Friday, January 13, 2023

WIRTW #656: the “Dilenogate” edition


Until now, I've avoided writing about Dilenogate, the story that has gripped the Cleveland legal community and the nation. 

To sum it up, Jon Dileno, a (now former) senior labor and employment attorney at Cleveland law firm Zashin & Rich sent a highly offensive and inappropriate text to an employee who, instead of returning to the firm following her maternity leave, accepted a new job and gave her notice. 

He called her "soul-less and morally bankrupt," threatened to trash her in any future job references, and accused her of "collecting salary from the firm while sitting on your ass" while on maternity leave. 

The story went crazy viral after Kelly Barnett shared the story and text message on LinkedIn.

In response to the viral story, the firm put out a weak (and I'd argue further damaging) now-deleted post on its own LinkedIn page: "That single text was sent in the heat of the moment by an employee upset by the belief that the former colleague while on paid leave sought employment with another law firm." As pressure mounted, however, it published another post the next day: "After careful consideration, Jon Dileno is no longer with Zashin & Rich."

So much digital ink has been spilled about this story, there's no need for me to pile on. Instead, I merely direct you to the following:

I'll merely add the following to this important discussion. The legal community and, more broadly, the entire business community, needs to do better with pregnant workers and new moms. Childbirth and maternity leave aren't a vacation. We as employers (heck, as humans) should never treat it as such, nor should we stigmatize or punish our employees for doing that which their bodies naturally — give birth. Bringing a child into this world is difficult enough. We don't need to make it any harder than it already is. 

Support new moms; don't retaliate against them. Here's a three suggestions to consider that will not only help you support your employees, but will also help you recruit to and keep talent in your business.

1.) Offer strong parental leave programs. The FMLA requires 12 weeks of unpaid leave. Consider offering more, or offering to cover the employee's pay for some/all of the leave. If you're not FMLA covered or the employee isn's FMLA eligible, consider mirroring the statute for your employees anyway.

2.) Ramp up/down policies. Plenty of employees work their full 40 right up until their due date, and jump right back into the deep end of work as soon as their leave ends. But consider a phase out and a phase in with reduced hours on both ends. It helps the new mom's physical health leading up to childbirth and her mental health in returning to work.

3.) Schedule flexibility. Parenting isn't a nine-to-five job. It's a 24/7/365 job that is really good at throwing curveballs to parents. Late nights with little sleep. Unexpected doctor appointments. Visits to the pediatric ER. Do you want a sleep deprived or otherwise distracted employee at work. You certainly won't get their best. So try to be as accommodating and understanding as possible. Flexible hours and remote work help ease the stress caused by the unexpectedness of raising a newborn.

If you're not part of the solution, then you're part of the problem. Don't be part of the problem.

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

Thursday, January 12, 2023

Employers, for the love of God, please stop banning employees from discussing their wages


I came across the following recent post on the legaladvice subreddit.

Work for a brewery. GM and owner … informed everyone that we needed to sign a contract essentially stating that if ANY employee was found to be discussing wages, they would be terminated immediately.… As of last week, GM let everyone know that any employee who hasn't signed the paper will be looked at as a voluntary resignation. I should probably add that, of course, we have no union.

This is what we labor and employment lawyers call … what's the term … ILLEGAL

Tuesday, January 10, 2023

Settlement highlights wage and hour risks of remote work


The City of Cleveland has agreed to pay $50,000 to settle the wage and hour claim of a City Hall employee who claimed that she wasn't paid overtime while working from home during the Covid-19 pandemic.

Eve Bonvissuto, an assistant administrator in the city's public safety department's medical unit, had claimed $68,709 in overtime pay. She alleged that the city had misclassified her as exempt, and that city had no timecard or time-tracking system in place at the time for remote workers.

Monday, January 9, 2023

A supersized harassment settlement highlights the extra care employers must take when employing minors


How bad must sexual harassment be for an employer to settle a harassment case for $2 million? This bad.

AMTCR—the owner of 18 McDonald's franchises across California, Nevada, and Arizona—will pay $1,997,500 to resolve a sexual harassment lawsuit filed by the EEOC.

Friday, January 6, 2023

WIRTW #655: the “FTC did WHAT?!?!” edition


Yesterday, the FTC broke the employment law internet when it announced a Notice of Proposed Rulemaking that, if it takes effect, would ban all employment-related non-compete agreements on a national level.

