It’s illegal for gay people to discriminate against straight people … just not on these facts in this case

There is no such thing as "reverse" discrimination. Discrimination is discrimination, whether the victim is, for example, Black or white, female or male, gay or straight. When the employee claiming discrimination is in the majority, however, in the 6th Circuit they must not only show disparate treatment, but also must show "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority."

Which brings us to the story of Marlean Ames, a straight woman who sued the Ohio Department of Youth Services for sex discrimination under Title VII claiming that her lesbian supervisor discriminated against her because of her sexual orientation. Ames claimed that OHYS passed her over for a promotion, demoted her, and promoted a gay man to her former position.

VOTE for the Worst Employer of 2023

It's the most wonderful time of the year. I've made my list. I've checked it twice. Now it's time to find out who's naughtiest and not very nice. It's voting time for The Worst Employer of 2023.

I've culled my list of 10 nominees down to the worst 7 as finalists. 

It’s called family and medical LEAVE for a reason.

According to Above the Law, however, one Biglaw firm recently reminded its employees that they need to check their daily emails while out on leave.

There is ample time in the day for everyone on leave to monitor their emails daily and to forward any emails requiring attention to the appropriate members of the litigation team. If you are someone who has not been monitoring your emails daily, please do so as soon as possible. If, for any reason, you are unable to perform this minimal task on a regular basis, please advise.

This is not just a terrible employee relations practice, it's also potentially illegal.

WIRTW #697: the “independent study” edition

Younger Jon would have never believed that Older Jon has two children in private school. I'm a proud survivor of the School District of Philadelphia, which provided me a high-quality education that positioned me well for college and career.

And yet, here I am with two children attending a K-12 independent private school. It's the best possible choice I could have made for either of them. Here's one example as to why.

My daughter, Norah, plans to major in early childhood education in college in preparation for a career as an elementary school teacher. Last year, she mentored in the Lower School by helping out in the 2nd and 3rd grade classrooms during her free periods. This year, however, a modernization of the school's daily schedule eliminated that opportunity.

Instead of giving up something she loves (working with the younger children), she pitched to the Upper School administration the idea of an independent study for the first semester of her senior year. The school wholeheartedly agreed.

For the past three-plus months, Norah independently researched early childhood education and development (specifically, the impact of tone of voice in the classroom), compiled that research into a paper, and designed and taught a lesson plan for the third grade.

Earlier this week, Norah presented her independent study to the Lower School faculty. Watching her professionally and confidently present her research and classroom experience was one of my best parental moments. It's a testament to her and the education she has received for the past 13 years at Lake Ridge Academy.

Norah is going to make a wonderful elementary school teacher, and I couldn't be prouder.

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

Does it matter where you place an employee’s lactation space? (tl;dr: yes.)

An employee works as a speech-language pathologist in a large, metropolitan school district, traveling between two elementary schools and a high school. After giving birth, she requests a private space for lactation within each assigned school. The school district agrees, but the private space it provides to her in the high school was on a different floor than her work area.

Is this legal? Did this employer meet is legal obligations regarding the provision of a "private lactation space?"

This case perfectly illustrates religious accommodations post-Groff

Elimelech Shmi Hebrew is a devout follower of the Hebrew Nation, a religion that requires its followers to keep their hair and beard long — a vow he has kept for over two decades.

The Department of Criminal Justice has a grooming policy that prohibits male officers without medical skin conditions from having beards and in any case from having long hair.

Hebrew applies for a job as a corrections officer with DCJ. What wins out — Hebrew's religion or DCJ's grooming policy?

Craft beer isn’t facing an apocalypse … but the industry is changing

In addition to running the employment & labor practice at Wickens Herzer Panza, I also run our burgeoning craft beer practice. Which is why a recent article in Paste Magazine — "For Many Craft Breweries, the Apocalypse is Now" — caught my attention.

Here's the author's thesis:

The tragic breaking point for major brewery closures is no longer "coming soon." It's a macabre event that has been framed as something perpetually on the horizon for years, but there's no use in denying it anymore–the great die-off is here. It's now. The culling of the herd is underway in 2023, and simply making great beer is no guarantee of survival.

I wholeheartedly disagree. I do not believe that craft beer is facing an "apocalypse." 

