Tuesday, March 7, 2023

The 3rd nominee for the “Worst Employer of 2023” is … the awful accommodator

You'd think a nonprofit that provides programs for people with disabilities to build self-reliance through employment services would know a thing or two about the ADA's requirements for reasonable accommodations.

Then there's Innovative Services NW, which the EEOC just sued for it's failure to accommodate a janitor suffering from a degenerative hip disorder. He had asked for a stand-up vacuum to push instead of a backpack vacuum to wear. Not only did ISNW not accommodate him, but it also fired him for his inability to wear that backpack vacuum.

Friday, March 3, 2023

WIRTW #663: the “growth” edition

Growth comes in many forms.  For my son, it came in the form of a daily injection of growth hormones since the age of seven. 

Because of his Noonan Syndrome, he's genetically predisposed to being short statured. That fact that I'm 5' 7" and his mom 4' 11" also didn't help his cause. Donovan was barely on the growth chart, and his doctors projected his full adult height at a mere 5' or 5' 1". Shortly after his 7th birthday he took his first dose of growth hormones, a daily injection. It was his decision after he was deemed not tall enough for a new bike he wanted. His endocrinologist at the time thought my wife and I were out of our minds for letting Donovan decide if and when to start treatment. To us, however, if he's the one taking the needle, he should have some say in the if and the when. 

Earlier this week Donovan took his final dose, a decision made by his current endocrinologist that he's received all of the possible medical benefit from the more than 2,700 injections he took over nearly eight years.

He's now close to 5' 7", with another inch or two still to grow. That's what I call growth.

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

Thursday, March 2, 2023

Class action lawsuit highlights the risk of AI in hiring and other employment decisions

Yesterday, news broke of a class action lawsuit filed against HRIS provider Workday claiming that its artificial intelligence systems and screening tools disproportionately and discriminatorily disqualify Black, older, and disabled job applicants. 

The named plaintiff, Derek Mobley, is a Black man over the age of 40 who suffers from anxiety and depression. He alleges that he applied for 80-100 positions since 2018 that use Workday as a screening tool and has been denied every time despite his qualifications. 

Mobley claims that Workday's artificial intelligence unlawfully favors applicants outside of protected classes through its reliance on algorithms and inputs created by humans conscious and unconscious biases. 

Wednesday, March 1, 2023

Tweets, honest beliefs, and terminations

@realDonaldTrump I am the VP of HR in a comp outside of philly an informal survey of our employees shows 100% AA employees voting Trump!

On July 24, 2016, Kathleen Jungclaus — the 55-year-old then-VP of HR for Waverly Heights Ltd. — tweeted the above. A couple of months later, someone anonymously notified Jungclaus's superiors of the tweet. When confronted, Jungclaus initially provided shifting explanations of the tweet's origins but ultimately admitted posting it. As a result, Waverly fired her for violating its social media policy (which she had drafted). After Waverly replaced her with someone 12 years her junior, Jungclaus sued for sex discrimination, age discrimination, retaliation, and hostile work environment.

Tuesday, February 28, 2023

Do your business’s philosophy, values, and vision match your mission statement

On this week's episode of The Start A Brewery Podcast, I join hosts Laura Lodge and Candace Moon, along with guests Ren Navarro (the owner/operator of Beer. Diversity., and my co-presenter at the upcoming Craft Brewers Conference) and Jason Gladfelter (of Vombuds, LLC) to discuss how a business's mission statement should align with and reflect its philosophy, values, and vision. 

We discuss the important questions of "Who are you?" and "What do you collectively as a team and a business represent?" While we answer these questions in the context of starting a brewery, the issues we discuss and the lessons we teach are applicable to any business of any size, startup or established, small or big.

Monday, February 27, 2023

The 2nd nominee for the “Worst Employer of 2023” is … the child labor abuser

According to the Department of Labor, Packers Sanitation Services, the country's largest food safety sanitation services, employed at least 102 children — ranging in age from 13 to 17 — in hazardous occupations in meat processing facilities across eight states.

The hazardous conditions to which Packer required the children to be exposed included working with hazardous chemicals and cleaning meat processing equipment including back saws, brisket saws and head splitters. At least three of the children suffered injuries while illegally working for Packer.

