Ohio Employer Law Blog

WIRTW #804: the 'crash on the barrelhead' edition

2026-07-24T08:47:42.644-04:00

Ryan Adams canceled his latest tour this week. His explanation? He's broke. Sick. Tired. Defeated.

Maybe all of that is true. Touring is brutal. The music business is unforgiving. And I don't take pleasure in watching someone suffer.

But I also don't have much sympathy for Ryan Adams.

For years, multiple women—including Phoebe Bridgers and Mandy Moore (his ex-wife)—have described the same basic pattern. Adams allegedly offered to mentor young female artists, pursued them romantically, and then, when those relationships soured or his advances were rejected, retaliated by undermining their careers or harassing them. Those allegations permanently altered how many view him.

What struck me wasn't just the allegations. It was how many musicians felt compelled to turn them into songs.

Phoebe Bridgers gave us "Motion Sickness".

Jason Isbell wrote "Chaos and Clothes".

Lucinda Williams unloaded with "Shadows & Doubts" and "Little Rock Star".

Old 97's? Depending on how you count, they may have written three songs inspired by Adams: "The New Kid", "Book of Poems", and "Crash on the Barrelhead".

I can't think of many musicians who've inspired an entire playlist of songs about what an awful human being they allegedly are.

That last one, "Crash on the Barrelhead", hits especially hard. Its message is unmistakable: if you keep living this way, eventually your choices catch up with you. Twenty-seven years later, these lyrics feel almost prophetic:

You're gonna crash on the barrelhead, son
You'll regret the things that you done
One of these days you're gonna rue
All the messed up things you do

The universe has a funny way of keeping score. Not always. Not quickly. But often enough.

Your reputation is the ledger.

It's one of the few things you build every single day without even realizing it. Every decision, every interaction, every kindness, every betrayal—they all become part of the story other people tell about you.

Once that story hardens, it's incredibly difficult to rewrite. Trust takes years to earn, seconds to lose, and for many people is never fully regained. Rebuilding a reputation is far harder than rebuilding a career or a tour schedule.

Eventually, enough people tell the same story about you that it stops sounding like gossip and starts sounding like your legacy.

Live your life so that you're never the subject of someone else's song about what an awful person you are.

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

At Trump's Direction, Federal Agencies Are Abandoning Discrimination Cases — via The New York Times

The EEOC Just Broke Ground on EEO-1's Funeral 🪦 — via Eric Meyer's Employer Handbook Blog

When Employees Are Held Accountable for AI-Generated Decisions — via Harvard Business Review

Taming Our AI Overlords: Three Rules to Govern AI's Use in Talent Decisions — via TalentCulture

The One Thing You Didn't Think to Look for in Legal AI — via Above the Law

AI agent went rogue and hacked startup by itself, OpenAI reveals — via The Guardian

Does the Second Circuit's Motive-Based Test Apply to Connecticut Religious Accommodation Law? — via Dan Schwartz's Connecticut Employment Law Blog

This Seemingly Innocent HR Practice Is a Massive Liability Waiting to Be Exploited — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Employer beats age claim. But not retaliation. — via Employment & Labor Insider

Remote work isn't always a 'reasonable' accommodation: 4 tips for employers — via HR Dive

When Investigating Isn't Enough: 5th Circuit Highlights Importance of Being Thorough — via EntertainHR

My boss overshared about a coworker's drinking problem — via Ask a Manager

A Digital Health Check for Your Brewery — via Brewers Association

'No company is going to go to jail for you': Proton’s CTO on balancing privacy, policy, and trust — via The Verge

Ohio breweries enjoy strong showings at 2026 U.S. Open Beer Championship — via WKYC

The ADA is a two-way street

2026-07-23T06:49:00.000-04:00

Once an employee requests an ADA accommodation, the employer has to give them exactly what they ask for… is NOT the law. In fact, it's the opposite of the law.

The ADA requires a reasonable accommodation—not the employee's preferred accommodation. Further, the ADA is a two-way street; employees have obligations, too.

One recent decision, Belval v. Electric Boat Corp., drives those points home.

The employee, who had multiple serious medical conditions, wanted to continue working from home full-time after COVID-era return-to-office policies resumed. Electric Boat didn't simply say "no." It allowed remote work throughout much of the pandemic, granted FMLA leave, consulted with his healthcare providers, engaged in the interactive process, and ultimately offered him three remote days each week—more than other employees received.