I do believe, however, that a combination of the lingering impact of Covid (staffing shortages, rising inflation, and higher interest rates) plus changing consumer tastes means that craft beer's salad days are over.

So, what does this mean for our industry?

WIRTW #696: the “thankful” edition

Next week we celebrate Thanksgiving, my favorite holiday of the year. There will be turkey, stuffing, wine, and as many pies as there will be people at our feast (which, for the record, is 32 at last count).

None of that, however, tells the story of why Thanksgiving is my favorite holiday. That reason is family. It's the one time of the year when my entire Ohio family is guaranteed to be together in one place at one time. Laughs and good times are guaranteed.

Some years are more challenging than others. This year brought us struggles, loss, and a house flood. It’s important that Thanksgiving comes when it does — close to year’s end, but before we get lost in the hustle and bustle of the holiday season. It’s a day to pause and reflect upon all for which we are thankful.

And I’m thankful for a lot, which starts and ends with my family (2-legged and 4-legged). At the end of the day, that’s all that matters.

Everyone have wonderful Thanksgiving.

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

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Do you understand the rules for paying employees for commuting time?

A technician claims her employer owes her pay for time spent traveling to the office to pick up materials on the way to the airport for a flight to visit a customer. According to the employee, the employer only begins paying at the departure time of the scheduled flight.

Is this employee correct? Must an employer pay for that travel time? Is she owed wages for time spent commuting to the airport (including the time spent traveling to the office to pick up the samples)? Or does the law permit the employer to start the pay clock when she boards the flight?

The most metal employment law update ever!

Two of the most famous bands in the history of heavy metal are each facing lawsuits from former tour workers.

The family of a Kiss guitar tech, who died while quarantining in 2021 after contracting Covid while on tour with the band, is suing the band for wrongful death. According to a prior investigation by Rolling Stone, Kiss allegedly maintained lax Covid protocols on the tour in question — including a lack of testing and lots of crew members falling ill — that contributed to the roadie's death.

Meanwhile, an ex-tour photographer is suing Guns N' Roses for copyright infringement and sexual harassment. She claims that the band claimed ownership over numerous of her photos and used them in print and digital media, ad campaigns, and other outlets. She also alleges that the band's manager made "numerous unwelcome sexual advances" toward her and "committed consistent pervasive sexual harassment" in a "workplace environment that was completely devoid of any sexual harassment policy, sexual harassment handbook, sexual harassment training, and human resource department."

If you’re going to change an employee’s time sheet, make sure it’s an accurate change

🟩 LEGAL: Disciplining or firing a non-exempt employee who works unauthorized overtime.

🟥 ILLEGAL: Failing to pay a non-exempt employee for all hours worked, whether authorized or unauthorized.

🟩 LEGAL: Altering a non-exempt employee's time sheet so that it accurately reflects the actual number of hours worked.

🟥 ILLEGAL: Altering a non-exempt employee's time sheet to reflect a flat 40 hours per work week, no matter how many hours the employee actually worked.

A lawsuit recently filed against Liberty University will test each of these legal principles.

WIRTW #695: the “cover” edition

Earlier this week, I used the song "Pass the Kutchie" to illustrate Ohio's new recreational marijuana law. Some commenters were quick to point out that the song is called "Pass the Dutchie," not "Pass the Kutchie." Except it's not. "Pass the Kutchie" is a 1981 Jamaican reggae song by the Mighty Diamonds about Rastafarian cannabis pipes. One year later, Musical Youth covered that song and made it famous. Because they were all children, however, they replaced the song’s drug slang with “dutchie,” a food reference.

Coincidentally, this week the AV Club published lists of the 25 best and 25 worst cover songs of all time. All of this got me thinking about my favorite cover songs. Here are my top 5:

1. The White Stripes  "Jolene"
2. Sinead O’Connor — "Nothing Compares 2 U"
3. Johnny Cash — "Hurt" 
4. Janis Joplin — "Me and Bobby McGee"
5. Talking Heads — "Take Me to the River"

What about your favorite covers? Head over to LinkedIn and drop a comment to let me know.

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

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Ohio voters decide to pass the kutchie on the left hand side

By a margin of 57% to 43%, voters legalized recreational marijuana. As a result, recreational cannabis will become legal in the Buckeye State on December 7, 2023.

Employers have lots of questions about how to handle this change. Here are answers to the top 5 questions I anticipate receiving over the coming days, weeks, and months.

