A Black employee emails the CEO about racism at work. Nine days later, the company fires her. How did she lose her retaliation claim?

Ebony Kelley, a Black airport customer service agent for Allegiant Air, was accused by a white coworker of calling her a racist during a breakroom spat over a computer.

Kelley denied it to HR, in an interview and in writing. Three witnesses said she did it.

On December 19, 2022, HR suspended her for dishonesty. Five hours later, she emailed Allegiant's CEO. Subject line: "Racism at pie international."

Allegiant read one sentence as a confession. Kelley wrote that she had "addressed a co worker about their racist comments and then I was placed on suspension." Allegiant took that as an admission she'd lied to HR.

The CEO never responded. Allegiant fired her on December 28.

The 11th Circuit just affirmed summary judgment for the airline on her race discrimination and retaliation claims. The reason why is a lesson in how documentation can make or break an employment lawsuit.

The coworker's alleged "jokes" were ugly. But Kelley hadn't reported those particular remarks to HR or a supervisor until HR was investigating her. She said she "preferred peace." The court all but said the result might have been different had she spoken up before she was in the hot seat.

The discrimination claim failed because Kelley couldn't show a comparator or a convincing mosaic. Crediting three witnesses over the accused isn't suspicious.

The retaliation claim failed on but-for causation. The suspension predated the CEO email. And the court treated Kelley's dishonesty as an intervening act that severed the causal chain, so the close timing didn't help her.

Allegiant won because it did the unglamorous work. It investigated the original complaint, collected three witness statements, and suspended Kelley before the CEO email ever landed. And when Kelley raised her own allegations of racism, HR followed up on those, too.

Don't read this case as a license to ignore discrimination complaints that arrive during a disciplinary investigation. A racism complaint arriving the same day as a suspension is exactly the timing plaintiffs' lawyers love. Keep the original investigation on its own track, document the independent reasons for your decision, and investigate the new complaint on its own merits.

The complaint came too late. This employer won because its paper trail came first.

"Campus security came pounding on the doors and told us we needed to evacuate."

That's my daughter, Norah, on the newest episode of The Norah and Dad Show, describing how her class in Aix-en-Provence was evacuated. It wasn't a fire or a threat. French students are in the streets.

For the past three weeks, high school and university students across France have been protesting the state of their public schools. Streets are closed. Blockades are going up. Classes are canceled, and Norah is back on Zoom.

Zoom classes are rough, especially in a second language. But I can't stop admiring what's happening around her.

The demands are reasonable. Shorter school days. Permanent teachers instead of a rotating cast of subs. Buildings that don't turn into ovens in a heat wave. That's not a revolution. That's a punch list.

And this is France. Protest isn't a disruption of the civic order here. It is the civic order. The French have been practicing since 1789, and their government knows what happens when it overreaches. Teachers are standing with their students, not against them. And when a student in Paris reportedly lost teeth to a police projectile, the officer who fired it was reportedly arrested.

Norah, meanwhile, is doing the smart thing. Foreign students who get arrested get sent home, so she's supporting from a distance. In the meantime, she's living through an A+ lesson in French culture.

I asked her whether Americans would ever do something like this. She doubts it. Her theory is that people here have stopped expecting those in power to answer to anyone.

That's the part that bothers me. The First Amendment protects the right to assemble and to petition the government for a redress of grievances. We wrote it down. We just seem to have forgotten what it's for.

Sure, we protest. But it's for a day, maybe two. Then people lose interest, or the authorities crack down so hard that people are afraid to continue.

Yes, I know No Kings marches return across the country Saturday. It's the first nationwide one since March. Yet, as the French have continuously demonstrated, civil disobedience can and does work. 

 

Indeed, we could learn from the French. Dissent isn't disloyalty. A government confident in its decisions can survive people objecting to them in public. And accountability isn't optional. In France, the officer who crosses the line can get arrested. Here, far too often, nothing happens.

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You can hear all about it on our podcast — available on Apple Podcasts, Spotify, YouTube, Amazon Music, your web browser, and everywhere else you get your podcasts.

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UPDATE: Earlier this week I reported on Bloomer v. Adell. In the case, a pastor who hosted a show on the Word Network sued its owner, Adell, for racial harassment, alleging the owner kept sending racially mocking texts after being told in writing to stop. Yesterday, the jury came back with quite the verdict —$62.2 million. WDIV has the details.

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

SHRM loses service dog trial, owes former job applicant $400K — HR Dive

Second Circuit Holds Single Harassment Claim Can Keep Employee's Entire Lawsuit Out of Arbitration — Employment Law Letter

Losing your job after age 50 could derail your career — Business Insider

Why Even Your Best Employees Override AI Systems That Work — Harvard Business Review

A Hiring Manager Called a Candidate 'Too Stupid to Work Here.' The Real Failure Wasn't the Candidate — Improve Your HR by Suzanne Lucas, the Evil HR Lady

Ancestry's CEO says a billionaire boss taught him to eat lunch with employees in the break room — Fortune

Suspected FMLA Fraud? The Investigation May Need One More Call. — The Employer Handbook

Companies rushed in on AI. Now some are pulling back — The Guardian

Republicans face midterm backlash from factory workers squeezed out of jobs by Trump's tariffs — Associated Press

Trump Press Secretary Katie Zacharia Speaks For Everyone Who Put 'Attorney' On LinkedIn Before Bar Results — Above the Law

2026 Great American Beer Festival Winners — Great American Beer Festival

Imagine requiring employees to complete two hours of online training every week, giving them no time to do it during their shifts, and then refusing to pay them when they finish it at home.

That's essentially what a former Rivian service technician alleges in a proposed class action in Washington state court. He claims non-exempt employees had to complete mandatory training modules off the clock, sometimes pushing their workweeks past 40 hours without overtime pay.

