Ohio Employer Law Blog

WIRTW #794: the 'philanthropy' edition

2026-04-03T06:55:00.045-04:00

On this week's episode of the Norah and Dad Show, we talked about what Delta Zeta has come to mean to her, and I couldn’t help but smile listening to her. Greek life was never my thing, but I'm genuinely glad it's hers. She’s found her people—and not just a social circle, but a group that aligns with who she is. That includes their focus on speech and hearing advocacy, which fits her empathy and curiosity (and maybe even career goals) to a tee. It's one thing to join an organization; it's another to find one that sharpens your perspective and pushes you to care more deeply about issues that matter. This one does both for her, and it shows.

Norah and I covered a range of other topics, including food poisoning, a preview of her upcoming trip to New York City, travel horror stories (including Times Square on New Year's Eve and a very questionable museum couch), and speed traps. You can listen via Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, your browser, and everywhere else you get your podcasts.

(If you are inclined to make a donation to DZ's philanthropy, you can do so here.)

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

Born Here Means Citizen. Period. — via Authoritarian Alarm

How Trump's EEOC is attacking DEI and emphasizing white people — via NPR

New Executive Order Bans "Racially Discriminatory DEI Activities" by Federal Contractors and Their Subcontractors — via Eric Meyer's Employer Handbook Blog

Coming Clean: Planned Parenthood Pays Half-Million $$ to Resolve DEI-Related Investigation — via Joe's HR and Benefits Blog

Does DEI still have a role to play in employer branding? — via HR Dive

Getting Ready for Agentic AI and Create an Onboarding Plan for AI Agents — via Harvard Business Review

Oracle Laid Off Thousands by Email—and That May Have Been the Right Call — via Improve Your HR by the Evil HR Lady, Suzanne Lucas

Can You Take a Joke? Fifteen Years Later, the Answer Is Still "Maybe" — via Dan Schwartz's Connecticut Employment Law Blog

Should I work from home if I have a cold? — via Ask a Manager

Are We There Yet? Reviewing Impasse in Union Negotiations — via EntertainHR

BrewDog's new owner: We must overcome 'stigma' of James Watt — via The Telegraph

Ohio Brewers Look Back to the Future — via Ohio Craft Brewers Association

Music Licensing Is Getting More Complicated. Here's Where Things Stand. — via Brewers Association

Mental Health Is Now a Retention Problem. For Some Employers, It's Also a Legal One.

2026-04-01T06:53:00.001-04:00

One in four employees have considered quitting because of their mental health.

Let that sink in.

Not compensation. Not commute. Not a bad boss. Mental health.

The latest NAMI-Ipsos Workplace Mental Health poll paints a pretty stark picture: employees are stressed, overwhelmed, and—critically—don't feel safe talking about it at work. Nearly half fear judgment. Even fewer trust HR or leadership with these conversations.

That's not just a culture problem. It's a retention problem. And, increasingly, a legal one.

What can employers actually do about it?

Start with the basics. The same NAMI-Ipsos survey found that more than 80% of employees want training on stress, burnout, and crisis response. Give it to them—not a one-off webinar no one remembers, but ongoing, practical training for both employees and managers.

Train managers to recognize warning signs—withdrawal, missed deadlines, sudden performance drops—and to respond appropriately. Not as therapists, but as informed leaders who know when to listen and when to escalate.

Make your resources visible and usable. An EAP buried in a handbook isn't a benefit. Regularly communicate what's available, how to access it, and normalize using it. If leadership never talks about these tools, employees assume they shouldn't use them.

Flexibility matters more than most employers realize. A significant share of the workforce is in what's sometimes called the "sandwich generation"—simultaneously caregiving for children and aging parents. For these employees, rigid schedules and unsustainable workloads aren't just inconvenient; they're breaking points. Thoughtful scheduling, remote options, and realistic workload expectations go a long way toward reducing burnout before it becomes a resignation.

