Ohio Employer Law Blog

6 tips to stop a thief within your business

2026-09-17T08:36:53.239-04:00

Most employers worry about the thief outside the building. Yet, if someone's stealing from you it's probably an employee inside it.

Jennifer O'Neal worked as a program specialist for a Georgia nonprofit, CASA of Polk & Haralson Inc., which advocates for abused and neglected children. From 2018 to 2022, prosecutors say she used her access to the organization's bank accounts to cut payments to herself, disguised as legitimate reimbursements.

The total: $96,700.

The money went to her power bill. Her water and sewage bill. Her cellphone bill. A Netflix subscription. Softball gear. Lingerie. Home theater equipment. A trip to Six Flags.

O'Neal pled guilty this week to theft of federal program funds.

U.S. Attorney Theodore S. Hertzberg said O'Neal violated CASA's "core values" by stealing money meant for the "most vulnerable members of our community." That's the moral lesson of the story. Here's the operational one: nobody was watching, and for four years, that was enough.

You don't need a U.S. Attorney or a forensic accountant to stop this. You need controls that don't rely on trust alone.

1. Split the job in two. The person who requests or initiates a payment should never be the same person who approves or issues it. O'Neal could do both. That's not a personality flaw. That's a design flaw, and it's on you to fix it.

2. Demand real backup for every reimbursement. No receipt, no verifiable business purpose, no payment. Period. Trusted employees get the same scrutiny as everyone else, because trust is exactly what gets exploited.

3. Audit on a schedule, not a hunch. Someone with no stake in the transactions should be reviewing the books regularly, whether or not anything looks wrong. Fraud isn't caught by intuition. It's caught by someone actually checking.

4. Force people to take time off. The employee who never takes a vacation and guards their process isn't dedicated. They're unsupervised. Make someone else cover the role while they're out, and let a fresh set of eyes look at what's been happening.

5. Reconcile every payee against a real vendor list. A personal name or a residential address where a vendor should be isn't a clerical error. It's a red flag with a bow on it.

6. Require dual signatures above a set dollar threshold. And have a person outside accounts payable actually read the bank statements every month. Not skim them, actually read them.

None of this is complicated. None of it's expensive. It just requires believing, before the fact, that someone you trust might not deserve it.

Trust is not a control. Verification is.

The two-day mistake that sent retaliation claim to trial

2026-09-16T07:21:20.768-04:00

Two days.

That's the entire gap between John Shoemaker asking McKesson Corp. for FMLA leave and McKesson telling him he was fired.

A federal judge just said that two-day gap alone survives summary judgment.

Shoemaker was a Senior Director overseeing McKesson's contact center. In the spring of 2024, McKesson started planning a reorg. The company says that it locked in the decision to eliminate Shoemaker's position by December 2024, at least a month prior to anyone at the company knowing that he was even thinking about taking paternity leave. Typically, that's enough. Business decisions made for business reasons aren't retaliation just because a protected request comes along later.

But then it got messy. In January 2025, Shoemaker started quietly talking to HR about paternity leave. On March 3, he formally told his boss he'd be taking it that spring. McKesson says that in early March it picked April 11 as Shoemaker's termination date, but couldn't pin down exactly when, or produce anything showing that it did so before March 3.

Then, on April 9, Shoemaker formally requested FMLA leave. Two days later McKesson fired him.

Shoemaker was the only employee terminated on April 11. Everyone else caught in the reorg wasn't let go until July.

That's not just bad timing. That's a company that can tell you what it decided, but not when. And in a case like this one, the "when" is the whole ballgame.

Retaliation claims still require more than pure timing to survive summary judgment, and temporal proximity alone doesn't prove pretext. But in this case, Shoemaker had something more. He said his work didn't stop when he left. A coworker backed him up, testifying his job functions "did not cease." And unlike everyone else swept up in the RIF, he alone got cut two days after invoking the FMLA and months before the rest.

The court didn't need much more than that. Between the near-immediate proximity and the factual fight over why only Shoemaker's termination was accelerated, summary judgment was denied.

So what should you take away from this case?

