Ohio Employer Law Blog

WIRTW #792: the 'CBC' edition

2026-03-06T06:54:00.001-05:00

Happy staff brew better beer.

It's obvious when you think about it.

A team that feels respected, valued, and heard shows up differently. They care more. They collaborate better. They solve problems faster. And yes—the beer, the taproom experience, and the business all benefit.

Yet for an industry built on passion, craft, and community, too many breweries still struggle with workplace culture.

Long hours. Thin margins. High stress. High turnover.

It's easy to focus all your energy on recipes, distribution, and survival while overlooking the single most important ingredient in your brewery: your people.

And when that happens, the consequences show up fast—burnout, disengagement, toxic dynamics, and constant turnover.

Replacing an employee isn’t cheap. Depending on the role, it can cost up to 50% of that employee's annual salary to recruit, hire, and train someone new. In breweries—where production and taproom roles already see high turnover—that cost adds up quickly.

But here's the good news: building a great workplace culture doesn't require a massive budget or a full-time HR department.

It requires intention.

That’s exactly what I'll be talking about at the Craft Brewers Conference this April in Philly.

Happy Staff, Better Craft: Brewing a Better Workplace
📅 Wednesday, April 22
⏰ 10:15–11:15 AM
📍 Room 201-AB

In this session, we'll dig into the connection between employee engagement and brewery success—and why culture isn't just a feel-good concept, but a real business strategy.

We’ll talk about:

Why happy employees make better beer (and better customer experiences)
How better communication can prevent most workplace conflicts before they start
Simple, low-cost ways to recognize and reward your team
How to design brewing and taproom jobs people actually want to stay in
What leadership looks like when you lead like a worker instead of a boss

My goal isn't theory. It's practical tools.

The brewing industry is full of passionate people who love what they do. But passion alone isn't a workplace strategy. If breweries want to thrive long term, they have to invest in the people who make the beer, pour the pints, and represent the brand every day.

Great breweries don't just brew great beer.

They build great workplaces.

If you're heading to CBC this year, come join me. I'd love to see you there—and talk about how happier teams can help build stronger breweries.

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

EEOC Warns 500 Companies Over DEI Compliance: What Your Business Must Review Now — via Suzanne Lucas at Inc.com

Mechanical Bull Bartending and the Age Bias Lawsuit That Never Got Off the Ground — via Eric Meyer's Employer Handbook Blog

There's No Citation System for Practitioner Publishing. That's a Problem. — via Real Lawyers Have Blogs

How should HR handle politics in the workplace? — via HR Dive

How should we handle birthdays at work? — via Ask a Manager

Law School Tells Students, 'You MUST Be Aligned Politically with President Trump,' For Summer Job — via Above the Law

Tilray Acquires BrewDog for Pocket Change — via Beervana

Drugs, Guns & OnlyFans: Why You Should Monitor Online Misconduct — via TalentCulture

A dollar saved, a tip credit destroyed

2026-03-05T09:54:00.001-05:00

Sometimes a case turns on complex legal questions or convoluted fact patterns. Other times it turns on something far simpler—like a single dollar.

In Dugan v. Reservoir Restaurant Inc., a $1 deduction just cost a restaurant its entire tip credit. A federal court handed the plaintiffs (a class of servers) a summary judgment win because their employer deducted $1 per shift from their tips to cover items like silverware, pens, and similar supplies.

Here's the setup. The restaurant paid its servers the tipped minimum wage of $2.13 per hour, relying on the FLSA's tip credit to bridge the gap to the $7.25 federal minimum wage. But every shift, the restaurant also took $1 directly from the servers' tips to reimburse the business for operating supplies.

That's where things went sideways.

The FLSA allows employers to count certain "facilities" toward wages—think meals or lodging. But the law draws a bright line: employers cannot shift the ordinary costs of running the business onto employees.

Silverware? Pens? General restaurant supplies?

Those are the employer's costs.

The court had little trouble concluding that forcing servers to cover those expenses violated the FLSA's tip credit rules. And when an employer violates those rules, the consequence is severe: the tip credit disappears entirely.

That means the restaurant must now pay the servers the full minimum wage for every hour worked, not the tipped rate. Because the servers were paid only $2.13 per hour, the employer now owes $5.12 per hour in back wages—plus an equal amount in liquidated damages.

All because of a $1 deduction.

The lesson for employers of tipped workers is straightforward. If you want to take advantage of the tip credit, tipped employees must keep their tips—period, with very limited exceptions. Even small deductions tied to ordinary operating costs can blow up the entire arrangement.

Saving a dollar per shift feels awfully petty. It also isn't worth sacrificing the entire tip credit over.

There are no “quick favors” in wage-and-hour law

2026-03-04T06:54:00.002-05:00

"Can you just help with this for a minute?"

That's how off-the-clock cases start.

Not with an intent to steal wages, but with an innocent call for help.

In Arnold v. Marriott, a hotel employee alleges that during busy holiday seasons he and others were directed to help with conference and event setups while not clocked in — including during lunch. Supervisors allegedly observed pre-shift work and didn't ensure it was recorded. On one occasion, when he asked whether he'd be paid for responding to work texts during lunch, he was told yes — but claims he wasn't. He also alleges he raised concerns with management and nothing changed.

That's the fact pattern.

The court didn't decide who's right. It decided whether the allegations were enough to move forward. They were.

Why? Because the complaint didn't just recite legal buzzwords. It alleged specific instances of pre-shift work, lunch-break interruptions, supervisory knowledge, and a failure to correct the problem. The unlawful withholding of wages doesn't require evil intent. It only requires that an employer failed to pay an employee for time it knew or should have known employee was working. If a supervisor directs or observes off-the-clock work and the company doesn't fix it, that's more than enough to keep a wage claim alive.

There's a lesson here for every employer with nonexempt staff.

Off-the-clock exposure rarely comes from a written policy or from an intent to "screw" the employees or steal from them. It comes from culture. From operational pressure. From managers who prioritize getting the job done over getting the time recorded.

Just because it's not "on the clock" doesn't mean it didn't happen. That needs to be more than a slogan. It needs to be consistently enforced during every work shift.

Train managers that there are no "quick favors" before a shift or during lunch. No "just take care of this." If they need the work done, the employee must be paid for their time.

Make timekeeping easy. Mobile punches. Clear reporting mechanisms for missed meals or extra time. Zero retaliation for reporting pay issues.

Audit high-risk departments — events, hospitality, production, anywhere deadlines rule the day.

And when an employee complains about unpaid time? Investigate it and, when necessary, fix it. Immediately. Pay it. Document it.

Off-the-clock claims are expensive not because of one missed punch — but because of what happens after management learns about it and does nothing.

That's where liability multiplies. And where employers get burned.

Litigation is a strategy, not a reflex

2026-03-03T13:04:00.003-05:00

When an employee walks out the door holding your company's stuff hostage, you have two problems: (1) your property, and (2) the story you're creating for the inevitable lawsuit.

Rezene v. Haribo is a case study in how fast this can go sideways. The employee allegedly kept a company Mercedes, phone, laptop, and other items while severance talks dragged on. The employer's lawyers got involved to retrieve the property. After multiple written demands, they contacted police. Officers showed up at the employee's home. Cue the next act: claims for defamation, emotional distress, discrimination, and retalation.