He insisted on full-time remote work.

The court sided with the employer because the ADA doesn't require an employer to provide the accommodation an employee wants. It requires an accommodation that is reasonable and enables the employee to perform the essential functions of the job. Employers may choose among effective accommodations.

Just as important, this opinion is a reminder that the interactive process should be documented like any other critical employment decision. Electric Boat had the receipts. It documented communications with the employee, consultations with his medical providers, proposed accommodations, repeated phone calls, follow-up correspondence, and even a final letter establishing a deadline to report to Occupational Health. That record showed more than participation. It showed cooperation.

Finally—and this may be the most overlooked lesson—the interactive process is a two-way street. Employees have obligations too. According to the court, the employee repeatedly failed to communicate with Occupational Health, directed company representatives to speak only with his attorney, ignored multiple attempts to discuss accommodations, and failed to appear for a required appointment. That mattered. The court held that the employee—not the employer—was responsible for the breakdown in the interactive process, which independently doomed his failure-to-accommodate claim.

Here are my three practical takeaways for employers from this case:

• The ADA requires a reasonable accommodation—not the employee's preferred one.

• Document every step of the interactive process: conversations, medical information, proposed accommodations, follow-ups, and attempts to communicate.

• Remember that good-faith participation is required from both sides. When an employee refuses to engage, ignores communications, or derails the interactive process, that failure can be fatal to an ADA claim.

Accommodation is a dialogue, not a demand. The employers that treat it that way—and carefully document every step—put themselves in the strongest position if that dialogue ever ends up in court.

A post-mortem on personal responsibility

2026-07-22T06:57:39.202-04:00

"Sure, I posted racist memes and comments on my public Facebook page while identifying myself as a Chicago firefighter. But firing me violated my 1st Amendment rights."

That's the essence of last week's 7th Circuit opinion in Inendino v. Nance-Holt. And while the court spent most of its time parsing constitutional doctrine, I came away thinking about something much simpler.

Whatever happened to personal responsibility?

Sam Inendino spent 16 years as a Chicago firefighter and EMT. On his public Facebook page, where he prominently identified himself as a firefighter, he posted a series of racist and offensive comments directed at Black people, Asian Americans, immigrants, and others. Members of the public complained. The City investigated. He was fired. An arbitrator found just cause for his discharge. The 7th Circuit ultimately upheld it.

The legal issue wasn't whether his posts were offensive. Everyone agreed they were.

The harder question was whether the 1st Amendment protected them.

Interestingly, the 7th Circuit actually gave Inendino more credit than the trial court had. It assumed that many of his posts—even crude, racist ones—touched on matters of public concern because they commented on current political controversies surrounding Black Lives Matter, policing, immigration, and public officials.

But that's where many people stop reading.

The court didn't say, "Speech about public issues means you can't be fired."

Instead, it asked the next question: Does the government's interest as an employer outweigh the employee's interest in speaking?

For a firefighter whose job requires the trust of every member of the public, the answer was yes.

The court emphasized 7th facts that employers should remember. Inendino wasn't speaking anonymously. He publicly identified himself as a firefighter. His page featured photos of him in uniform on a fire truck. His comments were visible to everyone. And he served a predominantly Black neighborhood while posting content that openly demeaned Black residents—the very people he might someday be called upon to rescue. Under those circumstances, the City had a compelling interest in protecting public trust in its emergency services.

All of that is important.

But here's what struck me.

Too often, cases like this are framed as though the employee is merely the victim of an employer's overreaction. The conversation becomes about cancel culture, free speech, corporate overreach, or constitutional rights.

Missing from that conversation is the most obvious point.

You are still responsible for your own choices.

No one forced Inendino to make his Facebook page public.
No one forced him to identify himself as a firefighter.
No one forced him to post racist memes.
No one forced him to keep them online.

Employees have rights. Employers have obligations. But neither erases personal accountability.

This wasn't a case about someone being punished for an immutable characteristic or an unpopular belief quietly held. It was about a series of deliberate, public decisions that predictably destroyed the trust essential to performing a public-facing job.

The law often protects people from the consequences of who they are. It rarely protects them from the foreseeable consequences of what they choose to do. That's especially true in employment law.