And then there's culture—the piece that makes or breaks everything else. If employees believe speaking up will make them look weak or cost them opportunities, they'll stay silent until they quit. Leaders set the tone. When mental health is treated as legitimate and discussable, stigma starts to erode. When it isn't, all the EAP communications in the world won't matter.

Where does the ADA come into play?

Not every stressed employee has a disability. But some do.

When an employee's mental health condition rises to the level of a disability—and the employer knows or should know about it—the ADA's reasonable accommodation obligations are triggered. That doesn't require magic words. "I'm struggling with anxiety and need help managing my workload" can be enough to start the interactive process.

From there, the obligation is familiar: engage in good-faith dialogue and consider reasonable accommodations. That might include modified schedules, remote work, additional breaks, leave, or adjusted job duties.

Here's where many employers go wrong: they treat what looks like a performance problem as only a performance problem. An employee starts missing deadlines, disengages, gets a PIP—and no one stops to ask whether a medical condition might be in play. That's not just a missed opportunity. Depending on the circumstances, it can be a legal liability.

Ignoring the issue, or treating it purely as a conduct matter without exploring whether something deeper is going on, isn't a neutral choice. Once an employer knows or should know that a mental health condition may be affecting an employee's work, the obligation to engage has begun.

The bottom line

The mental health crisis in the workplace isn't going away. Employers who take it seriously—with real training, visible resources, flexible structures, and cultures where people feel safe enough to speak up—will have a meaningful advantage in retaining the people they've worked hard to hire.

Because if you don't create a workplace where people can cope, they'll find one where they can.

Employers can no longer count on private arbitration when sexual harassment is on the docket

2026-03-31T06:57:00.001-04:00

Employers love arbitration agreements. They keep disputes private and out of court.

Unless, that is, sexual harassment is in the case.

An Ohio appellate court just made that crystal clear in Hansbrough v. Marshall Dennehey.

The employer did what employers do. It pointed to a signed arbitration agreement and moved to compel arbitration of the employee's claims.

That used to be a strong move. Then Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. That changed everything.

The question in Hansbrough wasn't whether the plaintiff would ultimately prove harassment. It was much earlier in the case: did the complaint plausibly allege sexual harassment occurring after March 3, 2022 (the EFAA's effective date)? The court said yes.

And under Ohio's notice-pleading standard, that was enough. Once the plaintiff cleared that low bar, the EFAA applied. And once the EFAA applied, the arbitration agreement could not be enforced—not just for the harassment claim, but for the entire case.

Read that again. Not just the harassment count. The entire case.

That's the real takeaway. This wasn't a merits decision. It was a procedural one. But procedural doesn't mean unimportant. It means the fight over where the case gets decided—court versus arbitration—may now turn on how a complaint is drafted.

The court didn't need to reach a harder question—whether post-EFAA retaliation tied to pre-EFAA harassment would independently trigger the statute. The plaintiff's allegations of post-EFAA harassment made that unnecessary.

But don't miss what this means in practice. Sexual harassment claims rarely travel alone. They come bundled with retaliation, discrimination, and other statutory claims. And under the EFAA, one viable harassment allegation may keep that entire bundle in court.

Arbitration agreements no longer operate as universal shields.

If your risk analysis assumes you can push most employment disputes behind closed doors, you need to revisit that assumption. In fact, one well-pleaded harassment claim may be all it takes to blow up arbitration entirely.

The Supreme Court lowered the bar. Employers should take notice.

2026-03-30T13:26:00.001-04:00

Last year, in Muldrow v. City of St. Louis, SCOTUS rewrote what counts as an "adverse employment action" under Title VII. The old rule required something "materially" adverse—real harm. That's gone. Now, if an employee is left even a little worse off in the terms or conditions of employment, that's enough.

That's a big deal. It opens the door to challenges over everyday workplace decisions that courts used to dismiss as trivial.

But here's the nuance: the bar is lower—not nonexistent.