Years of federal litigation followed. Haribo ultimately won. Some claims died on summary judgment. The rest died at trial. But that's not the point.

What started as a property-return dispute metastasized into 15 rounds of litigation. Depositions. Summary judgment briefing. A jury trial. And who knows how many hundreds of thousands of dollars in legal fees.

Winning doesn't mean it was cheap. Or fast. Or worth it.

Employers, property recovery is not just an IT/HR chore. It's evidence management. Every email, every deadline, every adjective becomes a future exhibit.

So what’s the right playbook?

1) Separate the issues. Severance discussions are one lane. Property return is another. Put it in writing: return of company property is required regardless of whether we reach a severance agreement.

2) Make the demand letter boring. List the items. Confirm ownership. Set a firm deadline. Offer a neutral handoff option. Avoid loaded language. "Stolen" is a conclusion. "Company-owned equipment not returned after X written requests" is a fact.

3) Lock down data immediately. Disable access. Remote wipe if appropriate. Document what you did and when you did it.

4) Think carefully before calling the police. Sometimes it's warranted. But it's also gasoline. If you go that route, assume you'll be defending the decision to a jury.

5) Don't let frustration write your emails. Words like "hostage" and "blackmail" feel good in the moment and look terrible in a complaint.

6) A civil replevin or conversion action is a last resort. It may get your property back. It will not avoid litigation. If anything, it invites whatever claims the employee was already contemplating.

Every escalation decision should answer two questions: Is this necessary? And are we prepared to live with the litigation consequences?

Litigation should be a strategy, not a reflex. Act accordingly.

The EEOC can't repeal Bostock, but it's sure trying

2026-03-03T13:02:00.001-05:00

The EEOC just voted 2–1 to hold that federal agencies may restrict bathrooms and other "intimate spaces" based on biological sex — and may exclude transgender employees from facilities consistent with their gender identity.

"Biology is not bigotry," says EEOC Chair Andrea Lucas.

Except according to the Supreme Court, it very much is.

In Bostock v. Clayton County, SCOTUS held that discrimination against transgender employees is discrimination "because of sex" under Title VII. That wasn't a narrow ruling about terminations. It was a statutory interpretation decision. The Court said that when an employer treats someone differently for being transgender, sex is necessarily part of the decision.

You don’t get to separate "biology" from the analysis. The Court already did the textual math.

Commissioner Kalpana Kotagal dissented, warning that the decision "rests on the false premise that transgender workers are not worthy of the agency's protection from discrimination and harassment and that protecting them threatens the rights of other workers."

The majority argues there's no binding precedent on bathrooms specifically, so it returned to the "ordinary meaning" of sex in 1964.

But once the Supreme Court interprets a statute, agencies don't get to rewind the clock and start over. You may disagree with Bostock. But it governs.

A few important guardrails:
• This applies only to federal agencies.
• It does NOT apply to private employers.
• It does NOT bind federal courts.
• It does NOT overrule Bostock.

What it does do is create tension with Supreme Court precedent — and invite litigation.

It also carries a very real human risk.

The practical impact of policies like this isn't abstract. It's harm to transgender workers — exclusion from basic workplace facilities, increased exposure to harassment, and the kind of stigmatization that courts have already recognized as unlawful. When access to a restroom becomes a legal battleground, the people caught in the middle are employees just trying to do their jobs.

Which raises the practical question: was this a widespread workplace problem that needed solving?

Most employers have managed restroom access pragmatically for years, balancing inclusion and privacy without operational chaos. Employment law should address real harms — harassment, retaliation, unequal pay — not create new ones.

Employers should focus on minimizing liability by continuing to adopt policies that treat transgender employees consistent with their gender identity while protecting privacy for everyone. It's the legal thing to do. Just ask the Supreme Court.

WIRTW #791: the 'awkward' edition

2026-02-27T07:00:00.106-05:00

Have you ever seen a celebrity—someone whose work you genuinely love—and completely blown your shot at being normal?

Yeah. Same. It just happened to me.

My daughter and I were on our way to the House of Blues to see Descendents, Frank Turner & The Sleeping Souls, and Nobro. Here's a little secret: Frank Turner is low-key in my top three musicians at this moment in my life.

We parked the car and walked across East Fourth Street toward the venue for a pre-show dinner.

Then I glanced left.

And there he was. Frank Turner himself. Walking down the other side of the street like a regular human being, probably thinking about dinner. Maybe Valentine's Day. Maybe his performance in a few hours. Definitely not thinking about me.

My brain had about half a second to process all of this before my mouth took over.

"WOOO, FRANK TURNER!!!"

Not conversational. Not cool. Not subtle.

Full-volume sidewalk scream.

People stopped. Heads turned. I'm fairly certain a nearby couple thought I was alerting them to an emergency.

Frank's response? Barely a quarter nod. Not a smile. Not a wave. A fractional acknowledgment suggesting, "Yes, I hear you, loud fan," before continuing on his way.

Undeterred—because apparently I hadn't embarrassed myself and my daughter enough—I yelled after him, "We'll see you inside, Frank!"

Friends, he did not turn around.

In my head, this moment was supposed to unfold differently. He laughs. We chat. We discover mutual interests. We exchange numbers. We become besties. I casually mention him in conversation. "Oh yeah, Frank and I were texting…"

Instead, I yelled a man's name across a downtown street while he was out on a Valentine's Day pre-show stroll with his girlfriend.

Jon, not cool. But a story to tell, nonetheless.

To hear the rest of the story about our entire concert experience, check out this week's episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, YouTube, Overcast, Amazon Music, in your browser, and everywhere else you get your podcasts.

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

Outwit, Outplay, Outlast: What 50 Seasons of Survivor Can Still Teach Employers — via Dan Schwartz's Connecticut Employment Law Blog

Your Company is Already Using AI. Where's Your Policy? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

When AI is the Boss, Who Maintains Liability? — via The L•E•Jer

My boss did a racist impression of a coworker — via Ask a Manager

Why Two Single-Slur Cases Never Reached a Jury — via Eric Meyer's Employer Handbook Blog

Trump touts 'we ended DEI' in State of the Union — via HR Dive

Out of "Site," But Not Out of Mind: Employer's Refusal to Respond to Offsite and Off-Duty Harassment Can Be Sufficient to Create a Claim for Hostile Work Environment — via Employment Law Lookout

Can Your Business Survive a Lawsuit? — via Rush on Business

US Department of Labor proposes rule clarifying employee, independent contractor status under federal wage and hour laws — via United States Department of Labor

Can You Fire Employees Who Don’t Return FMLA Forms? — via EntertainHR

One weird trick for busting your bartenders' union — via Fingers

Good News, Bad News for US Unions — via The Chief Organizer Blog

BrewDog Workers Protest Sale Citing 'Years of Catastrophic Mismanagement' — via The Drinks Business

Young Americans Trade Drinking at Home for Bars, Fitness — via Brewbound

Philadelphia's Craft Beer Scene Is Ready for Its Close-Up — via Brewers Association

A lesson on retaliation from the State of the Union

2026-02-26T06:57:00.000-05:00

A lawmaker sits silently during a high-profile speech. He holds up a simple sign protesting a racially offensive depiction of a former president by the current president. No shouting. No profanity. Just a message: this is wrong.