If you publicly associate yourself with your employer while broadcasting views that undermine your ability to perform your job or destroy the public's trust in the institution you serve, don't be surprised when those decisions have employment consequences.

That's not a post-mortem on free speech. It's a post-mortem on personal responsibility.

The EEOC's Nike DEI investigation shows the difference between politics and Title VII

2026-07-21T07:10:42.947-04:00

How employers pursue diversity, equity, and inclusion matters far more than whether they pursue it.

The EEOC's recent pursuit of Nike illustrates the point. The agency says that Nike's DEI program is illegal. That's not, however, what Title VII says.

According to a New York Times investigation, EEOC Chair Andrea Lucas has spent more than two years building a case that Nike's diversity initiatives amount to unlawful discrimination against white employees. The investigation didn't begin with an employee complaint. It began with a commissioner charge, followed by an expansive probe into Nike's hiring goals, internships, mentorship programs, leadership development, executive compensation, and layoffs.

The current administration's message is clear: DEI equals discrimination. Except that's not what Title VII says.

Under longstanding Title VII principles—not the EEOC's current enforcement position—a lawful DEI program isn't one that ignores race or sex. It's one that never uses race or sex to make employment decisions.

There is nothing illegal about wanting a more diverse workforce. There is nothing illegal about expanding recruiting efforts, offering mentorships, sponsoring affinity groups, measuring workforce demographics, or setting aspirational diversity goals.
Where employers get into trouble is when race or sex becomes the reason someone is hired, promoted, selected for a program, or laid off.

Ironically, the Nike investigation also provides employers with a useful compliance roadmap. In early 2025, Nike and the EEOC reached a settlement agreement under which Nike affirmed that its training and development opportunities would remain open to all employees and that it would encourage everyone to participate.

Then Trump took office. Because the EEOC had never countersigned the agreement, it withdrew the settlement and instead launched a sweeping investigation into nearly a decade of Nike's hiring, compensation, training, and layoff decisions.

Yet the proposed settlement reflects exactly what employment lawyers (including me) have been advising clients for years. If you're offering leadership development, mentorships, internships, or networking opportunities, make them available to everyone. Use objective selection criteria. Focus on expanding opportunity, not limiting it. Build inclusive programs, not exclusive ones.

The Supreme Court may eventually narrow what employers can do in the DEI space. The current administration clearly hopes so. The EEOC's enforcement priorities expressly seek cases that could reshape the law. But we're not there yet, and we may never get there.

Employers shouldn't treat every DEI initiative as radioactive. They should treat DEI like every other employment practice: design it carefully, administer it fairly, and make sure it complies with Title VII.

Because under Title VII, pursuing diversity isn't unlawful. Making employment decisions based on protected characteristics is.

A disability is not a license to harass

2026-07-20T08:46:18.829-04:00

Federal disability discrimination laws exist to ensure that people with disabilities are judged on their abilities—not their diagnoses. They require reasonable accommodations. They prohibit discrimination. They level the playing field.

What they do not do is excuse misconduct.

That's the important takeaway from Brantley v. University of Texas at Austin, a recent 5th Circuit decision that rejected a student's attempt to use the Rehabilitation Act as a shield against discipline for repeatedly harassing a professor.

The facts are difficult.

After taking one of the professor's classes, the student continued emailing him. Not once or twice. According to the court, hundreds of times.

The emails ranged from academic topics to deeply personal discussions of trauma, mental health, and self-diagnosis. The professor repeatedly tried to establish boundaries. He provided information about campus mental health resources. He asked that future communications be limited to academic matters. Eventually, he pleaded with her to stop contacting him altogether, explaining that the constant emails were causing him "a tremendous amount of distress."

She kept emailing.

The university ultimately placed her on disciplinary probation.

Her lawsuit didn't deny the conduct. Instead, she argued that her disabilities—including ADHD, complex PTSD, and PMDD—caused her communication patterns, and that disciplining her without accommodating those disability-related behaviors violated the Rehabilitation Act.

The 5th Circuit wasn't persuaded.

Relying on long-standing ADA precedent from the employment context, the court reiterated an important principle: disability discrimination laws do not require employers—or universities—to tolerate harassment simply because the person engaging in it has a disability.

As the court put it, federal anti-discrimination law cannot be used to "immunize" someone from the consequences of harassing another person.

That's exactly right.

