Michael Vandervort, Jon Hayman & Phil Wilson.
Michael Vandervort: [00:00:10]
Hello, everyone. We’re back with another edition of The Left of Boom show. Today, we’re going to talk about something that is often talked about in the world of labor relations. And that’s Starbucks and all the impact that that campaign has had for the last couple of years on creating all kinds of opportunities for Starbucks and many other employers to respond to. It’s it seems like there’s never a day where you can’t find something to bring up related to that topic. So, Phil and I are going to chat with one of our favorite labor lawyers, Jon Hyman. Jon, welcome to the show. How are you doing today?
Jon Hyman: [00:00:44]
I’m doing good. Thanks for having me.
Michael Vandervort: [00:00:46]
Absolutely. Glad you were able to join us. We’ve been pretty consistent in going through and saying yes, Starbucks is probably never going to give a contract to the Starbucks Workers United. Why would they? Well, that seems to have taken a big shift here. They’ve engaged in a couple of rounds of negotiations. They’ve stated they want to reach an agreement. And so, I guess we’ll start with whether you think, Jon, we need to retract our prediction and maybe make a secondary pick. What’s your take on it?
Jon Hyman: [00:01:19]
I say go big or go home. I’m going to stick with my original prediction despite all the tea leaves that might point otherwise. No, the reality is that they will probably be contracts. Starbucks management ownership at the corporate level has clearly signaled a shift in their tone towards their employees and the union, and all indications are that they’re going to keep meeting, bargaining, and working towards contracts. And it might take a while, but I think that they will get those contracts eventually.
Phil Wilson: [00:02:01]
Yeah, I think that’s right. I think it’s up to the SEIU. Previously, I would have said it, Starbucks is unlikely to agree to a contract. And the transition that’s happened has totally changed that. I think Starbucks would like to get a contract, stop spending all this money on legal fees, and put this as far behind them as they can. The SEIU is going to have to achieve a deal, and that’s the part that …
Jon Hyman: [00:02:36]
It certainly does take two sides to bargain. And so, I suppose the SEIU could dig their heels in and say we’re going to shoot for the moon and we’re not going to agree to anything until you give us that moon. And they might do that. I think they probably do want a contract though. The Starbucks piece is interesting because they did spend, I don’t know, tens of millions of dollars in legal fees. A quarter billion, I think, was a number. One of the numbers I saw floated around. A ridiculous amount in legal fees.
[00:03:13]
They took a massive PR hit as a result of their opposition to organizing. A good-sized tranche of their shareholders had enough and the change in management clearly has signaled a different tone. And so, there was certainly a willingness on that side of the table to get a deal done. If the SEIU is doing what they’re supposed to do, they should want to get a deal done for their members as well. The cynic in me says maybe they have another agenda they’re trying to push here and maybe their maybe their members aren’t their prime agenda here.
Phil Wilson: [00:03:51]
I agree with that. But I do think their prime agenda is to get this deal to be able to trumpet to the world that they got a deal. And that’s why I do think there will be a deal. I think because of that, I don’t think it’s going to be anything dramatic, but it doesn’t really have to be. Like Michael brought up just a second ago, they got just cause. I’ve been making the argument. I would love to hear your comment on this, but I’ve been telling clients for a couple of years why wouldn’t you just give just cause? Get rid of the at-will clause in your handbook and just put …
Jon Hyman: [00:04:29]
I agree with you 100%. A bunch of years ago on my blog, The Ohio Employer Law blog, I wrote an obituary for employment at will. That was the name of the post. And the point was there are so many exceptions to employment at will now, it doesn’t exist anymore. And so, I would never. If a client came to me and said, “I want to fire an employee.” All right, so where’s the paper trail? “There is no paper trail.” Why do you want to get rid of him? “I don’t like him.” No! You can’t do that.
[00:05:03]
You need to have the paper trail. You need to have the reason. You need to have documentation. You need some level of progressive discipline so that the employee is not feeling ambushed because employees who feel ambushed run off to their friendly neighborhood plaintiff-side employment lawyer. And that’s how lawsuits get started.
Phil Wilson: [00:05:22]
And you got to be able to defend that lawsuit. Even if you are at will and that’s the presumption, if they say it was illegal termination, you better be able to defend that case or you’re spending a bunch of money in legal fees and probably damages.
Jon Hyman: [00:05:42]
Yeah. Judges and especially juries. Without the paper trail, you’re going to get to a jury. No judge is going to grant you a summary judgment. And juries like paper. They want to see the paper trail. They want to see the documentation. They want to know that the employee had notice and that there was an opportunity to fix deficiencies and all the things that, you know, we think of when it goes into this idea of just cause that we build in under union contracts.