Within minutes, he's escorted out.

Now take off the Capitol dome and put that scene in your workplace.

An employee complains about race discrimination. Maybe she objects to a racist meme circulating in the office group chat. Maybe she calls out a supervisor's "joke." She doesn't flip a desk. She doesn't torch the building or blast the company online. She just says, "This isn't okay."

Two days later, she's reassigned. Or written up. Or shown the door.

That's retaliation.

Under Title VII, employers cannot take an "adverse action" against someone because they opposed discrimination or participated in a complaint process. The opposition doesn't have to be polished. It doesn't have to be convenient. It just has to be a reasonable protest of unlawful conduct.

The standard for what qualifies as an "adverse action" is broader than many employers think.

It's not just termination. It's any action that might dissuade a reasonable worker from making or supporting a complaint of discrimination or harassment. Demotions. Pay cuts. Schedule changes. Undeserved discipline. Even subtle moves that materially alter job conditions.

The Supreme Court has made clear: if the employer's response would chill a reasonable person from speaking up, you've likely crossed the line.

Here's the mistake I see too often. Management focuses on whether the employee was disruptive. Annoying. Embarrassing. Public.

Wrong question.

The right question is this: would we have taken the same action if this employee had kept quiet?

If the honest answer is no, you're in retaliation territory.

Employees are allowed to protest discrimination. Even awkwardly. Even publicly. Even in ways that make leadership uncomfortable.

Employers, you don't get to punish the protest simply because you don't like the message. In the workplace, that escort to the door can turn into Exhibit A.

Culture is what you tolerate

2026-02-25T06:57:00.012-05:00

We tell ourselves a comforting lie about bad behavior around sports.

It's just passion.
Just rivalry.
Just trash talk.

Until it's racism.
Until it's misogyny.
Until it's culture.

Two recent soccer incidents make this point.

In a Champions League match, Real Madrid star Vinícius Júnior alleged that Benfica's Gianluca Prestianni directed a racist taunt at him after a goal. The referee activated UEFA's anti-racism protocol. The match paused. An investigation followed.

UEFA has since banned Prestianni from the second leg.

Whether you think that's enough isn't the point. The point is that the governing body took action.

Later that same week, a Tottenham fan mocked Arsenal's Declan Rice while he was taking a corner, waving a photo of Rice's partner and ridiculing her weight. Not a player. Not part of the match. A private individual targeted because of her body.

Broadcast audio picked up Rice telling teammate Bukayo Saka: "When I went to take a corner, they were showing it, so obviously I was angry."

That's not rivalry. That's misogyny. It's also shameful.

We'll see whether Spurs act against the fan. It's been reported that the Premier League will fine the team £1M fine if they fail to identify the fan.

Now add politics to the mix.

Recently, Donald Trump criticized the U.S. women's national hockey team while speaking to the men's team, joking that he'd have to invite the women to the White House too or risk impeachment. The message was clear: their invitation wasn't about accomplishment. It was about obligation.

Agree or disagree with his politics — that's beside the point.

When influential leaders frame women's achievements as secondary or political, it reinforces a culture where dismissiveness feels normal.

And Trump, as usual, faces no consequences for what he says.

Leadership language sets tone. It signals permission — or restraint.

Culture signals what's acceptable.

Here's where this hits home for employers.

Workplaces love to talk about culture. But culture isn't what you publish. It's what you tolerate.

If racist jokes get a pass because "that's just how he is," that's culture.
If sexist comments are brushed off as banter, that's culture.
If high performers escape discipline because they produce, that's culture.

Words aren't "just words." In the workplace, they create hostile environments, erode trust, and generate legal risk. Many discrimination cases aren't built on one explosive event, but on patterns of tolerated disrespect.

The stadium and the office aren't so different. Both are competitive. Both run on emotion. Both reflect leadership response.

When leaders minimize bias, others learn it's safe.
When leaders act, others learn it's not.

Racism and misogyny don't thrive because policies are missing.

They thrive because enforcement is.

If you want a culture of respect, don't announce it.

Prove it — especially when it's uncomfortable.

A wiener of a lawsuit

2026-02-24T08:48:00.004-05:00

A bun propped itself atop the deli counter and declared itself lunch. It was golden. Perfectly split. Structurally sound. "Look at my form," it said. "I'm ready to be served." But there was no hot dog inside. All bun, no meat.

That's Mendoza v. Dietz & Watson.

Adela Mendoza, a production employee, sued after her termination, alleging sexual-orientation discrimination, retaliation, and hostile work environment. Dietz fired her for insubordination after she failed to follow a directive to move to a different production line when hers went down. She admitted she knew the rule: insubordination could mean discharge.

The employer's legitimate, nondiscriminatory reason doesn't have to be fancy. It just has to exist and be supported by the record. Here, it had weight. It had snap.

Mendoza tried to build her case around broader allegations—being "regularly singled out," vague claims of anti-gay comments, complaints about the phrase "hey guys." But at summary judgment, you don't get served on presentation alone. Courts require substance. Specifics. Record citations. Something a jury can actually chew on.

As the court eloquently put it: "Judges are not like pigs, hunting for truffles buried in the record."

The court found the evidence too thinly sliced to create a genuine dispute of fact. Months separated her complaint and her termination—too long for meaningful temporal proximity. She couldn't tie her protected activity to the decisionmaker. And the alleged comments, even viewed in her favor, weren't severe or pervasive enough to turn workplace friction into a Title VII violation.

In other words: all bun, no dog.

The structure of a discrimination case matters. Prima facie case. Legitimate reason. Pretext. But structure without evidence is just bread. The employer had documented rules, consistent enforcement, and a clear reason for termination. The plaintiff had suspicions and generalities.

Courts aren't in the business of serving empty meals.

Employers: Consistently applied policies and contemporaneous documentation are your meat. Without them, you're just waving a bun around and hoping no one notices what's missing. Courts and juries, however, will notice. Employers: Consistently applied policies and contemporaneous documentation are your meat. Without them, you're just waving a bun around and hoping no one notices what's missing. Courts and juries, however, will notice. I don't at all relish being in that position.

WIRTW #790: the 'protest' edition

2026-02-20T06:57:00.004-05:00

Rock 'n' roll has a long history of protest music.

From Woody Guthrie's Tear the Fascists Down to Rage Against the Machine's Killing in the Name, musicians have been poking power in the eye for decades. It's loud. It's uncomfortable. That's the point.

Right now, the amps are pointed squarely at ICE.

Springsteen has drawn headlines. U2 just added its voice. When global superstars wade into immigration enforcement, reaction is guaranteed.

But if you want to understand the emotional core of this moment, don't start with the arena tours.

Start with Billy Bragg's City of Heroes.

This isn't subtle. It's not abstract.

It's a song about complicity.

Bragg opens with the ghost of Martin Niemöller—the pastor whose post-WWII confession about silence in the face of Nazi persecution still echoes.

"When they came for the communists..."
"When they came for the Democrats..."
"When they came for Jews..."

The point is familiar: silence feels safe—until it isn't.