Friday, February 24, 2023

WIRTW #662: the “platform” edition

Platform Beer Co. shook up the local beer industry Wednesday afternoon when its owner, Anheuser-Busch, confirmed that it had permanently closed the Cleveland brewery (along with its taproom and other related businesses) that it had acquired less than four years ago. All of its employees have lost their jobs as a result. 

Some backstory. Platform was a Cleveland craft beer success story. It opened its doors in 2014, and within five years had grown large enough to attract A-B as a buyer. Now, it no longer exists (except for the three IPAs that A-B says it will keep making).

While I have no inside knowledge as to what happened at Platform, I can offer an educated guess. Craft beer consumers are passionate about drinking craft beer. One of the key components to any craft brewery is its independence. Once A-B acquired Platform, it ceased being independent; it instead became part of A-B's $54 billion corporate behemoth. As a result, and no matter the quality of its beers, Platform lost its allure to the craft beer consumer. Without that attraction, sales dipped, making it ripe for the its tragic fate.

What's unfortunate is that a lot of good people lost their jobs as a result. Thankfully, our local beer community is collegial and collaborative. For example, Saucy Brew Works is offering any former Platform employee a daily free meal and pint, along with a job application, through the end of March. That's how you pay it forward. If you're a brewery looking to hire, there are lot of people in N.E. Ohio looking for work.

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

Thursday, February 23, 2023

NLRB bans non-disparagement and confidentiality covenants in severance agreements. What now?

Is it time to rip up your stock severance agreement? Consider the following two clauses, which I bet your standard agreement contains in some form.

Wednesday, February 22, 2023

Do you know what to do if employees strike?

Labor strikes by employees were up a shocking 52 percent in 2022 as compared to 2021. That's according to Cornell-ILR Labor Action Tracker Annual Report. Employee collective work stoppages are on the rise, and there is no indication of them abating any time soon.

Do you know what to do if your employees walk off the job? Here are 10 dos and don'ts.

Tuesday, February 21, 2023

The 1st nominee for the “Worst Employer of 2023” is … the foul-mouthed retaliator

"I'm going to fire all the motherf---ers!" 

That's the threat Department of Labor accused Tamesha Porter, the sole owner and operator of Safe Haven Assisted Living of Haslett, of making to her employees after the Department of Labor started investigating its wage and hour practices.

Friday, February 17, 2023

WIRTW #661: the “crafty” edition

Earlier this week I had the pleasure of presenting, Crafting Your Craft Brewery's Employee Handbook, a webinar jointly sponsored by Craft Beer Professionals and Start A Brewery. (Thank you, Andrew Coplon and Laura Lodge, for asking me to present 🍻) 

In 60 minutes, I discussed why every business needs an employee handbook and ran through every policy a craft brewery needs in its handbook. While the presentation is craft brewery focused, any business of any size will find most of the information applicable. I guarantee you'll learn something.

You can watch the entire webinar here.

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

Thursday, February 16, 2023

Do you know the rules for paying remote workers for “downtime”?

Every 10 minutes at some random point that she couldn't anticipate, the company took photos of her and her work, a screenshot of whatever she was working on, and a photo of her face. And they were doing that to verify whether or not she was working.… The company was using that to pay Carol and the other workers only for the minutes when they appeared active.

If she was clicking away at a spreadsheet, doing demonstrable work, she was fine. She would be paid for that 10-minute increment. But as soon as she got a cup of coffee or answered the doorbell or went to the bathroom, she risked not being paid for that time.…

[E]ven if she had worked for 9 and 1/2 minutes out of 10 minutes, if that screenshot showed her inactive, if she was gone or distracted for that 30 seconds, she wouldn't be paid for that increment.

That's from The New York Times, describing the latest employer trend of monitoring remote workers and only paying them for the time during which the performance of actual work could be verified. And, if those remote workers happen to be nonexempt, that practice is highly illegal.

The Department of Labor just issued a Field Assistance Bulletin reminding employers on the proper payment of remote workers under the Fair Labor Standards Act.

  • The FLSA requires employers to pay nonexempt employees for all hours worked.
  • "Hours worked" is not limited solely to time spent on active productive labor but also includes time spent waiting or on break.
  • Short breaks of 20 minutes or less (e.g., to go to the bathroom, get a cup of coffee, let the dog outside, or stretch one's legs) are generally counted as compensable hours worked.
  • Longer breaks "during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes are not hours worked."
  • These rules apply regardless of whether the work is performed at the employer's worksite, at the employee's home, or at some other location away from the employer's worksite.