Those are allegations, not proven facts. But the wage-and-hour lesson is one every employer with an online training platform needs to understand.
Under the DOL's regulations, training generally is unpaid only when all four of these conditions are met:

1. It happens outside regular working hours. Requiring employees to finish training by Friday doesn't magically make it unpaid just because they do it Thursday night on their couch.

2. It's genuinely voluntary. Required isn't voluntary. Neither is "optional" training when employees reasonably believe skipping it could cost them a raise, promotion, or even their job.

3. It isn't directly related to their current job. Teaching employees to do their existing jobs better? That's job-related. Teaching them skills for an entirely different position may be another story.

4. No productive work happens during the training. If employees are performing actual job duties, you can't disguise that work as unpaid training.

Miss even one, the exception doesn't apply, and the time must be paid.

Further, don't assume that because non-exempt employees are completing training at home, you can ignore the time. Under the FLSA's "suffer or permit" standard, employers generally must pay non-exempt employees for work they know or have reason to know is happening. If your training platform shows non-exempt employees completing mandatory modules off-the-clock, and you've given them no time to finish during their shifts, those records will come back to haunt you.

Then there's the overtime math. If an employee works 40 hours and completes two additional hours of mandatory training at home, that's potentially two hours of unpaid overtime, and not just two hours of missed wages.

You can fix this problem simply by providing non-exempt employees paid time to complete required training. If they must finish it outside their scheduled shifts, make sure they record that time and get paid for it. Finally, make sure supervisors aren't sending mixed messages about reporting those hours.

You can't require the training, refuse to make time for it, and then pretend it didn't happen because it was completed at home. Homework is for school. At work, it's just called work.

Your plant's first shift starts at 6:00 a.m. But you tell everyone to be at the door by 5:45, ready to work.

Most mornings, the supervisor unlocks the building on time. About once a week, he doesn't. The time clock is inside. So employees stand in the parking lot for fifteen minutes, unpaid.

Do you owe them for that time?

According to the 2nd Circuit, quite possibly.

In Santos v. Lidl US, a grocery clerk alleged that Lidl required her to report fifteen minutes before her 5:00 a.m. shift. But managers weren't always there to unlock the store. She couldn't clock in until someone let her in. About once a week, she lost fifteen minutes of pay, sometimes at overtime rates.

The district court dismissed her claim under the Portal-to-Portal Act, which generally excludes preliminary activities from compensable working time.

The 2nd Circuit reversed because there's a difference between "waiting to be engaged" and being "engaged to wait."

If an employee voluntarily shows up early, that waiting generally isn't compensable. But if you require an employee to report ready to work, and something beyond their control prevents work from starting, that waiting time is compensable.

Lidl argued that Supreme Court precedent foreclosed that conclusion and that the rule applied only to on-call workers, like firefighters. The court rejected both arguments.

It also refused to dismiss fifteen minutes a week as de minimis. Small doesn't automatically mean insignificant, particularly when the time is recurring and trackable.

Judge Sullivan dissented, reasoning that the waiting wasn't integral to Santos's job and that she could have arrived at her scheduled start time.

This wasn't a final judgment. Santos still must prove her allegations. But her FLSA collective action and New York wage claims are back in play.

So what should employers do?

1. Look at what you require. "Be here fifteen minutes early" isn't a suggestion. If employees must report ready to work but can't start because of something you control, that waiting time may be compensable.

2. Fix the access problem. Install an outside time clock, enable mobile clocking, or ensure someone with a key arrives on time. And pay employees for compensable time even if they can't clock in.

3. Don't dismiss small amounts of time. Fifteen minutes a week sounds trivial. Multiply it across employees, weeks, and overtime rates, and it adds up.

If you don't need employees there fifteen minutes early, don't require it.

You don't get to control when employees show up, keep them waiting, and then pretend their time doesn't count just because the door is locked. 

"I didn't know women just dress like whores now?"

That was one of the punchlines from Shane Gillis's Saturday Night Live monologue this past weekend. The studio audience groaned. Gillis just kept on going.

Now imagine your regional sales manager saying it in Monday's staff meeting. Same words. Same smirk. Very different exposure.

Gillis isn't your employee, and nobody's filing a lawsuit over a monologue. But it's the premise that's the problem. A woman's clothes are never an invitation for men to judge her body. The men doing the judging are the ones in the wrong.

That attitude doesn't stay on a stage. And a stage that big gives it license to walk into your workplace and sit down in the break room.

Defenders will say it's just a joke. That's how this stuff survives. A joke sets the rules of the room faster than any handbook. Everyone hears what's acceptable, and then tests whether anyone will push back.

The woman who hears it learns two things in about four seconds. What he thinks of her. And that nobody is going to say anything.

One joke usually isn't actionable harassment. Title VII and state law require conduct that's severe or pervasive. But it's never really one joke. It's the first one.

And when the claim finally lands on your desk, the question won't be who told the joke. It will be what you did when you found out.

That's where employer liability lives. Not in the punchline. In the silence after it.

Dan Levy called the joke out on Instagram and argued that men, in particular, need to speak up and speak out against misogyny. That goes double at work.

Supervisors don't get to laugh along, and they don't get to stay quiet. Say something in the moment. Report it afterward. And make sure your training says out loud that "it was just a joke" isn't a defense. It's an admission that someone said it.

The SNL studio audience groaned. In your workplace, someone needs to do way more than that.

"So sensitive" is not a harassment defense WIRTW #813 (the 'isn't it ironic' edition) A supervisor isn't always a "supervisor" when it comes to sexual harassment "4x per month for 1 day" is a lawsuit written in shorthand. Manchester City, one phishing email, and 114 reasons to train your employees