[00:06:08]
And without that, you’re putting people like me in an impossible position to defend that termination in a lawsuit. I don’t counsel businesses to fire without just cause. So, I agree with you. It’s an easy give but businesses still don’t like giving it when they don’t have to.
Phil Wilson: [00:06:31]
And back to Starbucks, I feel like this agreement is probably going to be mostly me too. It’s not like Starbucks was some horrible employer before, notwithstanding the whole PR campaign. They provide great pay and benefits for the jobs that they offer. They were considered top of the heap before this whole thing started. And I think the natural end zone for a situation like this is they’re going to get an agreement that’s pretty much what most Starbucks workers already have.
[00:07:05]
And there will be a handful of things that will be a little bit different, like just cause that will be trumpeted and they’ll say, “These workers have it guaranteed in writing. The non-represented ones don’t.” And that will be the giant win. And that’s what they need to really, first of all, get dues money flowing. And then also be able to then trump it to the rest of the world, like, look, this is a good thing and you should sign up too.
Jon Hyman: [00:07:32]
Yeah, I think you’re right. The union has already won the PR war here. But I think you’re right. I think they do need a win at the bargaining table to take the next step, which is the “and it was worth it.” And all these employees losing their jobs, all of the time we spent organizing and all the time we spent at the table, it was all worth it to get this for these workers. I think you’re right.
Michael Vandervort: [00:08:01]
The other thing that’s happening kind of under the hood is in the last week or so, the last ten days. There have been an additional 20-ish Starbucks that have filed petitions. This isn’t going away. So, Starbucks is literally morphing into a partially unionized company. And if they get an agreement, they’re going to see more of that. That’s an inevitable concession. Phil, you had a take on this for a long time about the whole campaign that SEIU and Workers United, or whichever group you want to talk about by name, were the dog that caught the car. They didn’t know what to do with this. And I guess now we’re finally starting to see where to your point, they want to land some sort of a win. It doesn’t have to be a home run, maybe.
Phil Wilson: [00:08:56]
My comment at the beginning of all this, or as it was going, was they didn’t whiteboard 500 stores organized when they were launching this campaign. But it happened and then it became World War Three. And it looked for a while like they weren’t really going to get anywhere. They weren’t going to get an agreement. It was just going to be swamped in litigation forever. And there has been a fair amount of that. We’ll be talking about one of the cases in a minute. But it really worked out. I don’t think they could have planned it the way that it’s worked out. It probably couldn’t have worked out better for them.
[00:09:39]
They have achieved getting Starbucks to the table. Starbucks is playing nice in the media and it looks like at the table. They’ve made some major concessions on things like even if it’s not going to be a national contract, it will be a pattern agreement that will apply at basically every store. They’re allowing hundreds of people to participate in the bargaining. So, they’ve given in on a lot of things that I think a lot of employers wouldn’t have. And those are all big wins for the SEIU.
Michael Vandervort: [00:10:17]
Yeah, totally. In fact, let’s switch over to that case. So, this is the dance in that Starbucks has compromised and started to try to make some sort of arrangement or peace deal or whatever you want to call it. But they haven’t abandoned every one of their efforts. And they had a very significant case in front of the Supreme Court over the firing of a number of employees at a store in Memphis- the Memphis Seven. And that decision just came down yesterday. So, do you want to set that up for us and talk about that for a minute?
Jon Hyman: [00:11:07]
Yeah. The case dealt with what’s the standard for the board to get injunctive relief under Section 10J of the National Labor Relations Act. And there was a big split among the circuits as to what the standard is for injunctive relief. Is it reasonable cause that the act has been violated, or should courts apply the traditional injunctive standards that we apply in every piece of civil litigation, like success on the merits or the likelihood of success on the merits, irreparable injury, harm to the public, public interest, etc.
[00:11:46]
The Supreme Court said an injunction is an injunction and there is nothing in the act that would suggest that we should deviate from the same four factors that we apply in every case that we consider injunctive relief. And that the circuits including the Sixth Circuit, where that case came from, that apply the reasonable cause standard are applying the wrong standard, and they should apply the same four-factor analysis that every court does or that is applied in every other instance when a litigant comes into court seeking injunctive relief. So, on paper, it looks like a win for employers. I know, Phil, you, I think, had a thought that this probably might not be the win that maybe some of the talking heads are saying it is.