1. Contemporaneous documentation matters. If your defense is "we already decided to fire this person before the protected activity," you need a document with a date on it, not a witness remembering "sometime in early March." If it's not on paper, it didn't happen.

2. If you jump someone ahead in line, know why. When one employee gets cut days after protected activity and everyone else in the same RIF survives another three months, you have to be able to explain that gap.

3. The line for what qualifies as a adverse action is a thin one. You don't get credit for "we were going to fire him anyway" if the record shows you fired him sooner because he took leave. Acceleration counts.

Employers, plan your RIF all you want. Just make sure you can back up not just why a decision was made, but also when.

Big firm ability. Small firm agility.

2026-09-15T06:58:16.755-04:00

Big firm ability. Small firm agility.

That's Wickens Herzer Panza in six words. Chambers just backed it up three times over.

Wickens Herzer Panza picked up three rankings in the 2027 Chambers Ohio Spotlight Guide: Labor & Employment (the group I lead), Corporate/Commercial, and Litigation: General Commercial.

Only two other firms in all of Ohio matched that. Nobody beat it.

I don't say that to brag. Okay, actually I do say that to brag. But I also say it because of what a Chambers ranking actually means.

Chambers doesn't work like most legal directories. You don't buy your way onto the list, and you don't get there by submitting a nice write-up about yourself. Researchers call your clients. They call opposing counsel. They ask what it was actually like to work with you, not what your marketing department says about you. If a firm shows up in Chambers, somebody who isn't on that firm's payroll vouched for it.

That's also the reason the Spotlight Guide exists at all. The main Chambers USA Guide skews toward big firms with national footprints — the ones already showing up on every "top law firm" list. Spotlight was built for firms under 75 attorneys doing serious work without that scale, so a business looking for good counsel has somewhere to look besides the Am Law 100.

That's who we are in a nutshell. Not the biggest firm in the room, but one that goes toe-to-toe with the biggest firms in the courtroom and the boardroom, just not on the bill.

The Labor & Employment ranking means the most to me personally. But all three matter, because they're really saying the same thing about three different parts of my firm: our work holds up.

I am incredibly proud of where I work, with whom I work, and the work we do for our clients.

Reprehensible conduct, forgettable price tag

2026-09-10T06:53:00.000-04:00

"What may be awesome punishment for an impecunious individual defendant may be wholly insufficient to influence the behavior of a prosperous corporation."

That's the 3rd Circuit, not me. And it's the whole ballgame in Holmes v. American HomePatient.

Here's what earned that line. Patricia Holmes was the only Black employee at AHOM's Penn State office. Her supervisor asked her, "what do you think about the N-word?" then Googled it—misspelling it "Niger"—while a coworker sounded it out for him like a grade-schooler. Both laughed. Weeks later, during a mask fit test that required a hood over Holmes's head, the same supervisor had a coworker film it, then joked it was "ironic to see a white woman putting a white hood on a black woman's head." He laughed in her face.

When Holmes reported it, HR investigated without ever interviewing the one coworker who'd witnessed the slur, then concluded McCoy hadn't said it himself and assigned him to counsel Holmes—the woman he'd allegedly called it—on workplace conduct. His only discipline, a written warning, wasn't for his own conduct. It was for failing to supervise the coworker who'd sounded it out.

A jury awarded $500,000 in compensatory damages and $20 million in punitives. The district court found the punitive award unconstitutional and cut it to $1 million—a 2:1 ratio. On appeal, the 3rd Circuit found AHOM's conduct "exceedingly reprehensible," set the ratio at 4:1, and doubled the punitive award to $2 million.

The reprehensibility call is spot on. A supervisor using slurs, a sham investigation, a company that let the harasser counsel the victim—that's about as bad as facts get.

But do the math. AHOM does more than half a billion dollars a year in revenue. Two million dollars is four-tenths of one percent of that. It's not "awesome punishment." It's a line item.

I've spent my career on management's side of cases like this one, and I'm not saying this to hand the plaintiffs' bar a talking point. A lawyer who tells clients a ratio-capped award is real deterrence isn't doing them any favors. Under-deterrence doesn't just shortchange the plaintiff; it teaches the next AHOM the fine is affordable, and the misconduct excusable.