Enter Walsh v. HNTB Corp.

Walsh, a long-time IT employee, was placed on a performance improvement plan. She completed it. No demotion. No pay cut. She later resigned and claimed age discrimination, arguing that the PIP itself was an adverse action.

Under pre-Muldrow law, that claim was dead on arrival. Post-Muldrow? It at least gets a serious look.

The First Circuit acknowledged the new standard: any change that leaves an employee worse off in their job conditions can qualify. And importantly, it made clear that some PIPs will meet that test.

But Walsh still lost. Her PIP didn't actually change anything that mattered. No new duties. No reduced opportunities. No impact on pay, title, or advancement. The court called it what it was—"documented counseling."

That's the lesson. A PIP is no longer automatically safe. But it's not automatically actionable either. It depends on what it does.

A PIP can now be an adverse action if it:

📝 Adds worse or more burdensome responsibilities
📝 Limits promotion or transfer opportunities
📝 Impacts compensation or advancement
📝 Meaningfully alters how the job is performed

Walsh's PIP did none of these. So, the employer won.

But don't get too comfortable. Here's what employers should be doing right now:

First, draft PIPs like they'll be Exhibit A. Because they will be. Tie them to objective performance issues and avoid vague, subjective critiques.

Second, be careful about layering on consequences. The more a PIP changes how someone works—or what opportunities they have—the more it starts to look like an adverse action.

Third, stay consistent. Disparate treatment claims just got easier to plead and harder to dismiss early.

Fourth, train your managers. "It's just a PIP" is no longer a safe assumption.

Muldrow didn't take the bar away. But it dropped it. And Walsh shows how low employers now have to go to get under it.

The 3rd nominee for the Worst Employer of 2026 is … The Dead Baby

2026-03-24T06:46:00.000-04:00

Some cases hit harder than others. This is one of them.

A Hamilton County, Ohio, jury just tagged Total Quality Logistics with a $22.5 million verdict. The reason? It refused to let a pregnant employee work from home—despite two doctors' orders—and her baby died as a result.

Let that sink in.

Chelsea Walsh had a high-risk pregnancy. After an emergency procedure, her doctor ordered modified bed rest and remote work. Not optional. Not a suggestion. A medical directive aimed at keeping her pregnancy viable.

She did what employees are supposed to do. She asked.

Her employer said no. Not once. Repeatedly.

Even after a second doctor confirmed that working from home was necessary to prevent further complications, the company held the line. Come into the office. Or don't work at all.

Only after a third party intervened did TQL finally relent and allow remote work. But it was too late. Later that same day, Walsh suffered complications and delivered her daughter, Magnolia, at 20 weeks. The baby lived only a few hours.

A jury heard those facts and concluded that this wasn't just bad judgment, it was negligence that cost a life.

TQL says it "disagrees with the verdict" and is "evaluating legal options." Of course it does. What else was it supposed to say after a jury called them out for an indefensible decision.

Here's the part employers need to understand: this wasn’t a close call.

A pregnant employee. A documented medical condition. Two doctors saying "work from home." And a job that could have been done remotely. This is textbook reasonable accommodation territory.

Instead, TQL chose rigidity over humanity, control over common sense, and policy over people.

And now it owns a $22.5 million reminder that those choices have consequences.

If you're an employer still treating accommodation requests like inconveniences to be managed instead of obligations to be met, pay attention. Juries are. Which makes this an easy call for the latest nominee for the Worst Employer of 2026.

Employers can't outsource discrimination to an algorithm

2026-03-23T06:51:00.000-04:00

AI is new and shiny. Employment law is not.

Mobley v. Workday proves the point. The court concluded that employers don't get to outsource liability just because they've outsourced the tool to an AI vendor.

The plaintiffs, a nationwide class of job applicants over the age of 40, allege that employers' use of Workday’s AI-driven screening tools discriminates on the basis of age. Whether those claims ultimately stick is a question for another day. But the legal framework governing them is old, settled, and very familiar. Discrimination is discrimination—whether it's carried out by a hiring manager, a spreadsheet, or an outsourced algorithm.