Phil Wilson: [00:12:38]
Yeah. My comment has been it’s a Seinfeld episode. It’s a decision about nothing. It is marginally now harder in some circuits. So, in half the circuits-ish, the General Council had to meet this same four-factor burden anyway and brings in junctions all the time and wins and junctions in those jurisdictions. So, that is the law in about half the places. Now it’s the law every place. But that’s really basically all this case decided. This exact case, the Memphis Seven case is going back to district court, where the district court will use the four factors instead of the reasonable test and will probably issue an injunction.
Jon Hyman: [00:13:24]
Probably. I doubt the district court’s going to change its mind in terms of the result.
Phil Wilson: [00:13:29]
They didn’t like the facts the first time. I think they’ll probably figure out a way to say “You’re likely to succeed. This is irreparable harm.” I don’t think this decision is going to be any different. I think the Supreme Court made the right decision. I thought it was really interesting it was 9-0. Ketanji Brown concurred in the result it still feels like the board deserves more deference than the other eight justices were giving them. But other than that, like I said, it’s not that big of a change.
[00:14:05]
And I don’t think it really practically changes anything on the ground in terms of employers shouldn’t change their behavior. Don’t discriminate against employees exercising their [crosstalk 00:14:16].
Jon Hyman: [00:14:17]
Don’t fire organizing workers.
Phil Wilson: [00:14:19]
Yeah. The general counsel is still going to seek injunctions, probably in exactly all the same cases that they seek them now. My big thing is, going back to irreparable harm, I will say that that point is really important in a lot of these 10-J cases because the general counsel sits around on these cases for a year or more and doesn’t immediately go in and seek an injunction. And there are district courts that will look at that and go, look, you already have a case in front of an ALJ who is investigating all the actual facts of what happened and making credibility determinations. And that’s the place where this should be decided, not here at district court in a rapid review that doesn’t have discovery and so on.
Jon Hyman: [00:15:13]
I’m in the middle of litigating a case. The case didn’t end, but the plaintiff went in seeking an injunction on a non-compete. But they waited 11 months to go to court and file. I got to stand up in front of the judge, Common Pleas judge here in Cuyahoga County, Ohio, and be like, Where’s the fire drill? They’ve known about this for 11 months, and now they come into court seeking an emergency order that this is some emergency relief they need to stop some glaring, irreparable harm. They’ve known about it for 11 months. So, whatever irreparable harm existed to create this emergency 11 months ago, it doesn’t exist anymore. So, what are we doing here?
Phil Wilson: [00:15:56]
Right, exactly. And district court judges, it obviously depends on who you’re in front of, but you know that they do look at that and go, “Is this really an emergency? Why are we wasting our time here? Just go prove your case to the judge that’s actually hearing all the facts and deciding this thing and let them decide it.”
Jon Hyman: [00:16:24]
Yeah. The other piece of the irreparable injury prong of that test is that courts have said forever that if money damages can remedy the harm, you don’t really have an irreparable injury. And so here you have seven fired employees. They’re owed some back pay. It looks like money damages. If I’m Starbucks, that’s my argument. It’s a money damages case. There’s nothing irreparable here. And the union will argue the irreparable injury isn’t to those seven, but it’s to all the other workers who now are fearful for their jobs. And we need to protect their jobs. And you’re trying to intimidate them and force them to do things that they would otherwise not do if left to their free choice.
[00:17:05]
And so, there are countervailing arguments, but on its face, when you’re dealing with a fired employee who lost some pay, the damages look like money damages to me, which courts always say is not irreparable injury.
Phil Wilson: [00:17:16]
Yeah. But even in that argument, the store unionized, even if you’re saying it somehow squelched section seven rights or chilled the exercise of the rights- they exercised them. There’s no even harm there.
Michael Vandervort: [00:17:35]
There were some really weird facts on that case, too. I didn’t read the case recently, but as I recall, they invited the press into the store after hours or something. There were quite a lot of weird circumstances in this whole thing as well.
Phil Wilson: [00:17:54]
Sorry to belabor this, but if you go to the ALJ decision, the facts were not fantastic for Starbucks in this. There were there were lots of exceptions made to after-hours access to stores. When I first read the ALJ decision, I was like, I’m not sure they really want to go to war over this. And then going back to what we originally were talking about, one of the things I thought was interesting is that the SEIU came out and was like Starbucks should have withdrawn this case.
[00:18:32]
Why did they let this go all the way to a Supreme Court decision? Were supposedly working together on things, and yet they’re continuing to these legal battles. And I think that that is an interesting point. I’m glad that they did it, and I’m glad that this issue is settled. But it’s an interesting point.