DEI programs continue to be a lawsuit target

Major League Baseball. NASCAR. Starbucks. McDonald’s. Morgan Stanley, American, United and Southwest Airlines. America First Legal, a conservative group led by Stephen Miller, has targeted each of these for their “illegal” practices of hiring non-Whites and females.

In its most recent letter to the EEOC, urging it to investigate American Airlines, AFL cited the following as evidence of “unlawful employment practices” —

Your business is not a charity

Your customers are not your bank. It’s not their job to bail you out from poor business decisions.

I’ve been thinking a lot about this idea as I’ve been following the recent news from R. Shea Brewing.

Here’s the Cliffs Notes version of what’s happened.

From 2015 - 2019, R. Shea was a small local brewery. In 2019, it opened a much larger, 60,000 square-foot second location, which enabled it to significantly expand its production and operations. That expansion, however, also included a vast expansion of its debt, to the tune of a $2 million SBA loan. A combination of the lingering impacts of Covid, rising wages and production costs, and skyrocketing interest rates have created a situation in which R. Shea in now unable to service that debt.

As a result, it just launched a GoFundMe campaign to raise … wait for it … $2.3 million. Thus far, it’s raised approximately $17,000.

WIRTW #694: the “trick-or-treat” edition

I have a bone to pick with one of my neighbors. When my kids returned home on Tuesday night and opened their trick-or-treat bags, they found this DVD.

Your religion is your religion. I don't tell you how to practice yours, and in return I expect you not to tell me or my children how to practice ours. I don't need to tell you how awful the world is right now about religion. The last thing we need is neighbors proselytizing neighbors. Halloween isn't difficult. Kids ring doorbell. Door opens. Candy goes into bag, bucket, or other candy-carrying vessel. Let's keep it that way.

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Here's what I read (and heard) this week that you should read, too.

Maybe don’t forge texts if you want to win a lawsuit?

Andrea Rossbach, a registered nurse working at Montefiore Medical Center, claimed that her supervisor, Norman Morales, sexually harassed her. In support of her claim, she relied on a series of sexually harassing text messages Morales allegedly sent her, including messages in which he called her "hot," asked her to send him a photo of a G-string he gifted her.

Rossbach's claim, however, had one huge problem — the 2nd Circuit Court of Appeals concluded that those text messages did not exist. She created them after the fact to use as evidence in her claim.

At her deposition, Rossbach testified that she could not produce screen shots of the text messages because she had initially received them on an old iPhone with a badly cracked screen, and that instead she had to take a photo of the texts with a newer iPhone X, which she had also later disposed of. 

Does your workplace have a written AI policy?

The White House has unveiled the first-ever executive order on artificial intelligence (AI).

According to the White House, "The Executive Order establishes new standards for AI safety and security, protects Americans' privacy, advances equity and civil rights, stands up for consumers and workers, promotes innovation and competition, advances American leadership around the world, and more."

NLRB publishes (yet another) new joint employment rule

If at first (or second, or third…) you don't succeed, try, try again. That certainly seems to be the NLRB's mantra as it relates to its joint employment rule.

Joint employment is when one employer is responsible for the legal sins of another because of a commonality of employees. Under the standard newly announced by the NLRB, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees' following terms and conditions of employment:

WIRTW #693: the “tough out” edition

If you've been following along these past few weeks with the trials of the Lake Ridge Academy soccer team, I have some sad news to share. Earlier this week they fell 2-0 in the district semifinals to a quality opponent, ending their season. It was a hard-fought match, scoreless for 65 minutes. There were lots of tears in my car after the game. The team set a goal, of which they fell a couple of games short. That said, it was the best soccer season this team has had in 15 years.

Donovan had an amazing experience. He fully embraced being one of the "soccer boys," and is already thinking about his sophomore season. "220 days until practice starts," he told me the next morning. He's says he's going to start training ASAP with a personal goal of improving and gaining more playing time next year.

As for me, I've never been a sports parent before. I've always been a music parent (which y'all know I love). I'm happy to report that being a sports parent is pretty damn great. I loved everything about this team and this season. The wins and losses were the least import part. More importantly, I loved watching Donovan embrace being part of a team and the team embracing him as one of their own. Like D-man, I'm already ready for the 2024-25 season. 

Go Royals!

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