Ohio Employer Law Blog | Daily Updates | 01CIf you're going to buy the hype, at least read the fine print>01D plus more

If you’re going to buy the hype, at least read the fine print

For years, BrewDog invited fans to become "Equity Punks." Not just customers. Owners. Across seven crowdfunding rounds, roughly 220,000 investors poured in about £75 million (that's more than $100 million).

Now, as BrewDog explores a sale or break-up, many Punks may be staring at a zero return, and they are not happy about it.

"Well at least I got £2.34 off an order once. Not a bad return for £500," wrote one online. Another told the BBC, "I invested £12,000 in BrewDog - I think I've lost it all."

Not because the rules changed. But because the rules were always there.

In 2017, private equity firm TSG invested and reportedly secured preferred shares with a liquidation preference. Translation: TSG gets paid first. If a sale price doesn't exceed what TSG is owed, common shareholders, the Equity Punks, get nothing.

That's not villainy. That's just basic capital structure.

And believe me, given BrewDog's track record of harassment and other employee mistreatment, I'd love to lay the blame here at their feet. But this outcome flows from the documents, not from some last-minute sleight of hand.

The investment risks weren't hidden. Early prospectuses warned that Equity Punk investments were speculative, illiquid stock and that investors could lose everything. They also disclosed the company could later issue shares with rights senior to existing holders. By 2017, the documents were clearer still: preferred shares already sat ahead of common stock and could reduce B shareholders' returns (the Equity Punks) in a sale to zero.

Yes, TSG came later than many early investors. But timing doesn't control priority, the investment documents do. Early common shareholders typically agree the company can issue later preferred shares with superior rights. If that authority existed (and there's no indication here that it didn't) then nothing was retroactively taken. The risk was embedded from the start.

Preferred equity sits at the top of the stack. Common sits at the bottom. It enjoys the upside if things soar. It absorbs the loss if they don't.

Add several years of losses and declining sales to the mix, and the math becomes unforgiving.

Separate from the capital structure is the company's broader arc: a brand that began white-hot and later struggled amid criticism about leadership, culture, workplace practices, and a toxic culture. Whether that drove the decline is debatable. The preference stack is not.

The fine print tells you who gets paid first. If you don't read it, that's on you, not the company.

Your ChatGPT history as a hiring test? That's a hard no.

"Take out your phone and open your ChatGPT app. Type this prompt: 'Based on my past conversations, analyze my behavioral tendencies.'"

In a Reddit post that has gone viral, that's what someone claims just happened to them during a job interview.

If that interview scenario is real, the issues aren't just ethical. They're also potentially legal.

Here's the framework. Employers are allowed to use personality assessments in hiring. But those assessments live in a carefully regulated space.

Under the ADA, an employer may not require a medical examination or make disability-related inquiries before a conditional offer of employment. The EEOC draws a line between permissible "personality tests" (measuring traits like honesty or preferences) and impermissible medical or psychological exams that screen for mental disorders such as depression, anxiety, or PTSD.

A standard, validated personality assessment that does not diagnose or identify mental impairments is generally lawful pre-offer. But a tool designed to reveal mental health conditions—or that predictably elicits that information—crosses into prohibited territory.

Now apply that framework to: "Based on my past conversations, can you analyze my behavioral tendencies?"

What's in those past conversations? For many users: therapy-adjacent discussions, stress about family, questions about ADHD, depression, medications, burnout, addiction, trauma. If an employer requires a candidate to generate and disclose a summary built from that data, it is difficult to argue the employer is not, at minimum, eliciting disability-related information.

Intent isn't the only issue. Effect matters. If the process predictably surfaces mental health indicators, the employer may be conducting an unlawful pre-offer medical inquiry—without calling it one.

There's another problem. Personality testing must be job-related and consistent with business necessity if it disproportionately screens out individuals with disabilities. An AI-generated "behavioral tendencies" report is unlikely to be validated for any specific role. No validation study. No reliability metrics. No guardrails. Just a black box summary.

That's we lawyers call a precursor to litigation.

Add in the power imbalance of an interview setting, and "voluntary" disclosure becomes legally murky. If a candidate feels compelled to reveal information that touches on protected conditions, you've created risk before the first day of employment.

AI in hiring isn't inherently unlawful. But using a candidate's personal AI history as a de facto psychological assessment? That starts to look a lot like a medical exam dressed up as innovation.

When AI tools wander into the territory of mental health assessment—even indirectly, the ADA is not optional. Employers who ignore that line do so at their peril.

The 2nd nominee for The Worst Employer of 2026 is … The (Not) Joking CEO

At a company keynote in Las Vegas, Salesforce CEO Marc Benioff invited the international employees to stand. He then joked that ICE agents were in the back of the room, ready to deport them. He doubled down with more immigration-enforcement punchlines. The crowd responded with faint boos. Slack lit up with employees calling the comments "deeply horrifying" and "not funny."

Here's the part that makes this more than just a bad attempt at humor: this comes on the heels of multiple fatal shootings involving federal immigration agents, increased enforcement that ignores people's civil rights, and other acts of violence. People are dead. Families are grieving. And a billionaire CEO thought it was a good idea to riff on deportation for laughs.

Read the room.

As management-side counsel, I spend a lot of time telling executives that words matter. Culture isn't what's printed on the lobby wall. It's what leaders say and do when the spotlight is on them. When you talk about "trust" and "equality" in one breath and joke about immigration raids in the next, don't be surprised when your employees call foul.