In other words, even if you catch your nonexempt employees "not working" during the workday, if a break lasts 20 minutes or less you still must pay them. It's non-negotiable under the FLSA. (Exempt employees are paid a salary which becomes owed in full as soon as he or she works just one minute in a work week.)

If you discover an employee abusing paid breaks or their salary status, your remedy is discipline or termination, not withholding wages.

Wednesday, February 15, 2023

No privacy for drug-test pees

Someone on Reddit asks: Is it legal for my new employer to watch my pee for a drug test?

I can’t speak for every state, but in my state the answer is an unequivocal “yes.” It’s perfectly legal to require the direct observation of an employee peeing for a new hire or workplace drug test.

Tuesday, February 14, 2023

Employee harassed after coming out at work loses harassment lawsuit

After an employee comes out at work as gay, he alleges that co-workers left him pink nail polish, a nail file, and bath bombs, that someone posted Bible verses on his desk, and that he was moved to an isolated corner of the office. 

Based on these facts, the 6th Circuit Court of Appeals affirmed the dismissal of the employee's sexual harassment claim.

Friday, February 10, 2023

WIRTW #660: the “Freckles” edition

Two weeks ago I shared the story of Freckles, the toad that my daughter rescued from our backyard. On our podcast — The Norah and Dad Show — we left you with a cliffhanger. Did Freckles live or die. On this week's episode we share Freckles' fate, along with the fate of Norah's high school mock trial team.

You'll find The Norah and Dad Show on Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, in your web browser, and everywhere else podcasts are available.

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

Thursday, February 9, 2023

Seminars and Webinars: Employee Handbooks

When was the last time you reviewed and updated your business's employee handbook? 

If your answer is, "I don’t know," "Longer than a year ago," or "What's an employee handbook and why do we need one?" then we need to talk.

The reality is that you need a customized and updated handbook that documents the guidelines and expectations between your organization and your employees. If you do not pay careful attention to your handbook's contents, you might violate the law, alienate employees, and invite costly and time consuming lawsuits.

Lucky for you, you have two upcoming opportunities to hear me speak on this important topic.

Wednesday, February 8, 2023

Post-termination diagnosis is insufficient to support ADA claim

Haley Hrdlicka, a 30-year General Motors employee, began having attendance problems after transferring to its Design Academy. Serious attendance problems. Dozens of absences in the four-month period from May – August 2019. A less-than-glowing performance review followed by an "Attendance Letter" (essentially a final written warning) did nothing to improve her attendance. So GM fired her. 

She unsuccessfully appealed her termination through GM's internal grievance process. During that process Hrdlicka was diagnosed with Persistent Depressive Disorder and a brain tumor. She then sued GM for disability discrimination stemming from the after-the-fact diagnosis.

Tuesday, February 7, 2023

What does an employer have to do to lose $366 million?!

$366 million dollars. That's how much a jury awarded Jennifer Harris, a Black sales manager targeted and then fired by FedEx after she complained to human resources that her boss discriminatorily demoted her. 

That's $1.16 million in compensatory damages and $365 million in punitive damages. 

The trial judge recently rejected FedEx's motion to reduce the punitive verdict as excessive and a violation of its due process rights.

Monday, February 6, 2023

The problem isn’t “fake” managers, it’s the poorly named “administrative” exemption

"Would you rather be a front-desk clerk or 'Director of First Impressions'? A barber or a 'Grooming Manager'?" CBS News posed this question, and concluded that employers use these fancy, inflated titles to avoid paying employees in full for their overtime work. 

"Title inflation," the article argues, is being used to deny overtime and steal wages from otherwise deserving employees.

Friday, February 3, 2023

WIRTW #659: the “99 problems” edition

I got 99 problems, but being a podcast guest ain't one.

I love the People Problems Podcast so much. And they must love me, too, since this is my third appearance as a guest.

This week's episode is all about dating at work. The conversation goes all over the place, including to a mafia bar in Chicago. You'll have to listen to the episode to hear all about the craziest experience of my legal career.

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