What would have been surprising is the opposite outcome—if the court had said, "Not your problem, employer, your vendor did it." That's not how employment law works. It never has been.

If your hiring process produces a disparate impact, you own it. Full stop.

This case—and others like it percolating through the courts—should recalibrate how employers think about HR tech. AI doesn't create new legal obligations. It just exposes how seriously you're taking the ones that already exist.

So what should you be doing now?

Start with your contracts. If you're relying on a vendor's AI to source, screen, or rank candidates, you need to understand exactly how liability is allocated. Who is indemnifying whom? For what claims? With what caps and carveouts? "Trust us" is not a risk mitigation strategy.

Next, build audit rights into those agreements—and use them. You should have the contractual ability to test your vendor's tools for disparate impact and to obtain meaningful information about how those tools function. If you can't evaluate it, you shouldn't be using it.

Also, don't treat AI as a black box. You don't need to code it, but you do need to understand how it's trained, what data it relies on, and where bias might creep in. Speed and efficiency are great. Not at the expense of compliance.

Finally, own the outcomes. If a tool flags—or filters out—candidates, that's your hiring decision. Regulators and courts aren't going to draw a distinction between "human" and "machine-assisted" discrimination.

AI may be the new frontier. The rules governing it are not. Ignore that at your peril.

WIRTW #793: the 'Waterloo Sunset' edition

2026-03-20T06:50:00.000-04:00

Last Friday in Covent Garden, a street performer pulled me into his act.

"Where are you from?"
"America."

The boos came right on cue. Not playful. Not ironic. Real boos. Not from everyone—but from enough to feel it.

And yes, I knew they were coming. Anyone paying attention to how the world currently sees the U.S. knows. Still, hearing it live hits differently. It stings. Because I hate being cast as the villain—especially when I oppose with every fiber of my being everything that America has become since January 20, 2025.

But in that moment, none of that mattered. I wasn't me. I was "America."

That's the point.

The rest of the world isn't parsing our politics the way we do. They're not distinguishing between voters and non-voters, between MAGA and anti-MAGA. They see the country. Full stop.

The passport does the talking—and right now, it's not saying anything flattering.

To be clear, that moment wasn't my overall experience. Over six days in London, everyone we met was warm, welcoming, and eager to talk. And when the conversation turned to U.S. politics, the reaction was universal: They hate Trump. Not politely. Not abstractly. Viscerally.

But here's the uncomfortable truth: even when people separate you from the politics in conversation, the reputation still sticks at a distance. Countries are judged by what their governments do. Period.

And when a nation elects leaders who attack democratic norms, cozy up to authoritarians, alienate allies, and uproot the world order without thought or care for the global consequences, the world doesn't carve out exceptions for those who voted the other way.

They just see the country. Which means we carry it—all of us.

That's frustrating. It's unfair. It's also reality.

For a long time, Americans treated politics as a domestic sport. Something that affected us internally. Not anymore. The damage is global. And it shows up in small, uncomfortable moments—like a crowd booing when you say where you're from.

That moment wasn't about me. It couldn't have been. They didn't know me. All they knew was that I'm American—and that alone was enough, because their reaction was about what "America" currently represents.

Reputations aren't permanent. They're earned. They can be lost. And, with hard work, they can be regained. If we don't like how the world sees us right now, there's only one way to change it. We don't get to shrug it off. We don't get to pretend it's not our problem. It is our problem. And it's time we started fixing it.

* * *

To hear a full recap of our Spring Break (or Spreak, as my daughter calls it) adventure in London, tune into this week's episode of The Norah and Dad Show, available via Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, your browser, and everywhere else you get your podcasts.