Michael Vandervort: [00:18:53]
Yeah. Like I said, part of the dance, I guess. You don’t give up everything just because you want to compromise or reach an agreement. I don’t know what the reasons are, but they must have some because you don’t go to the Supreme Court on a whim, generally speaking. So, this is not the only case, the only employer that had- and we don’t need to get too deeply in the weeds on this other case. But there was an Amazon case where the ALJ had issued a broad cease and desist order and that was thrown out.
[00:19:20]
And then there are other decisions pending in front of the Supreme Court related to the Chevron doctrine. So, unions are enjoying organizing success wins, etc., and the courts at various levels, but especially the Supreme Court seem to be more pro-business. So, I’m curious, is this a pushback against the NLRB? Is it is the law changing? Where do you guys think this is all going to shake out with these kinds of conflicting pressures in the legal system?
Jon Hyman: [00:19:53]
Well, the Chevron piece is probably the least publicized case that could most significantly change the way our government works. Chevron has been the law of the land for 40 years. In a nutshell, the Chevron decision said that if Congress expressly speaks on an issue, that closes. That’s the end of the story. If Congress hasn’t expressly spoken through a law, if an agency’s interpretation of a law is reasonably grounded in the law, then the agency’s interpretation can stand.
[00:20:28]
And that is now being challenged not in an employment case, but it’s in a case involving, I think, environmental regulations. But all the tea leaves point to Chevron deference at being the deference to an administrative agency’s interpretation of a statute through its own regulations as going away. And that is going to significantly change how every federal agency works. It’s going to change how the NLRB interprets the National Labor Relations Act, on a variety of issues from how it interprets protected concerted activity, to organizing rules and election rules. And it could potentially change fundamentally the relationship or how we understand currently the relationship between unions and employers.
[00:21:26]
It could change how the Department of Labor issues like wage and hour regulations, how OSHA regulates through OSHA standards, how the EEOC interprets. Regulation just came out interpreting the Pregnant Workers Fairness Act, people have issues with that because it says employers have to give employees time off for abortions or fertility treatments, and so people are up in arms over that. And this decision could throw out those regulations. So it really is, if the decision comes down the way a lot of us think it’s going to come down, it’s going to be paradigm-shifting for how federal agencies do their business.
Phil Wilson: [00:22:08]
And it’s interesting, DOL just took out of a couple of briefs arguments around Chevron deference. I think they’re assuming the sale. I think they already know this argument’s going away and they’re taking it out. I also thought it was interesting. This isn’t exactly Chevron, but I think it’s the same basic idea. The SEIU came out yesterday I think and asked the NLRB to stop its joint employer rule-making. Stop rulemaking. Let it go away and just do this through decisional decisions versus rule making.
[00:22:50]
And I think a big part of that is the same idea of look, the circuit courts when they get a hold of this stuff, they’re going to make law that we’re going to be stuck with. And here I’m speaking for the labor side. They’re going to make law that we’re going to be stuck with for a long time that we’re not going to like. And I’ve been making that same argument for a while. You can try to push the National Labor Relations Act as far as you want to, but once the circuit courts get a hold of it, it’s not just they go, oh, we disagree with you. It’s like no, here’s the law going forward and it’s the opposite of what you wanted.
Michael Vandervort: [00:23:29] So, buyer beware maybe a little bit.
Jon Hyman: [00:23:33]
Yeah. It is a little bit the law of unintended consequences. The lack of deference is going to cut both ways depending on how the winds blow at the agency in any given administration.
Michael Vandervort: [00:23:46]
Interesting. Let’s pivot to one more labor issue. It’s not really an issue, labor topic, I guess. So, Jon’s a labor lawyer. He’s also a beer lawyer, which others amongst us enjoy that topic as well from time to time.
Phil Wilson: [00:24:05]
Beer needs great representation.
Jon Hyman: [00:24:08]
Yes. And lawyers need great beer. So, it definitely works both ways.
Michael Vandervort: [00:24:14]
Fair point.
Jon Hyman: [00:24:15]
The world needs both.
Michael Vandervort: [00:24:17]
Professionals respecting each other’s professions. Anyway, the story came out late last week. The guy who owns Chobani, who’s a billionaire apparently from owning Chobani has decided to go and buy the assets of the Anchor Brewing Company, which is a 120-some-year-old brewer that unionized a few years ago and went out of business last year due to financial crisis. He announced that he was going to resurrect the brand and bring it back. And so, immediately, the union members, I think there were 39 of them, stood up and said, “Great. We can’t wait to get our jobs back.”
[00:25:00]
But it doesn’t really work that way in this situation because I understand this was an asset purchase, at least based on what I read in one article that I saw from the San Francisco area where their anchor had been based. So, do you guys want to talk about asset purchase versus- and what happens with successors and all that sort of stuff?