This isn't about politics. It's about judgment. Poor judgment.

When a general manager publicly says the jokes were "indefensible" and don't align with his values, that’s not a minor PR hiccup. That's your own leadership team distancing itself from you. When employees start circulating letters demanding policy changes and public denunciations, you've turned a keynote into a crisis.

Could this have been avoided? Of course. "Just do the corporate presentation." Talk about products. Talk about growth. Talk about strategy. Do not make deportation the punchline. Don't make your international employees the butt of a tasteless joke.

Humor in the workplace is tricky. Humor about immigration enforcement—especially amid real-world violence—is radioactive. Leaders who don't understand that are either insulated from reality or indifferent to it. Neither is a good look.

If you're the CEO, you don't get to test-drive edgy material at the expense of your workforce's sense of safety and decency. If you make vile jokes about ICE raids, don't act shocked when your employees decide you're the problem, or when you're nominated as the Worst Employer of 2026.

Pro tip from pop culture: Don't fire your employees while they are in the ER

"If you fire her, she will sue you and I will testify."

That's not a plaintiff's lawyer talking. That's Dr. Robby, the chief of emergency medicine on The Pitt, grabbing a patient's phone and putting her boss on notice while she's being treated for what looks like SIRS—a systemic inflammatory response that's threatening her leg and possibly her life.

Debbie Cohen is in the ER. Her rash is spreading. Three senior physicians are at her bedside. And her biggest fear is missing work.

Her boss keeps calling, accusing her of exaggerating, dangling termination if she doesn't show up. At one point she pleads, "Please! Please don't fire me!"

Let's talk about the law.

We don't know whether her employer is large enough to be covered by the FMLA or whether she's worked long enough to be eligible. The episode doesn't give us headcount or tenure. But if the company meets the 50-employee threshold and Debbie satisfies the 1,250 hours/one year eligibility requirements, this is easy. Once the employer has notice she's in the ER with a serious health condition, firing her for missing work is classic FMLA interference and retaliation.

You don't get to terminate someone for being hospitalized after you've been told she's hospitalized.

And even if the FMLA doesn't apply, the ADA almost certainly does. A condition serious enough to land someone in the ER with a systemic inflammatory response almost certainly qualifies as a disability. The ADA requires reasonable accommodation. Time off for emergency treatment is about as reasonable as it gets. The appropriate response isn't skepticism and threats. It's flexibility and dialogue.

But here's the bigger issue. If your employee, sitting in an ER fearing for her life, is more worried about getting fired than getting better, your culture is badly broken. No one should need a doctor to threaten to testify in a lawsuit for a manager to show basic decency.

Employers, make sure you understand your FMLA obligations, respect the ADA's accommodation requirements, and build a workplace where medical emergencies trigger support—not suspicion and threats of termination.

WIRTW #789: the 'while my guitar gently weeps' edition

Fifty-three today.

That's either mid-50s or early-50s depending on how generous you're feeling. I'm choosing the latter.

Staying young has less to do with age and more to do with intention. You don't stumble into it. You choose it. It's a mindset, not a calendar.

For me, that means leaning hard into the stuff that makes life feel big.

Family first. Always. My family and I are soon heading to London soon to tour universities with my son as he chases a future studying sports and football management. My wife and I keep stacking travel plans instead of excuses. There is never not a good reason to travel, and this happens to be a really good one.

It also means restarting the daily exercise habit. Again. Because nothing says "53" like making noises when you stand up. Movement is the antidote. So I'm trying to move more every day.

And concerts. Loud ones.

Next up: a Valentine’s Day date with my daughter. Descendents and Frank Turner & the Sleeping Souls at the House of Blues. We'll be in the pit. Look for us if you're there, too. As a concession to my age—and my hearing—I invested in a good set of ear plugs for the first time. Growth comes in many forms.

Staying young is saying yes to the pit. Ask me Sunday if it was a wise choice. I’m hoping for sore legs, ringing ears (muted responsibly), and zero regrets.

On this week's episode of the Norah and Dad Show, we talk through our expectations for this show, as well as the importance of wearing sensible shoes to a rock show. We also mourn the untimely passing of Norah's beloved Martin acoustic guitar, Eleanor. Listen to this week's episode of The Norah and Dad Show, available on Apple Podcasts, Spotify, YouTube, Overcast, Amazon Music, in your browser, and everywhere else you get your podcasts.

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

Following Suit by Law Students, EEOC Backs Down on Data Demands to Law Firms — via Democracy Forward

AI Data Center Expansion Poses High Risk of Child Labor Issues — via Bloomberg Law

How Not to Handle Suspected FMLA Abuse — via Eric Meyer's Employer Handbook Blog

Fewer workers say they feel a positive impact from DEI initiatives than prior years — via HR Dive

I'll drink to orderly queues in pubs — via The Guardian

DHS Is Hunting Down Trump Critics. The 'Free Speech' Warriors are Mighty Quiet. — via Above the Law

Rehab Addict Canceled at HGTV After Host Nicole Curtis Uses Racial Slur During Filming — via TVLine

Employee openly cheated on her partner at our company party — via Ask a Manager

The justices and gender pronouns — via SCOTUSblog

What’s the ROI on AI? — via Harvard Business Review

Unlimited PTO Sounds Generous—Until You Get Sick — via Improve Your HR by Suzanne Lucas, the Evil HR Lady