That's not a flaw in this opinion. It's structural. Due process caps the ratio in the single digits regardless of size, and the bigger the company, the less any dollar figure tethered to compensatory damages can sting. Courts know it, they just can't fix it. The 3rd Circuit said as much, and still landed on 4:1.

You might not be wrong to think a $2 million verdict isn't material.

What should scare you is a supervisor who treats slurs as banter, an HR department that "resolves" a complaint by putting the accuser back under the accused's supervision, and a jury that reached for $20 million before any judge touched the number.

Ratios protect balance sheets. They don't protect you from twelve people who've had enough—or the reputational damage a verdict like this leaves behind.

The fist inside the velvet glove

2026-09-09T06:40:44.766-04:00

"The inherent danger in well-timed increases in benefits is the suggestion of a fist inside the velvet glove."

That's the 5th Circuit, describing what Starbucks did to its Buffalo stores once a union showed up. The court's recent opinion in Starbucks Corp. v. NLRB reads like a playbook of exactly what not to do during an organizing campaign.

Here's what happened. In August 2021, employees at Starbucks's Buffalo stores posted an open letter to the CEO announcing a union drive. Within a week, Starbucks flew in a team of senior executives who had never set foot in a Buffalo store before, and parachuted in district managers from other regions to serve as "support managers" — something it had never done there. The day after that letter went public, Starbucks fired the district manager overseeing two of the affected stores.

Repairs that normally took 12 to 18 months of advance notice suddenly got done in weeks. Seniority pay expanded. A national wage increase got moved up. Managers started wearing headsets to monitor conversations they'd never bothered monitoring before. And after the union won at eight stores but narrowly lost at a ninth, Starbucks kept enforcing rules unevenly, then fired six employees for conduct it had tolerated from everyone else for years.

All told, the Board found 125 violations across 60 different ways of breaking the law, and the 5th Circuit affirmed most of them.

The legal rule is simple. A benefit granted, or a rule enforced, isn't illegal on its own. Timed to a union campaign, however, with no explanation for why it never happened before, it's evidence of exactly what an employer isn't allowed to say out loud — "Vote no, or else!"

Here's what Starbucks should have done differently, and you should, too, if a union comes knocking on your door.

1. Fix problems on your normal schedule. If your stores had "widespread facilities issues" for years, suddenly finding the money and the urgency the week cards start circulating doesn't read as generosity. It reads as a bribe.

2. Avoid conferring unexpected benefits. Speeding up a wage increase, expanding seniority pay, and adding hours look generous. Benefits timed to a union campaign, with no explanation for why they couldn't have waited, looks like a quid pro quo for a "no" vote.

3. Don't flood the zone with strangers. Sending in executives and out-of-town managers who've never been there before, the moment organizing starts, creates the impression of surveillance even if you call it operational support.

4. Discipline consistently, or don't discipline at all. If tardiness, dress code, and other violations were tolerated for years and suddenly become fireable offenses the same month a petition gets filed, that inconsistency is the union's best exhibit.

The velvet may fool some of the organizing employees. It never, however, fools the Board.

Mathing the overtime calculation for bonuses and incentive comp

2026-09-08T07:00:00.000-04:00

Boeing built its overtime checks on base hourly rate alone. Nothing else. Not the bonus. Not the incentive pay. Just the base rate, run through a straight 1.5x multiplier.

That's the allegation, at least, in a proposed class action Boeing just removed to federal court. Plaintiff Jerry Belmonte Llarenas, a former quality assurance inspector, says the company's Aerospace Incentive Plan bonuses should have been folded into his "regular rate of pay" before Boeing calculated overtime. They weren't.

The numbers are specific. In a February 2024 pay period, for example, Belmonte Llarenas alleges that he received an incentive bonus of just under $5,000. That same period, he worked 18 hours of overtime paid at a premium multiplier of his base rate. No bonus in the math anywhere.

But if the bonus was non-discretionary, it absolutely should have been included in the regular rate of pay for overtime-calculation purposes.