Jon Hyman: [00:25:19]
Yes. Everything I’ve read suggests this was an asset purchase, and I have no idea why the buyer would have acquired this in any other way. I don’t know why you would have bought the stock of a closed company. That makes zero sense to me. You have this closed-up brewery. You have all their equipment that’s sitting there. You have all their IP, their trademarks, and the like. And that’s what you buy. I can’t imagine anyone would have advised the Chobani guy to buy this as a stock sale.
[00:25:49]
If it was a stock sale, the answer is easy. The union and the collective bargaining agreement go right along with and the new owner just steps into the shoes of the old company as if nothing changes. In an asset deal, it’s really going to depend in large part on how which employees are hired. And if a majority of the current workforce is made up of, employees of the old employer, then there’s going to be a presumption that a majority of the current workforce supported the union the same as the old employer.
[00:26:25]
The same as they did with Anchor Steam version 1. And there’s going to be a really good argument for the union to make that Anchor Steam version 2 should recognize the union and move forward with that union in place.
Phil Wilson: [00:26:43]
Well, we make some amazing beer in Oklahoma, so my advice to Chobani is to move the equipment.
Michael Vandervort: [00:26:53]
Get out of San Francisco.
Phil Wilson: [00:26:56]
Just go. Don’t hire the folks that are in San Francisco and then you’re in good shape. A lot of people think that, oh, wow, you’re going to reopen the company and it was unionized, and so it’s automatically unionized. As you just said, that’s not typically how it works because most of the time it’s an asset sale. And then it becomes this whole issue of do you rehire the employee compliment from the prior company. It’s a little in the weeds, but it’s an interesting it’s an interesting point.
[00:27:39]
A lot of employees who are voting in unions right now don’t get any of this stuff. Everyone gets really mad when you try to explain hey, here’s how the law works. But you really should understand how the law works before you decide you’re going to pay money for representation and it’s going to take you years to get an agreement, and the agreement might not be any different or better than what you have now and could even be worse. All that stuff never really gets explained, and you just get to figure it out the hard way.
Jon Hyman: [00:28:14]
Yeah. And by the way, the employer could decide just to close up shop, sell its assets to someone else who might decide to reopen it, and not hire you. And now, business a is now business b, but business b, you don’t have a job with business b, and all that time and money you spent was for naught.
Michael Vandervort: [00:28:35]
In the school of hard knocks piece here, I’ve been through many times in my HR career where we’ve closed unionized facilities or nonunionized facilities. There are certain things that you’re obligated to do in those circumstances, but it really depends on what’s in the contract. And most labor agreements don’t have 100% prohibition against transferring work or closing a plant down. And unions really don’t have a lot of ability to prevent that in most cases. They can negotiate for severance. They can negotiate for decision. They have a hard time preventing a business that wants to shut a location down from doing so. Most people think they can, but they really can’t.
Phil Wilson: [00:29:18]
Yeah. I do feel like it’s important to make crystal clear it is illegal for a company to close down a business, and try to reopen it nonunion somewhere else or to refuse to hire people that used to work in a unionized business to try to keep it nonunion. There are a lot of rules and they’re there for very good reason. It should not be a thing that you shut down a business for the sole purpose of getting rid of a union.
Michael Vandervort: [00:29:54]
Yeah. And that’s not at all what I meant. We were making pure business decisions based on economics or whatever without union animus. That’s super important that the decision be made in that context.
Phil Wilson: [00:30:10]
But the flip side of that is the general counsel is asking to reopen stores that were closed down for more economic reasons and would have been closed down anyway. And those stores should not be reopened like that. The employer has a right, a clear right. And by the way, an employer has a right to shut down a store because they hate the union that’s there as long as they’re not reopening the business or trying to reopen. There’s clear case law that if your reason is because you don’t like the union, as long as you’re actually going out of business, you can you can do that.
Michael Vandervort: [00:30:51]
Right. Because the board can’t really force you to operate a business against your will.
Phil Wilson: [00:30:55]
Right.
Michael Vandervort: [00:30:56]
Most cases.
Phil Wilson: [00:30:57]
Yeah.
Michael Vandervort: [00:30:58]
So, Jon, before we move on to a couple of other things, I know it’s been up and down in the labor side of your practice, but is there anything else going on that’s interesting or hot right now, or has cooled off in that sector?
Jon Hyman: [00:31:12]
What’s interesting is that when all of the organizing was going on nationwide over the last 2 or 3 years in hospitality, I thought for sure we were going to see a huge surge in the craft beer space as well. And we never really did. There were pockets. There was Creature Comforts down in Athens Georgia that tried to organize. They lost their election. There were a couple of other breweries around the country that tried to organize. In one case, they shut the brewery down rather than face the union.