This principle matters well beyond higher education. Employers routinely face similar arguments when employees engage in threatening, abusive, or otherwise inappropriate workplace conduct and later claim the behavior stemmed from anxiety, PTSD, ADHD, bipolar disorder, or another medical condition.

The ADA requires employers to consider reasonable accommodations that help qualified employees perform their jobs. It does not require employers to excuse misconduct that violates legitimate workplace rules or infringes on the rights of others.

That's not because disability rights are unimportant.

It's because everyone else has rights too.

Coworkers have the right to work free from harassment. Supervisors have the right to establish reasonable professional boundaries. Employers have the obligation to maintain safe, respectful workplaces.

Perhaps most importantly, arguing that disability should excuse harassment does a profound disservice to the millions of employees living with disabilities who never engage in this type of conduct.

Most people with ADHD don't harass their supervisors.

Most people with PTSD don't ignore repeated requests to stop contacting coworkers.

Most people with mental health conditions understand and respect professional boundaries every day.

When litigants suggest that disability itself excuses harassment, they reinforce exactly the kind of harmful stereotypes disability laws were enacted to eliminate—that people with disabilities cannot control themselves or should be held to different standards of conduct.

That's wrong as a matter of law. It's even worse as a matter of public perception.

Disability accommodation and workplace accountability are not mutually exclusive. Good employers can—and should—provide reasonable accommodations while also enforcing neutral conduct rules that protect everyone in the workplace.

The ADA isn't a license to harass. And courts are right to keep it that way.

WIRTW #803: the 'Tubthumping' edition

2026-07-17T07:06:00.000-04:00

🎶 I get knocked down, but I get up again… 🎶

Like just about everyone else of a certain age, I know every word to Tubthumping. It's one of those songs that still somehow finds its way into bars, sporting events, wedding receptions, and random playlists nearly 30 years later.

And because of that, I always assumed Chumbawamba was exactly what it appeared to be: a one-hit wonder with one incredibly catchy song.

I was wrong. Very wrong.

The other night, after Tubthumping came on while we were driving home from dinner, I asked Siri to play more Chumbawamba.

I was completely unprepared for what came next.

Why did no one ever tell me that Chumbawamba is actually a really good band?

I expected a few more songs that sounded like Tubthumping. Instead, I got a musical identity crisis—in the best possible way.

Punk? Yes.
Techno? Yes.
New wave? Yes.
Folk? Yes.
Choral music? Somehow… yes.

Their catalog lurches from one genre to another with complete confidence, and yet it all somehow works. It's chaotic, unpredictable, and more creative than I ever would have guessed from the band that gave us one of the biggest singalong anthems of the 1990s.

Then I did what we all do after discovering something unexpected: I went to Wikipedia.

Turns out Chumbawamba spent decades as an anarchist collective, releasing fiercely political albums long before Tubthumping accidentally made them international stars. They never really seemed interested in becoming famous, and after cashing the checks from their one massive hit, they largely went back to making exactly the music they wanted to make.

Honestly, that explains a lot. Tubthumping wasn't the beginning or the end of the story. It was just the one song that happened to break through.

Sometimes the internet gets it wrong.
Sometimes radio gets it wrong.
Sometimes we get it wrong.

Sometimes a band you dismissed as a one-hit wonder has an entire catalog that's smarter, stranger, and far more interesting than the one song everyone remembers.

I think there's a workplace lesson buried in all of this. We all have a tendency to reduce people to a single data point—the one presentation, the one mistake, the one success, the one reputation. But people are almost always more complicated than that.

The best managers stay curious long after everyone else has stopped paying attention.

So, employers, stay curious. You never know what you might discover when you look beyond the one thing everyone else remembers.

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

These disabled workers lost their jobs. They say AI targeted them — via USA Today

UChicago Law Bans Laptops from 1L Classrooms as Part of Sweeping New AI Strategy for Legal Education — via Robert Ambrogi's LawSites

Internalizing AI Governance: The Practical Thinking So Far — via Privacy & Data Security Insights

How to Train AI to Think Like You — via Social Media Examiner

Former Mayo Clinic Leader Sues System Over Alleged AI Cover-Up: 6 Things to Know — via Above the Law

Treat AI Like Your Brewery's Junior Analyst, Not Its CEO — via The Brewer Magazine

Ford Fired an 11-Year Employee for Stealing a $1.95 Cookie. The Problem? He Paid — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