If you pay incentive or bonus comp to your employees, here is a handy FAQ that explains all of the ins and out of legally paying bonus and incentive comp to your non-exempt employees without running afoul of the FLSA.

1. What is the "regular rate of pay," and why isn't it just the hourly rate?
Under the FLSA, overtime has to be paid at 1.5x the employee's "regular rate," and that rate is broader than the number on the offer letter. It includes nearly all compensation for the workweek — base pay, shift differentials, commissions, and most bonuses — divided by hours worked. Employers who overtime-check only the base hourly rate are almost always underpaying.

2. Are all bonuses included in the regular rate?
No, and this is where the whole case turns. The FLSA splits bonuses into two buckets: discretionary and nondiscretionary. Discretionary bonuses get excluded from the regular rate. Nondiscretionary ones don't.

3. What actually makes a bonus "discretionary"?
Two things have to both be true. The employer has to retain discretion over both whether to pay it and how much, and that discretion has to last until at or near the end of the period it covers. A holiday bonus you decide to hand out on a whim in December, amount unannounced in advance, is discretionary. A bonus promised up front, tied to preset performance metrics or attendance targets, is not — even if the employer calls it "discretionary" in the plan document. Courts look at how the bonus actually works, not what the plan calls itself.

4. So what kind of bonus lands in the nondiscretionary column?
Production bonuses. Attendance bonuses. Quality or safety incentive bonuses. Anything promised to employees in advance to encourage them to work more efficiently, stay longer, or hit a target. That's exactly what Belmonte Llarenas alleges about Boeing's incentive plan — eligibility and performance measures "established in advance," not doled out at Boeing's sole discretion at the end of the period. If that's accurate, the bonus was nondiscretionary from day one, and it belonged in the regular rate.

5. If a bonus is nondiscretionary, how do you spread it across the pay periods it covers?
This is the part employers usually get wrong the most, more than the classification question. A nondiscretionary bonus covering multiple workweeks has to be allocated back across those workweeks — you can't just dump the whole thing into the pay period where the check lands. If the bonus can reasonably be attributed to specific weeks, do that. If it can't be broken out that precisely, DOL regulations let you allocate it equally across the workweeks in the bonus period as a reasonable proxy. Either way, you then recompute the regular rate for each of those workweeks, refigure the overtime owed, and pay the difference. One lump-sum bonus check can trigger a whole quarter, or a whole year, of overtime corrections.

6. What should employers actually do about this?
Pull every bonus, incentive, and award program you run and ask one question: is it promised in advance based on a preset formula, or is it a genuine surprise decided at the end? If it's the former, it's nondiscretionary, and your payroll system needs to be recalculating overtime every time one of those bonuses pays out. If your system currently runs overtime off base rate alone and treats every bonus as an afterthought, you don't have a compliance risk. You have two lawsuits already proving it's a real one.

WIRTW #809 (the 'senioritis' edition)

2026-09-04T07:28:28.273-04:00

My son is a high school senior. His school has a tradition called the Senior Corner — a spot in the Upper School commons, television included, that seniors earn as a rite of passage.

Not anymore.

The TV is gone this year, and the explanation is that last year's seniors were too loud and disturbed nearby classrooms.

Last year's seniors. Not this year's. The kids who caused the problem graduated. The kids paying for it did nothing wrong.

That's not discipline. That's an institution that didn't want to do the harder work of identifying who was actually being disruptive, so it punished everyone instead.

Sound familiar?

It's the same move John Morgan, of the law firm Morgan & Morgan, bragged about on video — describing how he monitors remote employees by, in his words, "putting cameras up employees' backsides."

Watch everyone. Make sure nobody's slacking.

That's not oversight. It's an admission that he doesn't know which employees are the problem, so he's decided to treat all of them as suspects.

Blanket discipline or surveillance is the corporate version of taking away the TV. It's what a manager reaches for when identifying and addressing the two or three underperforming employees feels like more work than monitoring everyone.

It's not a performance-management strategy. It's an avoidance strategy masquerading as one.