[00:31:58]
There was here in Cleveland a number of years ago, Great Lakes Brewery, which is one of the big granddaddy of craft beer here in here in Ohio. Their employees signaled that they wanted to organize and that died out. I had heard that when the employees started talking about forming a union and a Facebook group went live, “Let’s Organize Great Lakes”, the company found out what the employees wanted and just gave it to them. They wanted raises and better benefits, the company gave it to them, and that shut that down. Great Lakes Drives just filed a petition, so while the brewery and the taproom employees remain nonunion, their truck drivers just filed a petition to organize.
[00:32:49]
So, that’s just started this week here in Northeast Ohio. But by and large, the beer industry itself on the organizing front has been really, really, really quiet. And it’s really surprised me given the age and the activism of the type of people that will typically work in a brewery in a tap room. It has surprised me that the enthusiasm that led 500 Starbucks stores to organize has not spilled over.
Michael Vandervort: [00:33:22]
Interesting. So, that does it for beer. Although it is Friday, and it’ll be 5 o’clock in a few hours, so we’ll see what happens later. You mentioned your blog earlier. You’ve been a blogger for a long time. Won some recognition. And it’s something that you do almost every day. But one of the big things that you do each year (and it’s funny, I’m going to tell you a little story about this question in a second) is the worst employer list that you create throughout the year.
[00:33:52]
One of our mutual acquaintances, we were in a chat group, a text chat, and I shared something that you posted. And this other individual that Phil and I know was like, ‘Yeah. Well, that’s going to get him in trouble in his law practice. Calling out an employee.” It’s like an HR guy who didn’t really like to see a labor lawyer calling out an employer. So, when we started talking about doing this show with you, Phil said, “We should ask you a real deep meta question and start out with why do you do this? Why do you create the worst employer list? And what’s the story behind it?”
Phil Wilson: [00:34:30]
First of all, you post amazing stuff all the time, but some of my favorite stuff you do is the worst employer. I think it’s brilliant. Go ahead.
Jon Hyman: [00:34:40]
I would question the bona fides of any HR person who would try and defend the actions of anyone who appears on that list. It’s really awful, awful, awful stuff. The next nominee is going live on Monday. I think it’s the 7th or 8th for this year, and it is an employer that had a wage and hour complaint. In a restaurant, their employees file a wage and hour complaint over management taking money out of the tip pool. And among other things, threatening to have workers deported.
[00:35:15]
One of the owners of the business goes and finds out where one of the employees is now working. The employee quits and goes to work for another restaurant. Goes to his new place of business and threatens to kill him if he continues to help the DOL in their investigation. This is indefensible stuff. The reason why I do it is because I think people need to know and understand that there are lousy employers out there and that there are employers out there who have bad intentions. And if we don’t call them out for their behavior, I think we’re complicit in allowing this behavior to go unchallenged and unchecked.
[00:35:53]
So, yes, I’m an advocate for employers. But in being an advocate for employers, I feel that I can do much more. I help employers more by helping them remain compliant within the bounds of the law than by defending them when they do crappy things. No good comes from someone defending someone going to someone’s place of business saying, “I’m going to kill you.” Or someone using racist words. One of the prior year’s winners was someone not running a background check and finding out that someone was a convicted sex offender, and then that person goes and stalks and kills a female employee that he had taken a shine to.
[00:36:40]
Nothing good comes from not calling out that kind of behavior. We should call it out. We should hold people accountable for it. It’s horrible. If you appear on my list, you’ve done something really, really, really wrong that you should be called out for. So, yeah, I’m an advocate for employers, but I’m doing my job for employers by maintaining that list every year. It’s also really fun to do, especially when you get to December and people vote on it.
[00:37:12]
It’s fun to see how it shakes out and the psychology of what people think of as degrees of awful. I find the psychology of that really interesting. But as employers, as HR people, as advocates for employers, we should support that kind of behavior being called what it is, which is just awful and indefensible.
Phil Wilson: [00:37:34]
Yeah. The union side likes to, particularly us, and I assume you get a lot of this too, bash us as we’re protecting these horrible employers when nothing could be further from the truth. Our mission in life and what gets me, Michael, and the rest of our bunch out of bed in the morning is helping our clients create extraordinary workplaces. That’s what we are all about. And yeah, occasionally there are terrible employers that cross our path because a union campaign has started because they were treating people like crap.