Become Indispensable: Union Organizers' Key Advice — via Labor Relations Ink

The public's view of the Supreme Court — via SCOTUSblog

She Called Equity Training Racist. Her Own Words About a Black Employee Said Otherwise. — via Eric Meyer's Employer Handbook Blog

Working remotely didn't prove everyone can work remotely all the time — via Ask a Manager

Beyond BMI: Workplace Bias and Weight-Loss Drugs — via Hiring to Firing Law Blog

Court rejects lawsuit from ex-Houston Dash coach over investigation by outside counsel — via Employment & Labor Insider

James Watt Makes Another Bid to Buy BrewDog, Sends Offer to Tilray — via Brewbound

As craft breweries close en masse, BrewDog's new owner says beer is here to stay — via Crain's Cleveland Business

DEI is not a get-out-of-summary-judgment-free card — but it can become evidence of discrimination

2026-07-16T06:57:00.000-04:00

A white man gets fired. His employer has a DEI program. Therefore, the DEI program caused his termination.

That argument has become increasingly common in employment discrimination cases. It's also usually not enough.

But Chavers v. WestRock Services shows what happens when a plaintiff brings more than complaints about corporate diversity goals.

Brian Chavers, a white male, worked for WestRock for nearly 25 years. He had been a supervisor for more than a decade and, only months before his termination, was entrusted with plant-wide leadership training responsibilities.

WestRock fired him after a Black female employee accused him of harassment. The company also relied on a six-year-old "last chance agreement" that, according to testimony, ordinarily should have expired after one year.

Chavers sued, alleging that WestRock terminated him because of his race and sex. As part of his case, he pointed to the company's DEI program, which included representation goals and tied executive compensation to achieving them.

The court denied WestRock's motion for summary judgment.

But it did not hold that DEI programs are inherently discriminatory. Nor did it hold that representation goals prove discrimination against white men.

Instead, the court looked at the entire record.

A senior vice president had allegedly announced that the industry had "too many old white males" and that changes were coming. A former general manager testified that company leadership later used its DEI policy to treat older white men more harshly and target them for termination.

Chavers also offered evidence that several Black employees received repeated chances after misconduct, while WestRock resurrected his six-year-old agreement to justify firing him after one disputed incident.

Then there was the investigation—or lack of one.

The supposed decisionmaker conducted no independent investigation, could not identify what Chavers had actually said, and described the decision as "out of his hands." Other senior managers and HR personnel who normally participated in termination investigations said they had not been involved.

Finally, Chavers offered evidence that management had been warned not to stand "in the way of change in Montgomery."

Standing alone, any one of these facts might not have been enough. Together, the court concluded, they could allow a jury to find that race and sex played a role in the termination.

That distinction matters.

Title VII protects everyone, including white men. An employer cannot fire someone because it wants fewer employees of his race or sex any more than it can fire someone because it wants fewer Black employees or women.

But the mere existence of a DEI policy does not establish that discrimination occurred.

A company may lawfully seek a broader applicant pool, improve recruiting, identify barriers to advancement, and create a workplace in which employees from different backgrounds can succeed. Increased representation also does not, by itself, prove that anyone was unlawfully pushed out. Workforces change for countless legitimate reasons.

A plaintiff still needs evidence connecting the DEI program to the challenged employment decision.

Chavers had that connection—or at least enough evidence of one to get to a jury. He had arguably discriminatory statements, testimony about how the policy was implemented, potentially more favorable treatment of minority employees, suspicious departures from normal procedures, and weaknesses in the employer's stated reason for the termination.

That is the lesson for employers.

Your DEI program is not automatically illegal because a white male employee claims that it discriminated against him. But labels will not protect a program implemented through quotas, race-based decision-making, or selective discipline.

DEI may provide the backdrop for a discrimination claim. It should not provide the evidence that proves it.

"Boys will be boys" is not a harassment defense

2026-07-15T06:46:00.000-04:00

The facts in Sharpe-Miller v. Walmart read less like a judicial opinion and more like an HR nightmare.

An assistant store manager allegedly told a gay employee, "Good—if homosexuals got any more rights, then we might as well legalize pedophilia and bestiality."

Coworkers regularly called him "f****ft," "butt pirate," and "Jerry the fairy." They mocked his walk, joked that he was "afraid to break a nail," made limp-wrist gestures whenever he passed, and one even called him a "pedophile."

