner of Martin Luther King Jr. with the idea that all labor has dignity."

A mere 163 days later, however, it appears that the store's employees have caught a case of buyer's remorse, as they have filed a decertification petition with the National Labor Relations Board. Unfortunately for them, however, whether they still want to be unionized or not, their petition and decertification effort is doomed to fail, and they will be stuck with their union, at least until May 9, 2023.

WIRTW #647: the “paying my debts” edition

You'd think I'd know better. 

• A payroll $182 million higher.
• 7 more regular season wins with run differential 176 points higher. 
• An MLB-leading 254 home runs vs. a near worst 127.
• Home field advantage in short five-game series.
• Aaron Judge.

Yet, I couldn't resist the allure of an ALDS bet with my friend (and dyed in the wool Yankees fan) Dan Schwartz on the outcome of the Guardians/Yankees ALDS series. The stakes? The loser must write a blog post heaping praise upon on the other team.

I lost, so here it goes.

Experience matters. This holds true in sports as it does in litigation. 

The average age of the Yankees rosters is 30.12 years, the oldest in the American League. The Guardians? 26.42 years, the youngest in all of baseball. This is the Yankees sixth consecutive year in the playoffs. The last time the Guardians made the playoffs they were called the Indians. They haven't won a playoff series since 2016, and the only person on their current roster to play in that World Series was Jose Ramirez. The Guardians young nucleus will continue to win for a few more years until such time as they cannot afford to resign their very young and exciting nucleus of Steven Kwan (25), Andres Gimenez (24), Oscar Gonzalez (24), Triston McKenzie (25), or Emmanuel Clase (24). Heck, even former Cy Young winner Shane Bieber is only 27.

Litigation is no different. Yes, the lawyers with less experience can win a case. In fact, they often do. They can work harder and smarter. Facts are facts and law is law, and no matter how seasoned you are, it's hard to escape bad facts and contrary law. Heck, in the first case I ever tried (and won) to a jury I was a fifth-year lawyer who never had done an opening or closing in a courtroom, and my opposing counsel was a member of the 50-year club. Having more experience doesn't equate to win rate. But it also doesn't hurt. And sometimes, the side with "more" wins. Experience matters. In a close enough case, it can be the difference. 

So, congrats to the Yankees (and, by extension, Dan). We'll see you again next season, where a healthy Jose Ramirez and a team with a year of postseason experience under its belt will bring about a very different result.

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

Ageist and ableist statements to 58-year-old disabled employee doom employer’s discrimination defense

"I wouldn't think with your condition and—your medical condition and your age that you would want to teach."

"I think your disability is slowing all this down.… You're really too old to be doing this."

"You need to go ahead and retire.… I'm concerned about this disability you have, your condition with your liver."

"Just how disabled are you?"

"I'm tired of disabilities and I'm tired of medical problems."

"I'm not running a rehabilitation clinic."

"If you're not at 100 percent, I can't use you. You've got to be 100 percent for this job."
 

These are just some of the comments Robert Bledsoe — a 58-year-old nuclear-plant operator who returned to work following a liver transplant — claims his supervisor made to him in the months prior to his removal from a teaching position. The Tennessee Valley Authority, on the other hand, claimed that it demoted Bledsoe based on ethical concerns after his son was accepted to the training program he taught.

Don’t estop thinking about your leave claim

"Is there money owed to you for claims against third parties, whether or not you have filed a lawsuit or made a demand for payment, such as for accidents, employment disputes, insurance claims, or rights to sue?"

When Stephen Stanley filed his bankruptcy petition with the bankruptcy court, he answered that question, "No." 

His problem, however, was that within weeks of filing his bankruptcy, Stanley's employer fired him from job, which he believed was related to their earlier FMLA violations. 

Several months later, the bankruptcy court modified Stanley's bankruptcy plan with "no future modifications." Indeed, Stanley never disclosed to the bankruptcy court the FMLA claims (or the FMLA lawsuit he filed against his former employer) until 16 months later, and only after the employer's lawyer questioned him about it at his deposition in his FMLA interference lawsuit.