Bragg brings that warning into the present tense, asking: What excuses would you tell yourself if this ever happened to you?

That's not policy debate. That's conscience.

Then it turns personal.

The refrain isn't passive. It's not "I posted." It's not "I tweeted."

It's: "I got in their face."

When they came for immigrants…
For refugees…
For five-year-olds…
To my neighborhood…
When they dragged people from their cars…
Took families from their homes…
Murdered our sister…
Murdered our brother…

…I got in their face.

Bragg ends with a vow: to bear witness to terror, to tyranny, to murder, to fascism.

This isn't about policy. It's about refusing to look away.

I created a playlist of protest songs. Some were written in the shadow of fascism in Europe. Some were born in the civil rights era. Some were recorded in the last news cycle.

Different decades. Different villains. Same instinct.

When artists believe government has crossed a line, they write. They record. They dare you to listen. And to do something.

You don't have to agree with every lyric. You don't have to like the politics. You may think some of it is overwrought.

That's fine.

But protest music tells you something about the cultural moment—what people fear, what they value, what they think is at stake.

What’s missing from my protest pantheon? Drop me an email and tell me what else belongs on the playlist.

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

Did You Hear That? Smart Glasses, AI Voice Recorders and Workplace Recordings — via Dan Schwartz's Connecticut Employment Law Blog

Claude, ChatGPT, and Privilege: Proceed With Caution, Employers — via Eric Meyer's Employer Handbook Blog

U.S. DOL Unveils AI Literacy Framework — via Joe's HR and Benefits Blog

I Was Asked My Zodiac Sign During a Job Interview. Should I Be Worried? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Pinch Me! The ABA’s Summary of 2025 FMLA Court Decisions Is Now Available. — via Jeff Nowak's FMLA Insights

Office Work Can Be Less Productive Than Work from Home — via Above the Law

HR's Playbook for Including Intellectual and Developmental Disabilities in DEI — via EntertainHR

Employer Ghosting: Impacts on Candidate Experience and Hiring — via TalentCulture

Hands Off the Credit Checks: New Limitations on the Hiring Process — via The L•E•Jer

Ex-Bardstown Bourbon Company HR Executive Sues Company, Alleging 'Illegal, Unethical, Discriminatory' Conduct — via Yahoo Finance

FCC Confirms "Enforcement Action" Against Talk Shows — via Consequence

2026 Ohio Beer Awards Results — via Ohio Craft Brewers Association

If you’re going to buy the hype, at least read the fine print

2026-02-19T07:03:00.013-05:00

For years, BrewDog invited fans to become "Equity Punks." Not just customers. Owners. Across seven crowdfunding rounds, roughly 220,000 investors poured in about £75 million (that's more than $100 million).

Now, as BrewDog explores a sale or break-up, many Punks may be staring at a zero return, and they are not happy about it.

"Well at least I got £2.34 off an order once. Not a bad return for £500," wrote one online. Another told the BBC, "I invested £12,000 in BrewDog - I think I've lost it all."

Not because the rules changed. But because the rules were always there.

In 2017, private equity firm TSG invested and reportedly secured preferred shares with a liquidation preference. Translation: TSG gets paid first. If a sale price doesn't exceed what TSG is owed, common shareholders, the Equity Punks, get nothing.

That's not villainy. That's just basic capital structure.

And believe me, given BrewDog's track record of harassment and other employee mistreatment, I'd love to lay the blame here at their feet. But this outcome flows from the documents, not from some last-minute sleight of hand.

The investment risks weren't hidden. Early prospectuses warned that Equity Punk investments were speculative, illiquid stock and that investors could lose everything. They also disclosed the company could later issue shares with rights senior to existing holders. By 2017, the documents were clearer still: preferred shares already sat ahead of common stock and could reduce B shareholders' returns (the Equity Punks) in a sale to zero.

Yes, TSG came later than many early investors. But timing doesn't control priority, the investment documents do. Early common shareholders typically agree the company can issue later preferred shares with superior rights. If that authority existed (and there's no indication here that it didn't) then nothing was retroactively taken. The risk was embedded from the start.

Preferred equity sits at the top of the stack. Common sits at the bottom. It enjoys the upside if things soar. It absorbs the loss if they don't.

Add several years of losses and declining sales to the mix, and the math becomes unforgiving.

Separate from the capital structure is the company's broader arc: a brand that began white-hot and later struggled amid criticism about leadership, culture, workplace practices, and a toxic culture. Whether that drove the decline is debatable. The preference stack is not.

The fine print tells you who gets paid first. If you don't read it, that's on you, not the company.

Your ChatGPT history as a hiring test? That's a hard no.

2026-02-18T06:56:00.005-05:00

"Take out your phone and open your ChatGPT app. Type this prompt: 'Based on my past conversations, analyze my behavioral tendencies.'"

In a Reddit post that has gone viral, that's what someone claims just happened to them during a job interview.

If that interview scenario is real, the issues aren't just ethical. They're also potentially legal.

Here's the framework. Employers are allowed to use personality assessments in hiring. But those assessments live in a carefully regulated space.

Under the ADA, an employer may not require a medical examination or make disability-related inquiries before a conditional offer of employment. The EEOC draws a line between permissible "personality tests" (measuring traits like honesty or preferences) and impermissible medical or psychological exams that screen for mental disorders such as depression, anxiety, or PTSD.

A standard, validated personality assessment that does not diagnose or identify mental impairments is generally lawful pre-offer. But a tool designed to reveal mental health conditions—or that predictably elicits that information—crosses into prohibited territory.

Now apply that framework to: "Based on my past conversations, can you analyze my behavioral tendencies?"

What's in those past conversations? For many users: therapy-adjacent discussions, stress about family, questions about ADHD, depression, medications, burnout, addiction, trauma. If an employer requires a candidate to generate and disclose a summary built from that data, it is difficult to argue the employer is not, at minimum, eliciting disability-related information.

Intent isn't the only issue. Effect matters. If the process predictably surfaces mental health indicators, the employer may be conducting an unlawful pre-offer medical inquiry—without calling it one.

There's another problem. Personality testing must be job-related and consistent with business necessity if it disproportionately screens out individuals with disabilities. An AI-generated "behavioral tendencies" report is unlikely to be validated for any specific role. No validation study. No reliability metrics. No guardrails. Just a black box summary.

That's we lawyers call a precursor to litigation.

Add in the power imbalance of an interview setting, and "voluntary" disclosure becomes legally murky. If a candidate feels compelled to reveal information that touches on protected conditions, you've created risk before the first day of employment.

AI in hiring isn't inherently unlawful. But using a candidate's personal AI history as a de facto psychological assessment? That starts to look a lot like a medical exam dressed up as innovation.

When AI tools wander into the territory of mental health assessment—even indirectly, the ADA is not optional. Employers who ignore that line do so at their peril.

The 2nd nominee for The Worst Employer of 2026 is … The (Not) Joking CEO

2026-02-17T07:06:00.006-05:00

At a company keynote in Las Vegas, Salesforce CEO Marc Benioff invited the international employees to stand. He then joked that ICE agents were in the back of the room, ready to deport them. He doubled down with more immigration-enforcement punchlines. The crowd responded with faint boos. Slack lit up with employees calling the comments "deeply horrifying" and "not funny."