Then someone drew a picture on the breakroom whiteboard with "F***T" scrawled across the figure's forehead.

When the employee reported it, his supervisor's response was to erase the drawing and say, "Boys will be boys."

The district court nevertheless dismissed his hostile work environment claim on summary judgment.

Earlier this week, the 10th Circuit reversed.

The opinion is worth reading because it corrects several common misconceptions about hostile work environment law. Most importantly, the court rejected the notion that harassment must amount to a "steady barrage" of discriminatory comments before it becomes actionable. That phrase has appeared in prior cases, but, as the 10th Circuit explained, it is descriptive—not a legal requirement. The governing standard remains the Supreme Court's familiar rule: harassment is unlawful if it is severe or pervasive enough to alter the terms and conditions of employment.

Those two words matter, and mean exactly what they say.

An employee doesn't need to endure daily abuse if a handful of incidents are sufficiently severe. Comparing homosexuality to pedophilia. Calling a gay employee a pedophile. Writing a slur across a drawing in a workplace breakroom. A reasonable jury could conclude that conduct crosses the line even if it wasn't constant.

The opinion also corrects several evidentiary mistakes that employers and lawyers sometimes make.

The district court dismissed comments about the employee's "cat walk," swaying hips, and being "afraid to break a nail" as unrelated to sexual orientation. The 10th Circuit disagreed. A jury could reasonably view those comments as mocking stereotypes associated with gay men, especially when considered alongside the explicit anti-gay slurs.

The court also explained that anonymous comments can still matter, remarks directed at others can still shape the workplace environment, and discriminatory slurs are not hearsay when they're offered simply to prove they were spoken rather than for the truth of what they assert.

Perhaps the most significant part of the opinion addresses an issue the 10th Circuit had never squarely decided before. The court held that discrete employment actions—such as a demotion or termination—can also be considered as part of a hostile work environment claim when they contribute to the overall pattern of discriminatory harassment. Those acts don't disappear from the analysis simply because they might also support separate discrimination claims.

For employers, the practical lessons are straightforward.

First, train your supervisors. More employment cases are lost because of a supervisor's offhand comment than because of a complicated legal issue.

Second, never respond to workplace harassment with "boys will be boys." That phrase doesn't end investigations. It creates lawsuits.

Third, don't assume hostile work environment claims require relentless, daily harassment. Sometimes a few extraordinarily offensive incidents are enough.

And if those incidents are ignored or condoned by management, don't be surprised when a jury—not a judge—gets to decide what happens next.

AI Isn't the Problem. Lazy Lawyering Is.

2026-07-14T06:55:00.000-04:00

Another day, another sanctions opinion involving a lawyer who filed AI-generated legal work product riddled with hallucinated cases.

This time, it's the 11th Circuit.

The court's opinion reads like something that should be satire but unfortunately isn't. Counsel submitted an opening brief citing at least eight nonexistent cases. After opposing counsel pointed out the problem, he tried to fix it by withdrawing the bad citations. Except the eight cases he "withdrew" weren't the same eight fake cases from his opening brief.

Worse still?

The replacement list consisted of eight more hallucinated cases.

You almost couldn't script it better.

The 11th Circuit responded exactly as it should have. It reminded lawyers that competence requires "legal knowledge, skill, thoroughness and preparation." It emphasized that AI is no substitute for actual intelligence. And it referred the attorney for disciplinary proceedings.

Good.

But here's what bothers me about the inevitable reaction to opinions like this.

People will say, "See? AI is dangerous."

No. That's the wrong lesson.

AI didn't file the brief.

The lawyer did.

AI is an extraordinary tool. But it never replaces my judgment. Nor should it.

I would never file a brief without manually checking every citation and every quotation. I don't care whether those citations came from ChatGPT, Lexis, Westlaw, a first-year associate, or my own memory.

Verification is the job.

In fact, this isn't really an AI problem at all. It's the same professional obligation lawyers have always had.

When Lexis or Westlaw gives me a case, I Shepardize it before relying on it. I confirm that the quotation actually says what I claim it says. I make sure the proposition I'm citing is still good law.

That's not because I distrust Lexis or Westlaw. It's because I'm the one signing the brief. AI deserves exactly the same treatment.