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

Meet the former feds operating a 'shadow' EEOC — via HR Dive

Bostock, Executive Orders, and the Evolving Framework for Gender Identity Discrimination — via Dan Schwartz's Connecticut Employment Law Blog

The EEOC Continues to Take a Stand Against DEI Programs — via EntertainHR

Target, Boycotts, and Diversity — via The Chief Organizer Blog

Amazon's AI push runs into employee friction — via Ragan

Our Favorite Management Tips on Leading with AI and AI and the Entry-Level Job — via Harvard Business Review

How AI is actually changing day-to-day work — via The Guardian

Developing AI Literacy in Law Students — via ADR Prof Blog

Sixth Circuit Slaps Steep Sanctions on Two Lawyers for Fake Citations and Misrepresentations in Appellate Briefs — via Robert Ambrogi's LawSites

14 Unhinged Workplace Stories That Prove HR Professionals Deserve a Medal — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Filed under "duh": Throwing paper clips at work undermines a retaliation claim. Secretly filming your boss doesn't help either. — via Eric Meyer's Employer Handbook Blog

Workplace Culture Risk and the Washington Commanders Case — via The Emplawyerologist

'Microshifting' puts a new spin on 9-to-5 schedules — via Associated Press

OSHA Launches "Cares" Initiative Emphasizing Prevention, Collaboration on Workplace Safety — via Joe's HR and Benefits Blog

Reject the SAVE Act 2.0 — Protect Voting Rights and Passport Access for Married Women — via MomsRising

Phones Down. Beers Up! — via Brewers Association

Lawsuits aren't lottery tickets. Or at least they shouldn't be.

2026-03-19T06:54:00.002-04:00

Too often, plaintiffs' lawyers file thin, borderline frivolous employment claims hoping for a quick nuisance-value settlement. The math is simple: it's cheaper for an employer to pay a few thousand dollars to make a case disappear than to spend tens (or hundreds) of thousands defending it.

And yes, sometimes that works. The business case often just makes sense for businesses.

But not always. Plenty of employers—especially those who believe they've done nothing wrong—will dig in and fight. Hard.

That's where the real disservice to the employee begins.

Even on a contingency fee ("you don’t pay unless you win"), litigation isn't free. Filing fees. Deposition transcripts. Expert costs. E-discovery. Those expenses add up, and they don't magically disappear just because the claim is weak. And if the employer wins on summary judgment or at trial, it can seek to recover its costs from the plaintiff—along with attorneys' fees where a statute or agreement allows.

Moreover, a lawsuit can poke a sleeping bear. An employer that might have shrugged and moved on suddenly has a reason to scrutinize everything—including an unemployment claim. If the employer contests and wins, the employee may be on the hook to repay benefits already received. For a low-wage worker living paycheck to paycheck, that clawback can be financially devastating.

All for a case that never had real merit to begin with.

Everyone deserves their day in court. But a day in court means something. It's not a bargaining chip. It's not a shakedown dressed up in legal briefs. When lawyers file cases they know are weak, it's extortion with a filing stamp on it.

So, to business owners: stop reflexively writing the nuisance check. When you settle a bad case, you don't just pay to make one problem go away—you advertise that the strategy works. Fight the ones that deserve to be fought. Make the calculus harder.

Because the best way to discourage this practice is to make sure the math stops working.

5 steps for an employer to win an off-the-clock overtime claim

2026-03-18T08:44:00.001-04:00

Jerry Merritt, an agency manager for the Texas Farm Bureau, claimed 816 hours of unpaid overtime. Even assuming he had been misclassified as an independent contractor, he still lost.

Here's why.

Merritt ran his role with near-total autonomy: He set his own schedule. He chose how much to work or not work. He didn't track or report hours because the company paid him on a commission (over $500k/year).

Even assuming he was an employee entitled to overtime, he still had to prove one thing:

👉 His employer knew—or should have known—he was working overtime.

A jury said no. The 5th Circuit agreed.

The key rule upon which the court relied: No knowledge = no overtime liability.