[00:38:13]
And that is a moment where we actually have a ton of leverage to help create a great workplace because it’s like, look, you deserve exactly what’s happening to you and you have 2 options here. You’re either going to be bargaining with the union. And frankly, if you’re not going to change your ways, that’s the best thing that could happen to this group of employees. Or you’re going to fix this. You’re going to start leading in a way that makes people want to deal directly with you and want to work with you.
[00:38:47]
It’s one of those two options. You are not doing this and we certainly are not going around going like, okay, well, let’s figure out how you can keep being a horrible employer.
Jon Hyman: [00:39:02]
Yeah. No one is advocating how to steal from your employees, how to discriminate against your employees, or how to retaliate against your employees. That’s horrible and it’s indefensible. And if that’s the kind of business you operate, yeah, you will get the union you deserve, period. And you probably and you probably need that. You need to protect your workers because you’re not doing it for them.
Phil Wilson: [00:39:22]
Or better yet, just go out of business. Those companies should get damage awards so ridiculous that they are bankrupt. The people that make it on your list should not be employing people. That’s all that there is to it.
Jon Hyman: [00:39:42]
Yeah. I will say that there are lots of years where the people that have won my list, if I actually had a trophy that I was going to send out, I would have to send it to the federal penitentiary. So oftentimes, they do get what they deserve.
Michael Vandervort: [00:39:57]
Yeah. So, one of the least egregious ones, Jon, was a couple of years ago, an employer in Florida, I think in the Tampa area, invited her employees to come to work and bring their families during a hurricane so that they could continue to put out the product inside their very safe warehouse or whatever it was.
Jon Hyman: [00:40:16]
Keep working through the hurricane. There are degrees of awful. There was the employer that an employee complained about how he was getting paid and then quit his job, and the employer gave him his last paycheck in a sack full of pennies. Don’t do that, but that’s funny, right? You didn’t background check the sex offender and someone ended up getting murdered is just heart heartbreaking. And then there are all kind of shades in between.
Michael Vandervort: [00:40:47]
Yeah. Your list does get attention, and it does call out behaviors and reminds HR people, I think, in a very fun and noticeable way about how you should be doing the right thing. I can certainly see that. Get ready to wrap up. So, we always close with some personal stuff. So, I know this has been a big summer for your daughter. I saw the week of Nora. I was thinking it might be more a couple of months of Nora, but whatever
Jon Hyman: [00:41:18]
The year of. I have I have 2 kids. My daughter just turned 18, and just graduated high school. And then my son is about to turn 16. She’s a musician. He plays soccer. They’re both awesome kids, but in the span of a couple of weeks, she opened for her old friend, Rhett Miller, the lead singer of the Old Ninety Sevens. She’s a [unintelligible 00:41:45]. She turned 18, got her driver’s license, graduated high school. So, it was a big couple of weeks for her. Without getting into details, she had a really rough start to her senior year.
[00:42:01]
And so, it was really cool as a parent to see her work through that, get through that, and then turn it around and finish her year the way she finished it and have all the good things she deserves. As a dad, it made me feel really good. I’m not ashamed to say that the tears started on Wednesday of graduation week with the senior banquet. Part of the senior banquet is the parents that they want can give a little speech. That’s when the tears started and they didn’t stop till sometime after graduation Saturday afternoon. So, it was a good few days.
Michael Vandervort: [00:42:38]
Tell us real quick the short version of the Rhett Miller story because I just think that’s amazing.
Jon Hyman: [00:42:44]
So, my daughter has been a musician since she was 7 and started in the local School of Rock program. And the very first show she did at School of Rock, she did a song, an old 97 song called The New Kid. And she was 7 with her little 3-quarter size Fender Squire guitar, playing these little root notes and singing the song, and it was adorable. So, I threw it up on Facebook after the show was over, and the band liked it. Rhett Miller liked it. He shared it on his page about how cool it was.
[00:43:23]
Now, flash forward a few months, the Old Ninety Sevens are in town. This is 2014. The Old Ninety Sevens are in town on tour promoting their new album. And as it turns out, the general manager of the School of Rock that my daughter went to, in his prior life was a label rep at Elektra Records, which was when the Old Ninety Sevens were on a major label back in the nineties, that was their label. And so, he knew them back from his days at Elektra, but still knew people who knew them and their management.
[00:43:54]
So, he got us backstage before the show and Nora got to meet Rhett and they developed this little friendship over the years. And he had her up on stage to sing with him twice over the years when he came through Cleveland solo. But more to the point, when we went backstage that first time and met him, she had just turned 8. And he told her that when she was a working musician, making money playing her own gigs, he could open for him. And so, when he announced his show here in Cleveland a few months ago, she messaged him and said “Hey, remember when you told me this? I would love the opportunity. And if it doesn’t work out, I’ll be there anyway in the audience, but I would love the opportunity to open for you.”