The lawyers getting sanctioned aren't victims of unreliable technology. They're victims of their own willingness to skip the last—and most important—step in the process. They accepted the first answer a machine gave them without exercising independent professional judgment.

That's not innovation. That's laziness.

Every time another sanctions opinion like this gets published, it reinforces the false narrative that AI is incompatible with competent lawyering.

The opposite is true.

Lawyers who learn how to use AI responsibly will have a significant advantage over those who don't. They'll work more efficiently, spot more issues, and deliver better value to clients.

But only if they remember one simple rule: AI can draft your brief. It cannot sign your name.

And that's why the responsibility—for every citation, every quotation, every argument, and every word filed with a court—will always belong to the lawyer, not the software.

Apple v. OpenAI offers a master class in spotting trade secret theft before it's too late

2026-07-13T07:06:55.712-04:00

Apple's newly filed trade secret lawsuit against OpenAI contains an allegation that should make every employer's ears perk up.

According to the complaint, multiple departing Apple employees allegedly emailed Apple's confidential information to their personal email accounts on their way out the door. Apple also claims that some former employees later used Apple's confidential and trade secret information to help OpenAI develop competing hardware.

Whether Apple ultimately proves those allegations is for the courts to decide.

But the behavior it describes is one of the oldest—and most obvious—red flags in the employee-theft playbook.

When someone suddenly starts forwarding company files to Gmail the week before resigning, odds are they're not creating a personal scrapbook.

The good news is that employees who steal information often leave breadcrumbs. The key is knowing what to look for.

1. Forwarding files to personal email. This is the classic tell. Employees suddenly emailing themselves spreadsheets, customer lists, source code, pricing information, engineering documents, contracts, or other confidential files shortly before giving notice should immediately raise concerns. Sometimes they'll even justify it by saying they're "working from home" or "need it for reference." Maybe. But if that activity spikes immediately before resignation, it's worth investigating.

2. Unusual downloading or printing activity. Most employees have predictable habits. Then, two weeks before resigning, they download thousands of files they've never previously accessed. Or print hundreds of pages. Or export an entire CRM database. Volume matters. Timing matters even more.

3. Plugging in personal USB drives or external hard drives. USB devices remain one of the fastest ways to walk out with gigabytes of proprietary information. Most organizations can monitor—or even block—these transfers. If your systems aren't logging USB activity, they should be.

4. Cloud uploads. Dropbox. Google Drive. OneDrive. iCloud. Personal cloud storage has largely replaced the thumb drive as the preferred method of taking company information. Watch for large uploads to personal accounts, particularly after hours.

5. Accessing information unrelated to the employee's job. Salespeople suddenly reviewing engineering files. Engineers downloading HR records. Finance employees opening customer databases. Curiosity isn't always innocent. When employees begin accessing information outside their normal responsibilities shortly before departure, ask why.

6. Odd-hour activity. A longtime employee who always worked 8:30 to 5 suddenly starts logging in at midnight. Or on weekends. Or while supposedly on vacation. Sometimes there's a perfectly innocent explanation. Sometimes there isn't.

7. Deleting evidence. Ironically, people trying to hide theft often create another red flag. Large-scale email deletions. Deleted folders. Cleared browser histories. Attempts to disable logging. Employees trying to erase their tracks often leave new ones.

8. Sudden interest in confidential projects. Employees who are leaving sometimes begin asking for access they've never needed before. "I just wanted to understand the project." Maybe. Or maybe they wanted one last chance to copy it.

9. Competitor timing. An employee resigns on Friday. Starts at your direct competitor Monday. Combined with suspicious electronic activity before departure, that timing deserves attention. Competition is legal. Taking your former employer's trade secrets to help your new employer compete isn't.

Apple may eventually prove its allegations. OpenAI may successfully defend against them. That's what litigation is for. Prevention, however, is far easier and much less expensive than litigation. Indeed, employers shouldn't wait until they're filing a lawsuit to think about protecting their confidential information.

Have written confidentiality agreements.
Limit access to sensitive information on a need-to-know basis.
Monitor unusual data activity.
Conduct meaningful exit interviews.
Collect company devices immediately.
Disable access promptly.

And if your IT team sees an employee forwarding confidential files to a personal Gmail account the day before they resign? Don't ignore it.

More often than not, trade secret theft announces itself before the employee ever walks out the door. The question is whether anyone notices.