Merritt argued: "You let me work as much as I wanted."
Not enough. Flexibility ≠ knowledge.

He argued: "You didn't track my time."
Still not enough. Lack of records ≠ constructive knowledge.

He argued: "I didn't have to tell you when I was working."
Wrong. How else was the employer to know he was working.

Step back and look at the result:
Misclassification (assumed)
Significant overtime
No time records
…and the employer still wins. Because it lacked actual or constructive knowledge.

Before anyone gets the wrong idea, this case is not a green light to ignore timekeeping. It's a reminder of where the real risk lives. Most employers don't lose overtime cases because they lacked knowledge. They lose because the facts show they should have had it. That's the difference between winning and writing a check.

If you want to stay on the right side of that line, here are a few practical takeaways:

First, make it crystal clear that employees must report all time worked. Not some. Not "approved" time. All of it.

Second, train your supervisors and managers. If they see employees working late or through lunch, responding to emails after hours, or grinding through weekends, they can't just shrug and move on. That's how "we didn't know" turns into "you should have known."

Third, pay for the time that gets reported—even if it violates policy. You can discipline the violation. You can't withhold wages.

Fourth, don't build a culture that quietly discourages overtime reporting. Courts see right through that.

Fifth, and finally, be careful with autonomy. It helped this employer because the independence was real. No oversight, no visibility, no reason to track hours. But autonomy won't save you if it's just a convenient way to avoid looking too closely.

You're responsible for what you know. You're also responsible for what you should know. But you're not automatically responsible for what an employee chooses to do—on their own, without telling you, and without giving you any reason to suspect it's happening. That distinction made all the difference here.

Bribery scandals don't start with bad employees; they start with bad culture

2026-03-16T06:47:00.000-04:00

When a bribery scandal hits a company, the corporate response is almost always the same: These were bad employees acting on their own.

Maybe. But usually not.

Consider the current mess involving Southern Glazer's Wine & Spirits, the largest alcohol distributor in the United States.

Federal prosecutors have charged several of its former executives in a long-running scheme to bribe a grocery-chain wine buyer in exchange for favorable product placement in stores. The alleged perks weren't subtle: prepaid gift cards, electronics, luxury travel, golf trips, and even cash. According to prosecutors, some of the payments were disguised in company records as "seminars" or marketing expenses.

The alleged conduct stretched from 2016 through 2024 and involved high-level sales leadership—vice presidents and sales directors—not just a rogue account rep.

That's not a coincidence.

When misconduct runs for years and involves multiple managers, the issue isn't just the employees. It's the environment they were operating in.

Sales cultures are especially vulnerable to this dynamic. When revenue and shelf space are the only metrics that matter, employees quickly learn what really counts—and what doesn't. If leadership celebrates results without asking too many questions about how those results were achieved, the message becomes clear: win first, worry about the rules later.

And once that message takes root, the slope gets slippery fast.

First it's bending the rules.
Then it's "creative" expense reports.
Then it's something that starts to look a lot like bribery.

Quality companies understand this risk. They don't give star salespeople or executives a pass on bad behavior just because they're hitting their numbers. In fact, the higher someone climbs in the organization, the higher the standard should be.

To be clear, the executives charged in the Southern Glazer's case are presumed innocent. The allegations still need to be proven in court. But the facts prosecutors describe—multi-year conduct, falsified records, multiple participants—are the kind of allegations that rarely happen in a vacuum.

Companies don't get bribery scandals because one salesperson wakes up and decides to break the law.

They get them because culture quietly signals that results matter more than integrity.

Compliance policies don't define a company's culture.

What leadership rewards—and ignores—does.

If your sales team believes that hitting the number will get them praised no matter how they do it, you've already planted the seeds of your next compliance crisis.

By the time the indictment arrives, the problem didn't just start. It's been fermenting for years.

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

Ohio Employer Law Blog

WIRTW #794: the 'philanthropy' edition

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