Here's the part that makes this more than just a bad attempt at humor: this comes on the heels of multiple fatal shootings involving federal immigration agents, increased enforcement that ignores people's civil rights, and other acts of violence. People are dead. Families are grieving. And a billionaire CEO thought it was a good idea to riff on deportation for laughs.

Read the room.

As management-side counsel, I spend a lot of time telling executives that words matter. Culture isn't what's printed on the lobby wall. It's what leaders say and do when the spotlight is on them. When you talk about "trust" and "equality" in one breath and joke about immigration raids in the next, don't be surprised when your employees call foul.

This isn't about politics. It's about judgment. Poor judgment.

When a general manager publicly says the jokes were "indefensible" and don't align with his values, that’s not a minor PR hiccup. That's your own leadership team distancing itself from you. When employees start circulating letters demanding policy changes and public denunciations, you've turned a keynote into a crisis.

Could this have been avoided? Of course. "Just do the corporate presentation." Talk about products. Talk about growth. Talk about strategy. Do not make deportation the punchline. Don't make your international employees the butt of a tasteless joke.

Humor in the workplace is tricky. Humor about immigration enforcement—especially amid real-world violence—is radioactive. Leaders who don't understand that are either insulated from reality or indifferent to it. Neither is a good look.

If you're the CEO, you don't get to test-drive edgy material at the expense of your workforce's sense of safety and decency. If you make vile jokes about ICE raids, don't act shocked when your employees decide you're the problem, or when you're nominated as the Worst Employer of 2026.

Pro tip from pop culture: Don't fire your employees while they are in the ER

2026-02-16T12:06:00.001-05:00

"If you fire her, she will sue you and I will testify."

That's not a plaintiff's lawyer talking. That's Dr. Robby, the chief of emergency medicine on The Pitt, grabbing a patient's phone and putting her boss on notice while she's being treated for what looks like SIRS—a systemic inflammatory response that's threatening her leg and possibly her life.

Debbie Cohen is in the ER. Her rash is spreading. Three senior physicians are at her bedside. And her biggest fear is missing work.

Her boss keeps calling, accusing her of exaggerating, dangling termination if she doesn't show up. At one point she pleads, "Please! Please don't fire me!"

Let's talk about the law.

We don't know whether her employer is large enough to be covered by the FMLA or whether she's worked long enough to be eligible. The episode doesn't give us headcount or tenure. But if the company meets the 50-employee threshold and Debbie satisfies the 1,250 hours/one year eligibility requirements, this is easy. Once the employer has notice she's in the ER with a serious health condition, firing her for missing work is classic FMLA interference and retaliation.

You don't get to terminate someone for being hospitalized after you've been told she's hospitalized.

And even if the FMLA doesn't apply, the ADA almost certainly does. A condition serious enough to land someone in the ER with a systemic inflammatory response almost certainly qualifies as a disability. The ADA requires reasonable accommodation. Time off for emergency treatment is about as reasonable as it gets. The appropriate response isn't skepticism and threats. It's flexibility and dialogue.

But here's the bigger issue. If your employee, sitting in an ER fearing for her life, is more worried about getting fired than getting better, your culture is badly broken. No one should need a doctor to threaten to testify in a lawsuit for a manager to show basic decency.

Employers, make sure you understand your FMLA obligations, respect the ADA's accommodation requirements, and build a workplace where medical emergencies trigger support—not suspicion and threats of termination.

WIRTW #789: the 'while my guitar gently weeps' edition

2026-02-13T07:00:00.045-05:00

Fifty-three today.

That's either mid-50s or early-50s depending on how generous you're feeling. I'm choosing the latter.

Staying young has less to do with age and more to do with intention. You don't stumble into it. You choose it. It's a mindset, not a calendar.

For me, that means leaning hard into the stuff that makes life feel big.

Family first. Always. My family and I are soon heading to London soon to tour universities with my son as he chases a future studying sports and football management. My wife and I keep stacking travel plans instead of excuses. There is never not a good reason to travel, and this happens to be a really good one.

It also means restarting the daily exercise habit. Again. Because nothing says "53" like making noises when you stand up. Movement is the antidote. So I'm trying to move more every day.

And concerts. Loud ones.

Next up: a Valentine’s Day date with my daughter. Descendents and Frank Turner & the Sleeping Souls at the House of Blues. We'll be in the pit. Look for us if you're there, too. As a concession to my age—and my hearing—I invested in a good set of ear plugs for the first time. Growth comes in many forms.

Staying young is saying yes to the pit. Ask me Sunday if it was a wise choice. I’m hoping for sore legs, ringing ears (muted responsibly), and zero regrets.

On this week's episode of the Norah and Dad Show, we talk through our expectations for this show, as well as the importance of wearing sensible shoes to a rock show. We also mourn the untimely passing of Norah's beloved Martin acoustic guitar, Eleanor. Listen to this week's episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, YouTube, Overcast, Amazon Music, in your browser, and everywhere else you get your podcasts.

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

Following Suit by Law Students, EEOC Backs Down on Data Demands to Law Firms — via Democracy Forward

AI Data Center Expansion Poses High Risk of Child Labor Issues — via Bloomberg Law

How Not to Handle Suspected FMLA Abuse — via Eric Meyer's Employer Handbook Blog

Fewer workers say they feel a positive impact from DEI initiatives than prior years — via HR Dive

I'll drink to orderly queues in pubs — via The Guardian

DHS Is Hunting Down Trump Critics. The 'Free Speech' Warriors are Mighty Quiet. — via Above the Law

Rehab Addict Canceled at HGTV After Host Nicole Curtis Uses Racial Slur During Filming — via TVLine

Employee openly cheated on her partner at our company party — via Ask a Manager

The justices and gender pronouns — via SCOTUSblog

What’s the ROI on AI? — via Harvard Business Review

Unlimited PTO Sounds Generous—Until You Get Sick — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Beware the legal risks of AI meeting agents

2026-02-11T08:59:00.003-05:00

AI meeting agents are everywhere. They join Zoom calls, transcribe conversations, summarize action items, and promise to save employees hours of note-taking. From a business perspective, the upside is obvious: better documentation, fewer "I don't remember saying that" disputes, and cleaner follow-up.

But like most shiny tech, AI meeting agents come with real employment law and litigation risk—especially if you don't think through how (and when) you use them.

Start with wiretapping laws. Federal law is one-party consent, but many states are not. CA, CT, FL, IL, MD, MA, MI, MT, NV, NH, PA, and WA require all parties to consent to a recording. An AI agent that silently records or transcribes a meeting can easily violate those statutes. That's not just a technical foul. It can mean statutory damages, attorneys' fees, and—yes—class actions.

Then there's employee relations. If employees learn that every meeting might be recorded, transcribed, and stored indefinitely, candor dies fast. Performance conversations become stilted. Complaints may never get voiced. And if the AI summary is wrong, unreviewed, and uncorrected, congratulations—you've just created inaccurate evidence that will be blown up on a screen in front of a jury.

The real nightmare scenario, though, is forgetting to turn it off.