[00:44:40]
And he got back to her within 5 minutes and was, like, “Yes. Here’s my email. Send me whatever promo material you want to send me so I can give it to my management to look at, and if we can make it happen, we’ll make it happen.” And so, it happened. It was awesome.
Phil Wilson: [00:44:59]
Yeah. Super cool.
Jon Hyman: [00:45:01]
He’s a genuinely nice guy.
Phil Wilson: [00:45:04]
Yeah. We got to get you to Tulsa the next time the Old Ninety Sevens- They’ll play Kane’s Ballroom, which is …
Jon Hyman: [00:45:10]
Caine’s was on my list of places I want to see a show anyway
Phil Wilson: [00:45:14]
I have to do that.
Michael Vandervort: [00:45:15]
We saw Wilco there last year. That was the only time I’ve been there. It was really cool. We’re running over. You’re headed to the, I don’t know how to say this, the Azores?
Jon Hyman: [00:45:26]
The Azores, I think.
Michael Vandervort: [00:45:27]
Yeah, I think so.
Jon Hyman: [00:45:28]
The Azores, I’m not sure. I’ll you know in a few weeks when I get back where the accent actually goes.
Michael Vandervort: [00:45:33]
Yeah. Don’t step on any pit vipers. My brief research said that they have pit vipers there. But it sounds like everything else is wonderful.
Phil Wilson: [00:45:41]
That’s really good advice for anywhere though, Michael.
Jon Hyman: [00:45:43]
Yeah. That’s sound advice for any vacation. Avoid poisonous snakes.
Michael Vandervort: [00:45:48]
Jon asked on threads or Facebook, “What should I see?” And looked, and the first thing it mentioned was some professor who has been walking around in pit viper nests trying not to get bitten. I’m like, yeah, don’t do that.
Jon Hyman: [00:46:00]
Apparently, the time of year we’re going is big for the Portuguese man of war jellyfish. And I’ve seen photos from the summer where there are thousands of them that wash up on the beach.
Phil Wilson: [00:46:13]
I have stung by one, and I do not recommend it.
Jon Hyman: [00:46:21]
I guess they’ve put flags up on the beaches when they’re around. So, we’re going to keep an eye out and try to avoid them as best as possible.
Michael Vandervort: [00:46:28]
Yeah. So, we’ll issue bon voyage or whatever the Portuguese equivalent is.
Jon Hyman: [00:46:33]
I’m not sure. My Portuguese is limited to, hello, goodbye, thank you, and maybe ordering a glass of wine and maybe asking where the bathroom is, which I think are the 5 most important things you need to know how to say when you go to a foreign country.
Michael Vandervort: [00:46:48]
Exactly. Just take your phone and chat GPT. They’ll translate for you no problem.
Jon Hyman: [00:46:53]
That’s exactly right.
Michael Vandervort: [00:46:54]
Have a safe trip, man, and thanks for doing the show today. Appreciate it.
Jon Hyman: [00:46:57]
Thank you so much for having me on. I really appreciate it. It’s always good to see you guys.
Phil Wilson: [00:47:00]
Yeah. It was great.
Jon Hyman: [00:47:03]
We’ll do it again next time at Kane’s Ballroom.
Phil Wilson: [00:47:05]
Alright. There you go. We will do that.
In this episode of the Left of Boom Show, we welcome Jon Hyman, a seasoned employment and labor attorney with over 25 years of experience, to the Left of Boom Show. As the leader of the Employment & Labor Practice Group at Wickens Herzer Panza, Jon brings a wealth of knowledge on a range of employment and labor law issues.
We dive into the hot topics of the day, starting with the Supreme Court’s decision involving Starbucks and the Memphis 7. We also chat about the recent legal battles involving Amazon, including the US Court of Appeals’ decision to throw out a cease-and-desist order against the company. This leads us into a conversation about the challenges the NLRB faces with 10-j injunctions and what it all means in the broader context of labor relations.
With the Chevron doctrine possibly going away soon, Jon explains why this matters and how it could impact agencies like the NLRB, EEOC, and DOL. We also touch on Anchor Brewing and the complexities of asset purchases and union recognition.
Jon then shares the story behind the “Worst Employers List,” why he created it as part of his blog, and why it remains relevant today.
We wrap up with some fun, talking about Jon’s summer adventures with his daughter Norah, a memorable encounter with Rhett Miller of the Old 97’s, and Jon’s love for Portugal.
Join us for an insightful yet relaxed conversation that blends professional expertise with personal stories, offering valuable takeaways for anyone navigating the modern workplace.