And it backfires in the workplace for the same reason it backfires in a school commons.

Your best employees notice.

They notice that their discipline, output, and integrity bought them nothing. That they're being treated exactly like the person who actually earned the scrutiny.

Once people figure that out, you've traded a performance problem for a morale problem. And morale problems are much harder to solve. Once you've killed morale, it's incredibly difficult to win it back.

If you've got employees who aren't working while remote, that's a real issue. Address it with them. Directly. Personally. Document it, manage it, and if it doesn't improve, part ways with them.

What you don't do is turn your entire workforce into a surveillance target because two people gave you a headache.

That's not management. That's giving every employee a reason to wonder why they bothered being good at their job in the first place.

Punish the offender. Not the workplace.

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

HR Needs an AI Workforce Strategy Before the Layoffs — via EntertainHR

The AI and Communications Blueprint: 4 Things Every Comms Leader Needs to Get Right — via Ragan.com

Why Every Employer Now Needs an AI Policy (Even If You Think You Don't Use AI) — via Employment & Human Rights Law In Canada

How Do I Handle an Anonymous Complaint? — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

My coworker exposed our boss's affair with secret videos — via Ask a Manager

Wheel Of Fortune Announcer Suspended After Alleged Incident; Role Will Be Recast During Investigation — via TVLine

Alanis Morissette Accuses Ex-Tour Manager of Extortion Scheme in Lawsuit — via Consequence

Biglaw Firm's Emails Casually Insult 'Dumb Judge' And 'Poop Man' — via Above the Law

A False Cancer Diagnosis Could Not Cure the Employer’s Very Real ADA Problem — via Eric Meyer's Employer Handbook Blog

You Need to Understand Your Employees' Caregiving Responsibilities — via Harvard Business Review

Pay attention to personal liability for FLSA violations

2026-09-03T06:43:00.000-04:00

Business owners, officers, and managers, this is why you need to pay attention to wage and hour issues.

Tow truck driver Marquis Mariscal sued JLS Towing, alleging the company misclassified him and other drivers as independent contractors and paid them a flat rate per vehicle towed, no matter how many hours they worked. No overtime, ever, even past 40 hours a week.

He not only sued the company, but also its president, Summer Settle, personally, claiming she directed the company's operations, set schedules, made hiring and firing calls, and controlled how drivers got paid.

Settle moved to dismiss the claims against her individually, arguing Texas law shields corporate officers from LLC liability. The court disagreed.

In wage and hour cases, the corporate shell is not a liability force field. The Fair Labor Standards Act doesn't care what your state's business code says. The FLSA defines "employer" to include any person acting in the interest of an employer, and courts have long held that a corporate officer with operational control over the workforce can be personally liable, jointly and severally, right alongside the company.

Liability is not absolute, and depends on the balancing of these four factors:

1. Power to hire and fire. Not just a vote at the board table, but the actual authority to bring someone on or let them go.

2. Control over schedules and working conditions. Did this person set hours, assign shifts, or supervise day-to-day work?

3. Control over pay. Did they decide the rate, the method, or whether overtime got paid at all?

4. Maintenance of employment records. Someone has to keep the books on hours and pay. If it's you, that's evidence of control.

Mariscal alleged Settle checked every one of those boxes. That was enough to survive dismissal.

Being a co-owner who occasionally weighs in isn't enough on its own. Someone actually has to run the operation for liability to trigger. If you set the pay structure, sign off on schedules, and decide who gets hired or fired, an LLC or other corporate form won't save you when the overtime math goes wrong.

Titles don't create liability. Control does, and control doesn't come with a shield. If compliance isn't reason enough to get your wage and hour house in order, personal liability should be.

The EEOC has lost the plot

2026-09-02T06:54:45.899-04:00

The EEOC has lost right to claim that it's for "equal employment opportunity."

The Equal Employment Opportunity Commission exists to investigate workplace discrimination. Yet, on August 18, it signed a settlement promising never to do that again, for one group of employers, forever.

The employer is the Christian Employers Alliance. CEA sued the EEOC challenging its guidance treating gender identity discrimination as sex discrimination under Title VII. Instead of litigating it, the agency gave CEA everything it asked for.