The meeting ends. People start chatting. Someone vents. Someone jokes. Someone says something they absolutely would not want memorialized in writing. The AI agent is still listening. Now you've captured informal comments that were never meant to be "on the record," and you've handed someone a litigation bombshell.

Bottom line: AI meeting agents can be useful—but only with clear policies, upfront consent, disciplined controls, and training that treats them like recording devices, not harmless assistants. Because when they go wrong, they don't just go wrong. They go off the rails.

Workplace investigations are hard. Until they’re not.

2026-02-10T06:57:00.001-05:00

Workplace investigations are hard.

Witnesses forget. Memories conflict. Motives get murky. HR is left piecing together timelines, credibility, and intent from incomplete information, while everyone involved insists they did nothing wrong.

And then there are the easy ones.

Take the paramedic who now faces nearly two dozen criminal charges for allegedly urinating all over his workplace — on a supervisor's keyboard, into communal coffee creamer, an ice machine, orange juice, hand soap, ChapStick, canned vegetables, an air-conditioner vent, even a pot of chili. According to prosecutors, he didn't just do it. He filmed himself doing it. In uniform. Then allegedly posted the videos online to sell.

From an employment-law perspective, this is the unicorn investigation. The accused employee didn't just confess. He created high-definition evidence, complete with a thumbs-up to the camera.

No "he said/she said."
No credibility assessments.
No close calls about intent.

When an employee documents his own misconduct, the investigation largely writes itself. The employer's job shifts from "what happened?" to "how fast can we act, and how do we protect everyone else?"

That doesn't mean these cases are simple emotionally or operationally. Contaminated food, violated trust, horrified coworkers, reputational damage — those are real issues employers must address carefully. But the core investigative challenge? Solved by the employee himself.

The lesson isn't that investigations are usually this easy. They're not. The lesson is that employers need to be prepared for the extreme, the bizarre, and the unthinkable — and to respond decisively when clear evidence drops in their lap. At that point, HR's hardest job may be keeping a straight face while drafting the termination paperwork.

Federal court provides road map for lawful DEI programs

2026-02-09T08:56:00.002-05:00

I keep getting asked how employers can legally maintain DEI programs in today's political climate. A federal judge just answered that question in a lawsuit the Missouri Attorney General brought against Starbucks—and in dismissing it, handed corporate America a roadmap.

The AG argued Starbucks' DEI policies were illegal because they "favored" BIPOC, women, and LGBTQ+ employees through mentorship, affinity groups, partnerships, and "quotas" tied to executive pay.

The court held that allegations without facts are just theories—and theories don't establish jurisdiction or liability.

The AG argued Missouri could sue to protect its citizens from discrimination.

The court held Missouri failed to identify even one injured Missourian. Without a concrete, particularized injury, there's no standing to sue—and without harm to a quasi-state interest, the state can't litigate private claims. The court also held that there was no reason individuals couldn't sue if discrimination actually occurred.

The AG argued maintaining "quotas" plus incentive compensation tied to meeting them necessarily meant discriminatory hiring and firing.

The court held discrimination still requires an adverse employment action taken because of race or sex. Starbucks' goals didn't show that. The company already exceeded many targets, retention incentives aren't zero-sum—keeping a diverse employee doesn’t mean a white or male employee was harmed—and demographic shifts ("more female and less white") don’t establish causation without facts tying them to discriminatory decisions.

The AG argued Partner Networks, mentorship programs, DEI partnerships, and executive incentives segregated employees or coerced discrimination.

The court held the networks were open to all, no one was alleged to be excluded from mentorship, and participation in groups like the Board Diversity Action Alliance showed no actual harm, and a company can't coerce itself.

The AG argued Starbucks "published" illegal job preferences in reports and proxy statements.

The court held those documents weren't job ads, didn't announce "preferred races get jobs," and didn't deter anyone from applying.

Want a durable DEI program? This opinion sketches the roadmap: aspirational goals, open-access affinity groups, mentorship without exclusion, and—most importantly—no employment decisions you can't tie to legitimate, non-discriminatory criteria. The AG brought politics. The court required facts.

WIRTW #788: the 'it's a beautiful day' edition

2026-02-06T09:35:00.006-05:00

When I was a kid, Mr. Rogers' Neighborhood wasn't background noise. You sat on the floor. You watched. You waited for him to come through the door, change his shoes, and pull on that cardigan. Nothing flashy happened. No one was mocked. No one was humiliated. No one "won."

And yet, by the end, you felt steadier.

It took me years to understand why. Fred Rogers wasn't just entertaining children. He was teaching empathy—carefully, intentionally, and without irony. Which is why I keep coming back to this thought: we need a sociological study comparing the empathy of adults who grew up on Mr. Rogers' Neighborhood with those who didn't.

Because empathy feels like the missing muscle in American society right now.

Every episode opened with a simple, disarming truth:

"I like you just the way you are."

Not if you earn it.
Not if you agree.
Not if you fit in.

Just: you matter.

That idea once felt obvious. Today, it feels almost subversive. We sort people by usefulness, loyalty, productivity, and tribe. Empathy gets rationed. Compassion gets qualified. Caring about the “wrong” people is treated as a flaw.

Rogers never hedged.

"You are worth caring about."

That's where empathy begins. And when a society stops teaching that lesson, it doesn't become tougher or more realistic. It becomes colder—and easier to harden.

Rogers also understood that empathy requires emotional literacy. You can't recognize pain in others if you've been taught to deny it in yourself. On his show, he talked openly about fear, anger, sadness, and loss—not to inflame them, but to name them.

"When we're frightened, we tend to lash out at others."

That isn't politics. It's human behavior. When empathy erodes, fear rushes in. And fear doesn't make people wiser or stronger. It makes them reactive.

Rogers' answer wasn't suppression or denial. It was honesty.

"The thing that is mentionable becomes manageable."

That lesson applies to adults as much as children. Societies that can't talk honestly about discomfort don't become resilient. They become brittle.

Empathy also shapes how we see one another.

"The neighbors you find are the neighbors you look for."

If you go looking for threats, you'll find them. If you go looking for people, you'll find those too. One path leads to suspicion and withdrawal. The other leads to restraint and connection.

And empathy doesn't require unanimity.

"We don't have to think alike to love alike."

That sentence feels almost antique now, which should worry us. We increasingly treat disagreement as disqualification and difference as danger. Rogers offered a quieter alternative: coexistence without dehumanization.

He never framed empathy as weakness. He treated it as a civic skill—something to be taught, practiced, and protected. A society held together by empathy doesn't need as much fear or force to function.

Which brings us to where we are.

The erosion of empathy doesn't just harden people; it makes them easier to lead by fear. When compassion is framed as weakness, it leaves a vacuum. And something always rushes in to fill it.

So yes, fear still matters. But it's a consequence, not a cause. Fear is downstream of the deliberate erosion of empathy. When people are taught not to care, cruelty becomes easy. And when empathy disappears, bad ideas don't have to work very hard.

Fred Rogers never talked about politics. He didn't need to. He was doing something more basic: teaching children how to live with other people without losing their humanity.

America didn't lose its way because we cared too much.

We lost it because we stopped treating empathy as a strength.

Empathy isn't softness. It's social infrastructure. It's our superpower. And any culture that mocks it shouldn't be surprised when things start coming apart.

