“Entitlement to FMLA leave” is not a prerequisite to an FMLA retaliation claim

The 6th Circuit revived the FMLA retaliation claim of an attorney fired immediately after she requested unpaid leave to care for her two-year old child at the start of the Covid-19 pandemic.

In mid-March 2020, Polina Milman, an attorney working at Fieger & Fieger PC, requested permission first for unpaid time off, and then to work remotely, to care for her two-year-old son who was exhibiting Covid symptoms and was already vulnerable because of a previous bout of RSV. The firm initially granted her WFH request. On her second remote workday, however, she received a termination letter, stating that she had refused to work because her "child had a cold" and "it was clear [she] had quit."

Union avoidance vs. union busting

"A company that opposes a union organizing and presents both sides of this complex issue is 'union busting.'" This is what one commenter wrote in response to my recent post about union organizing at Creature Comforts Brewing Co.

I could not disagree more. 

There is vast, substantive, and significant difference between union avoidance and union busting.

Lessons from coaching high school mock trial

When you try a case, there’s not much within your control. You can’t control the judge. You can’t control the jury. You can’t control your opposing counsel. Sometimes you can’t even control your own witnesses. But the one thing you can control is how well prepared you are, and you are so well prepared.

For the past four months I’ve been volunteering as one of the legal advisors for the Lake Ridge Academy Mock Trial team. That’s what I told my team the evening before their opening round of competition last Friday.

WIRTW #658: the “Toad Jesus” edition

On the latest edition of The Norah and Dad Show, we discuss Freckles, Norah's newly rescued-from-the-backyard pet toad, who may be sleeping or may be dead. Welcome to the first cliffhanger in the history of our podcast. Find us on Apple Podcasts, Spotify, Google Podcasts, Amazon Music, Overcast, your old-fashioned browser, and everywhere else podcasts are available.

Here's a small taste.

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

Update on Creature Comfort Brewing’s union organizing

Last week I reported that the employees of Creature Comforts Brewing Co. formed their own independent labor union, the Brewing Union of Georgia (aka BUG) and announced their intent to unionize their workplace.

A lot can happen in a week.

Offensive social media posts doom airline employee’s discrimination claim

"If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves."

"Have you lost your cotton pickin' mind?"

"Too many [blue-eyed people] are reproducing with Brown Eyed People."

Those are three examples of Colleen Koslosky's (a former American Airlines customer service agent) Facebook posts that went viral and caused her employer to fire her.

She claimed the airline fired her because of her disability — nerve damage and edema in her leg — based on its prior denial of a reasonable accommodation. The employer, on the other hand, argued that it properly fired her after Koslosky's posts went viral, customers complained, and employees refused to work with someone they believed was "racist." 

The 3rd Circuit Court of Appeals had little difficultly affirming the dismissal of Koslosky's lawsuit.

She … claims that a male American customer service employee who was not disciplined for his social media posts disparaging Trump voters — calling them "ignorant rednecks" and "uneducated racist white people." Koslosky does not argue American management knew about her colleague's inflammatory social media posts. This is dispositive. …

As Koslosky points to no evidence of pretext, we are thus left with one conclusion: American fired her because her racially insensitive social media posts violated its policies and generated an outcry from employees and customers alike. Because this is a legitimate justification for her ouster, we are not persuaded that the company violated any law here.

This employee had no business keeping her job or winning a discrimination lawsuit. Employees are absolutely responsible for what the post on their personal social media, and need to understand that their employer can, should, and will hold them accountable when warranted. In this case, it was warranted. 

The BIG risk of misclassifying employees as independent contractors

A national auto parts distributor has reached a settlement with the Department of Labor to pay a total of $5.6 million in back pay and liquidated damages (plus interest) to 1,398 drivers misclassified as independent contractors. The payments to the individual drivers are as low as $40 and as high as more than $120,000.

WIRTW #657: the “Let me buy you a beer” edition

From Jan. 30 – Feb. 1, the Ohio Craft Brewers Conference is taking place in Cleveland. My firm and I are playing a prominent role. 

• On Jan. 30 we are sponsoring the opening reception at Forest City Brewery, from 5:30 - 7 pm. If you've never been, it's an amazing space, a restored 19th century brewery building. It has the oldest (and, imho, most beautiful) beer garden in Ohio, and one of the oldest in the nation … although it might be a tad cold to fully enjoy it. Forest City also produces some of the best beer in NE Ohio — I recommend the Opening Day IPA and the Hootenanny (a kölsch). Finally, Apostle Jones, a local rock and soul band, is providing the musical entertainment. They are not to be missed. Look for me at the Wickens Herzer Panza table (where we'll have some nice giveaways) or milling about the brewery. Stop and say hi and I'll be sure to buy you a beer. This is an open event and you do not have to be registered for the conference to attend.

• On Feb. 1, at 11 am, I am speaking in the Fundamentals Room on Crafting Your Craft Brewery’s Employee Handbook. 

I hope to see you there. Cheers!

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

What does Creature Comfort’s union announcement mean for your craft brewery?

The employees of Creature Comforts Brewing Co. recently held a rally to announce their intent to form a labor union. They also announced the formation of the Brewing Union of Georgia, an independent union created by the brewery's employees with the stated goal of spreading their movement across their state. Despite the union's "independence," it has received assistance and guidance from assistance from the United Campus Workers of Georgia and the Workers Center at the Economic Justice Coalition.

This is HUGE news for the craft beer industry.

Dress codes and gender biases

Women are prohibited from showing their bare arms.

Women are required to cover their dress with a second layer.

These are two new rules the Missouri House of Representatives enacted for its current term. It did not enact any new dress code policies for men. That's a big discriminatory problem. 

Dr. King’s struggle has not ended

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”

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:

• When an Employee Returns from FMLA Leave, Don't Be This Employer — via Jeff Nowak's FMLA Insights
• Maternity Leave Is Not "Sitting Around on Your Ass" — via Suzanne Lucas at Inc.com
• Firm Parts Ways with Lawyer Who Called Maternity Leave "Sitting on Your Ass", After Text Calling Maternity Leave "Sitting on Your Ass," Law Firm Looks oo Sit on Its Ass on Response, and "Collecting Salary from the Firm While Sitting on Your Ass" Is Certainly ONE Way for a Senior Lawyer to Describe Maternity Leave — via Above the Law
• Text accusing exiting lawyer of sitting on her keister during maternity leave leads to second departure — via ABA Journal
• Cleveland law firm, attorney criticized after social media post shows insulting text sent to attorney who left firm after maternity leave — via Cleveland.com

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.

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. 

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.

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.

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.

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.

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. 

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?

’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.