The proposed rule, on which the FTC will accept comments for the next 60 days, would—
  • Provide that noncompete clauses are an unfair method of competition, and, as a result, would ban employers from entering noncompete clauses with their workers, including independent contractors; and
  • Require employers to rescind existing noncompete clauses with workers and actively inform their employees that the contracts are no longer in effect.

The FTC is also soliciting opinions on certain key issues, such as whether senior executives should be exempted from the rule, or subject to a rebuttable presumption rather than a ban; and whether low- and high-wage workers should be treated differently.

The agency has published a wealth of information, including the proposed rule itself and a fact sheet.

I have serious questions, specifically as to how a federal agency can enact a rule such as this, and whether a change of this magnitude must be enacted by law and not regulation. To me, this rule would go well beyond the FTC's rulemaking authority. Expect litigation to be filed in a business-friendly court, and for the Supreme Court to have the final say on this important issue. It is certainly far from a done deal that this proposed regulation will ever take effect. So keep those noncompete agreements in place, at least for now.

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

Thursday, January 5, 2023

While I was away, Congress pumped life into workplace rights of pregnant employees and new moms


Two laws — the Pregnant Workers Fairness Act and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act — took effect when President Biden signed the Consolidated Appropriations Act just before Christmas.

Wednesday, January 4, 2023

Just because the law may not require first aid training in your workplace doesn’t mean it’s not a good idea


There is no law or regulation that requires employers to have a person or persons trained to provide first aid in the workplace. Instead, OSHA's standards (here and here) merely require that an employer ensure prompt first aid treatment for injured employees, either by ensuring that emergency treatment services are within a reasonable proximity of the worksite, or by providing for the availability of a trained first aid provider at the worksite. 

Tuesday, January 3, 2023

Do you know what to do when an employee suffers a severe accident at work?


It was like nothing we've ever seen in a televised sporting event … and hope we never see again. 

During last night's Monday Night Football game, 24-year-old Bills safety Damar Hamlin suffered a cardiac arrest while making a hard but routine tackle. He received CPR on the field for 10 minutes in front of his teammates and a full stadium of fans before being transported by ambulance to a local hospital. Those 10 minutes almost certainly saved his life. He is currently sedated and listed in critical condition. We all continue to pray for his health and recovery.

Do you know what to do if one of your employees suffers a severe accident on the job?

Thursday, December 22, 2022

’Twas the Employment Law Night Before Christmas (2022 edition)


In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas … tweaked for 2022. 

As has been the case in years past, you can read my tale below. This year, however, you also get my holiday present of a download in booklet form, should you so choose.

To all of my readers, connections, and followers, new and legacy, thank you all for reading, commenting, and sharing throughout the year. Please have a happy and, most importantly, healthy and safe holiday season. I'll see everyone on January 3, 2022, with fresh content to kick off the new year.

Wednesday, December 21, 2022

Announcing the WINNER of the Worst Employer of 2022


The votes have been counted … and in the end it wasn't all that close. The WINNER of The Worst Employer of 2022 is

The Murder Enabler

Tuesday, December 20, 2022

Avoiding liability missteps with year-end bonuses


As employers plan for year-end bonus payments to employees, you need to learn the difference between nondiscretionary bonuses, discretionary bonuses, and special occasion bonuses (such as holiday or other gifts). Otherwise, you risk finding a Department of Labor lump of coal in your wage and hour stocking.

What's the difference between these three types of bonus payments?

Monday, December 19, 2022

Your religion isn’t a license to discriminate (but we may need to accommodate you anyway)


Pronouns confuse me. It's not that I want to misgender anyone. In fact, quite to the contrary, I try really hard to get people's pronouns correct when addressing them or speaking about them. To me, it's a simple matter of common decency. My efforts to get them correct, however, doesn't mean that they still don't confuse me. When I grew up, I learned that "they" refers to a group of people. Thus, when someone refers to someone else as "they," my brains says, "more than one." It's just difficult, but I still try to get it right.

Which brings me to the story of Vivian Geraghty, a middle school teacher. She is suing her former employer after being told either to use the preferred pronouns of her students or resign. She chose the latter, and claims in her lawsuit that the school's mandate discriminated against her Christian beliefs, which the school should have accommodated. Geraghty says the school instead should have explored potential accommodations such as moving her to another classroom or addressing students by their last names

Friday, December 16, 2022

WIRTW #654: the “gifts” edition


What's the best holiday gift you've ever given or received? With the holidays quickly approaching, this is the question Norah and I tackled on this week's episode of The Norah and Dad Show.