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

A Finger in the Constitutional Dike — via San Antonio Employment Law Blog

ICE Visit at Work: What HR Must Do When Enforcement Arrives — via HR Morning

Does the DEI movement need to include men more often? — via HR Dive

Are you using ChatGPT as your substitute lawyer? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Is AI Going to Screw Up Pubs? — via Beervana

When a PIP becomes the retaliation claim — via Eric Meyer's Employer Handbook Blog

How to respond when a candidate discloses a disability in an interview — via Ask a Manager

Here's Your Practical Guide on How and When to Use NDAs — via EntertainHR

Left With Nothing But an Injunction: Fifth Circuit Vacates $75 Million Trade Secret Verdict After Plaintiff Fails to Apportion Damages — via Trading Secrets

Uncle Nearest Is Insolvent, Receiver's Explosive Affidavit Claims — via VinePair

Just Subpoena It.

2026-02-05T09:59:00.005-05:00

This week, the EEOC sent a strong message to corporate America when it went to federal court to force Nike to turn over years of documents tied to allegations that its DEI programs discriminated against White employees.

The EEOC isn't suing Nike for discrimination—at least not yet. Instead, it has filed a subpoena enforcement action after Nike allegedly refused to fully comply with an investigation that reaches back to 2018. According to the agency, Nike's "DEI-related 2025 Targets" and other initiatives may have resulted in race-based decision-making in hiring, promotions, layoffs, internships, and mentoring and leadership-development programs.

Under EEOC Chair Andrea Lucas, the agency has made one thing unmistakably clear: Title VII is "colorblind." In fact, that's been the state of the law since in enactment in 1964. That means DEI programs are not immune from scrutiny—especially if they involve quotas, race-restricted programs, or employment decisions made even partly because of race.

The agency is asking Nike for information on layoff criteria, race and ethnicity tracking, whether executive compensation was influenced by workforce diversity metrics, and 16 allegedly race-restricted career development programs.

Nike says the subpoena is wildly overbroad, unduly burdensome, and a fishing expedition—and that it has already produced thousands of pages of documents. That procedural fight will play out in court. But zoom out, and the bigger picture is hard to miss.

Nike isn't just being investigated. It’s being showcased. That's the point in targeting Nike—to make an example of a big-name employer to highlight this issue.

Employers with DEI programs or goals: good intentions won't save you. DEI goals, standing alone, are not illegal. Their legality, however, depends on how you implement them. Numerical race-based targets, limiting opportunities by race, or factoring race into promotions, layoffs, or compensation decisions have always lived on thin legal ice. That ice just cracked.

If your DEI strategy includes hard targets tied to race, race-exclusive mentoring or leadership programs, or uses race as a factor in employment decisions, you should assume the EEOC is very, very interested. Employers should audit their DEI programs now—before the agency decides to do it for them.

Union activity Is not a license to be abusive at work

2026-02-04T15:00:00.005-05:00

Let's get something straight right out of the gate: employees have the right to organize. They also have the right to complain about work, staffing, and management decisions. What they do not have is a free pass to be abusive, vulgar, and demeaning toward coworkers and supervisors—union campaign or not.

That's what makes the Starbucks case now pending before the Fifth Circuit so frustrating.

The employee at the center of this case wasn't just "venting." In a private Snapchat group, he referred to his store manager as a "f--king p--sy" and "chicken s⁠--t," called a coworker a "useless f⁠--king" employee and a "dumb f--king b⁠--ch," and told management to "suck my f--king d--k." That’s not heated debate. That’s not protected concerted activity. That's workplace misconduct, plain and simple.

Yet the NLRB took the position that disciplining—and ultimately firing—this employee violated the NLRA because Starbucks supposedly tolerated profanity generally and because the employee happened to be a prominent union supporter.

That's a dangerous line to draw.

Yes, context matters under labor law. Yes, employers can't selectively enforce rules to punish union activity. But there has to be a line. Employers have legal obligations to maintain respectful workplaces, prevent harassment, and protect employees from abusive conduct. When the Board treats language like this as effectively protected because it occurred during a union campaign, it puts employers in an impossible bind.

Here's the real-world problem: if an employer disciplines this behavior, it risks an unfair labor practice charge. If it doesn't, it risks a hostile work environment claim from the employee called gender-based slurs.

Union organizing does not suspend basic workplace standards. The NLRA was never meant to require employers to tolerate personal attacks, misogynistic slurs, or degrading language toward coworkers. Protecting concerted activity should not mean normalizing abuse.

Yes, employees can organize, complain, and advocate forcefully. But they can't be abusive jerks while doing it. And employers should not be punished for drawing that line.

When does $5,000,000 not equal $5,000,000?

2026-02-03T08:30:00.002-05:00

Elizabeth Graham worked as a benefits generalist in the human resources department of Bristol Hospice Holdings. She filed (and later withdrew) an EEOC charge alleging age and sex harassment. A couple of months later, during an acquisition integration, the company accused her of blowing off a training assignment (and then lying about it). The VP of HR terminated her — allegedly for insubordination and falsifying what happened.

A federal court jury just awarded her $5,000,000 in punitive damages, on top of $75,000 in non-economic compensatory damages. That punitive award will never last.

Punitive damages are not whatever number a jury thinks will send a message. They are constrained by constitutional due-process limits, and the Supreme Court has repeatedly emphasized that punitive damages must bear a reasonable relationship to compensatory damages. While there's no bright-line rule, single-digit ratios are generally considered acceptable. As the ratio grows, judicial tolerance drops fast.

Here, the ratio is roughly 67 to 1.
That alone puts the verdict in serious jeopardy.

Courts reviewing punitive awards look to three guideposts: (1) how reprehensible the defendant's conduct was, (2) the ratio between punitive and compensatory damages, and (3) how the award compares to civil penalties in similar cases.

Even accepting the jury's view of the facts, this is a single-plaintiff retaliation case involving economic and emotional harm — not physical injury, not widespread misconduct, and not conduct at the extreme end of the employer-misbehavior spectrum.

That matters. A lot.

When compensatory damages are relatively low, courts are especially skeptical of massive punitive awards untethered from actual harm. Punitive damages are meant to punish and deter, not to create an arbitrary windfall. At some point, punishment becomes constitutionally excessive.

This verdict crossed that line.

Expect post-trial motions. Expect remittitur. And if necessary, expect appellate intervention. The liability finding may stand. The $5 million number almost certainly will not.

$5,000,000 may grab headlines today. But in the end, it almost certainly won't equal $5,000,000.

WIRTW #787: the 'accidents will happen' edition

2026-01-30T06:51:00.005-05:00

"I think you just hit somebody."

That's what Mitch Goldstein said to me one cold morning in the winter of 1990. It was our senior year of high school, and I was driving us to school.

I had felt the bump.
"A car?" I asked.
"No," he said. "Some body."

He was right. My car had clipped a person—Delores Ritchie.

I was turning left from Audubon Ave. onto Tomlinson Rd. It was cold, and the windshield of my parents' powder-blue Subaru wagon was still partly iced over. Tomlinson runs east–west, and as I turned into the eastbound lane, the rising sun's glare blinded me just long enough.