The settlement bars the EEOC from ever pursuing a gender identity discrimination claim against a CEA member — not just the 20,000-plus employers already in the group, but any future member too, as long as they belonged when the discrimination allegedly happened. No expiration date. No court monitoring for compliance. Just permanent immunity from investigation.

CEA is already selling it that way. Its membership page reads "Join CEA and stop being exposed," under a banner promising members are "Protected the Moment You're In." Karla Gilbride, EEOC general counsel under the Biden administration and now at the ACLU, named it for what it is: "It's like they're selling an insurance policy against EEOC investigations."

The EEOC, however, already has a real process for religious objections: a case-by-case defense the agency weighs against the facts. This settlement skips that. Investigators can't open a file at all if the employer is a member. Gilbride called that carve-out "unprecedented." It creates a license for these employers to discriminate against a class of their employees. That should trouble everyone, no matter your religion or beliefs.

So what do you actually take from this settlement?

1. Membership isn't immunity from the courthouse. This blocks EEOC charges and investigations. It does nothing to a state discrimination claim or an employee's own lawsuit under Bostock, the Supreme Court precedent that defines transgender discrimination as sex discrimination. The case doesn't vanish — it shows up somewhere else, just without the EEOC doing the legwork for the plaintiff.

2. An association card is not a compliance policy. If "we joined this group" is your entire defense, you're betting on a settlement surviving a legal challenge to whether an agency can even do this.

3. Agency policy isn't law, and it turns over. This policy and the settlement it furthers exists because of who runs the EEOC right now. It remains to be seen if this settlement will survive future administrations or legal scrutiny.

The EEOC is supposed to police discrimination, not pre-clear it for a membership fee. When the enforcer starts selling exemptions from itself, it isn't just picking a side. It's forgetting the job it was hired to do. Call that religious liberty if you want. Just don't call it equal.

The 8th nominee for the Worst Employer of 2026 is … The Passport Pilferer

2026-09-01T06:53:41.780-04:00

An agricultural labor contractor recruited five Guatemalan farmworkers under the H-2A visa program, charged them an illegal $2,500 annual fee to work, confiscated their passports, and threatened to have them deported if they complained.

A federal jury didn't buy the defense. Neither did the 6th Circuit.

Purpose Point Harvesting and its owners, Milton and Lucille Gomez, employed Luis Gomez-Echeverria, Hervil Gomez-Echeverria, Darwin Joel Fuentes Perez, Artemio Coronado Esteban, and Leonel Lopez y Lopez, Guatemalan citizens with work visas for temporary or seasonal agricultural jobs, for the 2017 through 2019 growing seasons. The $2,500 annual recruitment fee — illegal under the H-2A program — amounted to more than a year's wages in Guatemala, forcing the workers to take out high-interest loans just to show up for the job.

It got worse from there.

Workers logged 19-hour days that never showed up on their paychecks, because records documenting their hours were destroyed.

They lived in small trailers, sleeping on couches instead of in beds.

Milton confiscated their passports and Social Security cards (a federal crime) and Lucille made herself an authorized user on workers' bank accounts without their knowledge, at one point withdrawing $2,500 from a worker's account herself.

When one worker needed medical care for an infected hand injury, he waited two weeks and ultimately needed surgery.

When workers tried to leave, Milton posted on Facebook that they were missing, and reported one to police as a missing person rather than to the Department of Labor, as the law required.

The jury found the defendants liable under the Trafficking Victims Protection Reauthorization Act, the FLSA, and Michigan wage and trafficking law, awarding $105,000 in compensatory damages and $450,000 in punitive damages — a figure the 6th Circuit called "rather modest" given the conduct and the TVPRA's own 20-year, $500,000 criminal exposure. It's hard to argue with that assessment.

If your business model depends on illegal fees, confiscated documents, and the threat of deportation to keep people quiet, the punitive damages ratio was never going to be your problem. Your misconduct was. That's why Purpose Point Harvesting earned its nomination for the Worst Employer of 2026.