Find us on Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, Stitcher, internet, and everywhere else you listen to podcasts. And while you're in your podcast player of choice, hit the subscribe button to ensure that you never miss a future episode.

Before I sign off for 2022, I'll be back next week with two gifts for you — the winner of The Worst Employer of 2022 (Wed.) and this year's telling of The Employment Law Night Before Christmas (Thurs.).

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

Thursday, December 15, 2022

Reasonable accommodations are for actual disabilities, not unhinged conspiracies


If I've learned one thing from my 25+ years of practicing law it's that when a court describes your arguments as a "rambling and hyperbolic tirade," your goose is cooked. 

This is the story of Meltzer v. The Trial Court of the Commonwealth, by John Bello, Administrator

Wednesday, December 14, 2022

Today is your LAST chance to vote for 𝗧𝗵𝗲 𝗪𝗼𝗿𝘀𝘁 𝗘𝗺𝗽𝗹𝗼𝘆𝗲𝗿 𝗼𝗳 𝟮𝟬𝟮𝟮


If you haven't yet cast your ballot for The Worst Employer of 2022, time is quickly running out. Polls close at the end of today. 

In case you need a refresher on the seven finalists, here they are (in alphabetical order):

Tuesday, December 13, 2022

B-i-t-c-h spells dismissal


We're a team, we need to work together. Maybe we need to have a department meeting where we workshop with each other and really get to know each other. There's going to be days where you're going to be a B-I-T-C-H and there's going to be days where [the female servers] [are] going to be anxious and flip out and you need to be able to calm them down and get them what they need and not taking things personally so that they don't reflect of an image of you that may not be fully accurate.

That's what Tina Braunstein, a bartender working at The Plaza Hotel, claims one of her supervisors, Martin Mariano, told her during her 60-day review. When the hotel terminated her employment shortly thereafter and during her probationary period, she pointed to Mariano's spelling of "b-i-t-c-h" as evidence of his sexually discriminatory motive.

Monday, December 12, 2022

A tale of two employee nondisclosure agreements


"It was the best of times, it was the worst of times…." This is perhaps the most famous opening line in the history of literature, A Tale of Two Cities, by Charles Dickens. It's also an apt description of how two tech giants—Apple and Twitter—recently handled the issue of employee nondisclosure agreements.

Friday, December 9, 2022

WIRTW #653: the “playlist” edition


Last Friday, after sharing the Old 97's new holiday classic from the Guardians of the Galaxy Holiday Special, I asked LinkedIn for their favorite holiday songs. My LinkedIn community delivered in a major way. So today, I am thrilled to be able to share with you Jon Hyman's LinkedIn Crowdsourced Holiday Music Playlist Extravaganza

It's 42 songs spread over 2 hour, 27 minutes of eclectic rock, punk, country, pop, rap, and classical holiday standards and songs that will now be standards for your holidays. 

It's available to stream on Apple Music and Spotify. Shuffle, repeat, and jingle all the way through the holiday season.






If you haven't already voted for The Worst Employer of 2022, what are you waiting for? Polls remain open until 14-Dec. 




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

Thursday, December 8, 2022

Musings on dead dogs and terminated managers


We are no longer taking ANY EXCUSE for calling off. If you're sick, you need to come prove it to us. If your dog died, you need to bring him in and prove it to us. If it's a "family emergency," too bad. Go work somewhere else.

That was part of a written message an Olive Garden manager in Kansas recently delivered to his staff. The message that Olive Garden corporate delivered to that manager — "You're fired."

Wednesday, December 7, 2022

What should you do when the DOL shows up at your door?


"I'm an investigator with the Wage and Hour Division of the Department of Labor. I'm here to conduct an investigation into how your pay your employees." He then shows you his badge, and asks to see the following:

Records showing the business's annual dollar volume of transactions in in interstate commerce to establish that the DOL has jurisdiction; and

Payroll and time records for the past three years. 

With that, you're off the races in a DOL wage and hour investigation. The investigator will seek to determine if you've properly classified your employees as exempt or non-exempt, and if you've met your minimum wage and overtime obligations.

What do you do now?