Ms. Ritchie had the same problem. She had pulled over about a hundred feet past the intersection to scrape ice off her windshield. She was standing in the lane of traffic, on the driver's side of her car, when my passenger-side mirror clipped her.

I never saw her.

The police came. She left in an ambulance. Mitch and I went to school.

A few months later, as I left the public library next to George Washington High School, there she was—Delores Ritchie—standing at the circulation desk, chatting with the librarian.

I walked toward her to ask how she was doing, and then I heard this: "I was in an accident. A car clipped me and knocked me to the ground. I'm OK, but my lawyer wants me to keep going to doctors to run up my damages."

True story.

I slipped past her without being seen. I went home and told my dad what I'd heard. He told our lawyer.

The lawsuit disappeared.

Here's the lesson: if you're involved in litigation, watch your mouth. You never know who's listening—or when it will matter. Every offhand remark is potential evidence. Today's small talk can end your case tomorrow.

As for car accidents, that one was my first, but not my last. My daughter, Norah, away at college, was just in her first. To hear that story (and I promise it's just as good), listen to this week's episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, YouTube, Overcast, Amazon Music, in your browser, and everywhere else you get your podcasts.

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

The Legal Landscape of HR 2026 with Jon Hyman — via DriveThruHR

1 year into Trump 2.0, HR professionals are 'caught in the middle' of the DEI debate — via HR Dive

The End of the Snow Day? Updating Your Workplace Weather Policy — via Dan Schwart Connecticut Employment Law Blog

AI's Biggest Shock May Hit the Middle of the Org Chart, Not the Bottom — via HR Gazette

AI and Negotiation: The New Frontier of Dispute Resolution — via ADR Prof Blog

A Chick-fil-a Job Title Looked Great on LinkedIn. Then the Internet Read $21 Per Hour Pay Rate — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

How a Drug Test Exposed an ADA Compliance Gap — via Eric Meyer's Employer Handbook Blog

Polygamous working: why are people secretly doing two or three full-time jobs at once? — via The Guardian

When Tipping Becomes a Customer Experience Problem — via Harvard Business Review

Is it reasonable to be fired if your boss finds out you’re interviewing? — via Ask a Manager

Why Craft Beer Just Isn't as Popular as It Used to Be — via Vice

Has Beer Become Secondary? — via Secret Hopper

Minneapolis' Insight Brewing on Supporting a Community in Crisis — via Brewbound

Liberal Wisconsin brewing company promises 'free beer, all day long' after Trump dies — via Fox News

Billy Bragg Releases New Song "City of Heroes" Supporting Minneapolis Protesters: Stream — via Consequence

Listen to Bruce Springsteen's powerful new protest song, "Streets Of Minneapolis" — via UNCUT

If you can't force older employees to retire, how do you succession plan?

2026-01-29T08:50:00.008-05:00

Employers face a legitimate—and growing—problem: if older employees aren't retiring on schedule (or at all), how do you plan for leadership transitions and future staffing needs without committing age discrimination?

The answer starts with recognizing that today's workforce doesn't retire the way it used to. Many employees expect to work past 65, often for financial reasons or because they want to stay active and engaged. Employers who build succession plans around outdated retirement assumptions are setting themselves up to fail.

What doesn't work (and is illegal) is pressure. You can't demote older employees, cut their pay, strip responsibilities, or make their jobs unpleasant in hopes they'll "choose" to retire. That’s not workforce planning—it's an age discrimination constructive discharge claim waiting to happen.

So, what does work?

First, make retirement financially possible. Employees retire when they can afford to. Offer a strong retirement plan, encourage participation, and structure employer matches to promote meaningful savings. The easier you make it to save, the more likely employees can eventually step away.

Second, educate employees early. Many workers underestimate what retirement actually costs. Work with plan providers to offer guidance on saving and investing, and make clear that loans and early withdrawals undermine long-term security.

Third, eliminate the all-or-nothing choice. Retirement doesn't have to mean walking out the door for good. Offer voluntary phased-retirement options—reduced schedules, part-time roles, job sharing, or transitions into mentoring and training positions.

Fourth, standardize succession planning around roles, not people. Succession plans should attach to positions and critical functions, not to specific employees. When planning is role-based and applied consistently across the organization, it looks like legitimate business planning—not an effort to target older workers.

Finally, gather workforce insight the right way. Instead of asking older employees when they plan to retire (don't), use stay interviews to understand what keeps employees engaged and what might cause them to leave. Just as important, do this for everyone, not just older workers. When stay interviews are a uniform practice across age groups, they provide valuable planning insight without creating age-discrimination risk.

The bottom line: You can't force older employees to retire. But you can create conditions that make retirement a realistic, voluntary option—while giving your business the time and structure it needs to plan for what comes next.

Mangement discussion of an older worker's "retirement" as age discrimination

2026-01-28T06:56:00.004-05:00

"When are you retiring?" That's not an employer's call to make.

Here's a rule that employers still manage to forget or ignore: the decision about when to retire belongs to the employee. Start nudging. Start hinting. Start asking. Start factoring it into employment decisions. And you're flirting with, if not outright committing, age discrimination.

An Ohio appellate court recently reinforced that lesson in Selzer v. Union Home Mortgage, reversing summary judgment for the employer and sending an age discrimination case back for trial.

Greg Selzer was a 64-year-old loan officer assistant. According to the record, his supervisors repeatedly pressed him about his retirement plans. Then came the email that mattered most: a vice president involved in the termination decision wrote that Selzer "keeps saying he will retire but hasn't." Another executive admitted that the purpose of that email was to justify why Selzer landed on the reduction-in-force list. And another employee confirmed that Selzer's proximity to retirement factored into the decision to terminate him.

The trial court bought the RIF explanation and dismissed the case. The court of appeals did not.

A plaintiff can prove age discrimination claims by direct or indirect evidence of discriminatory intent. In this case, the appellate court made clear that repeated inquiries about retirement when made by decision makers and tied to a termination decision qualify as direct evidence.

Yes, courts have said that merely using the word "retire" isn’t automatically discriminatory. But context matters. Here, the comments were frequent, made by supervisors, closely tied to the discharge, and—most damning—used as a justification for termination.

The employer argued it was just planning ahead. And believe me, I get it. When an employee eventually does retire, without proper succession planning, you could be caught off guard, scrambling to replace institutional knowledge and forced into a rushed and risky replacement decision. Courts, however, remain skeptical, and often recognize that "longevity" is just a proxy for age. Changing the label doesn't change the motive.

The takeaway for employers is simple:

Don't ask when employees plan to retire.
Don't speculate internally about retirement timelines.
And don't document retirement assumptions in RIF decisions.

Let employees retire when they choose. Support them in that decision. (I offer some tips on how to do that here.) Employees decide their retirement date. Employers don't get to decide for them—and those that try may find themselves staring down the barrel of an age discrimination lawsuit.

Ohio Employer Law Blog

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WIRTW #788: the 'it's a beautiful day' edition

Just Subpoena It.

Union activity Is not a license to be abusive at work

When does $5,000,000 not equal $5,000,000?

WIRTW #787: the 'accidents will happen' edition

If you can't force older employees to retire, how do you succession plan?

Mangement discussion of an older worker's "retirement" as age discrimination