Ohio's new AI Ethics Guide for Lawyers is worth reading.
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Ohio's new ethics guide — Artificial Intelligence for Lawyers and Judicial Officers — leaves one big question unanswered

Ohio's new AI Ethics Guide for Lawyers is worth reading.

It tackles many of the questions lawyers have been asking since generative AI entered the mainstream: competence, confidentiality, client communications, billing, hallucinated citations, supervision, and judicial use of AI.

First, credit where it's due. Ohio deserves praise for stepping into a conversation that many jurisdictions have been reluctant to have. Lawyers are hungry for practical guidance on AI, and doing nothing is no longer an option. The Ohio Board of Professional Conduct deserves recognition for taking a serious run at a rapidly evolving issue.

Which is why one part of the Guide surprised me. On the question of whether lawyers can ethically disclose client information to AI platforms, the guidance seems to say both yes and no.

On one hand, the Guide acknowledges that lawyers may use AI tools in client representations and contemplates circumstances in which client-related information may be entered into an AI system. It advises lawyers to use AI products with adequate security measures and confidentiality safeguards.

"[O]nly AI tools offered with adequate security measures and other confidentiality safeguards should be used when client-related information is disclosed (or information possibly leading to the identity of a client)."

But then it says this: 

"Regardless of the AI tool utilized, lawyers should always anonymize client information and refrain from inputting details that could lead to the discovery of the client's identity."

If that's the rule, then what exactly are we talking about when we discuss secure enterprise AI platforms?

Because if lawyers must always anonymize client information and avoid information that could reveal a client's identity, then the security measures, confidentiality protections, and contractual safeguards of a particular AI product become largely irrelevant. Under that reading, the answer is simple: never disclose client information to any AI platform, no matter how secure.

Yet the Guide spends considerable time discussing the use of AI tools that expressly do not store, train on, or share user data.

That discussion only makes sense if disclosure of client information is sometimes permissible when adequate safeguards exist.

Those are two very different standards.

One says: Only use secure AI tools when disclosing client information.

The other says: Never disclose identifiable client information at all.

For firms trying to develop AI governance policies, that distinction matters.

Lawyers have been sharing confidential client information with third-party vendors for decades—email providers, cloud storage companies, document management systems, e-discovery vendors, and legal research platforms. The ethical question shouldn't be whether AI is different. The question should be what safeguards are sufficient to permit its use.

A helpful tip on the FLSA's tip credit

For many craft breweries, the taproom is where the magic happens. It's where customers connect with your brand, your beer, and your people. 

It's also where wage-and-hour lawsuits often begin. 

Artisanal Brewing Ventures, the company behind Southern Tier, Victory, and other craft beer brands, is facing a nationwide collective action over its pay practices at 15 taprooms across five states. At the heart of the lawsuit is an issue that too many hospitality employers overlook: compliance with the Fair Labor Standards Act's tip-credit rules. 

The allegations should sound familiar to brewery owners. Servers and bartenders allegedly were paid the tipped minimum wage while performing opening and closing duties, cleaning, stocking inventory, moving kegs, taking out trash, and other side work. The lawsuit also claims employees worked off the clock and that the company failed to satisfy the notice requirements necessary to claim a tip credit. Those allegations were enough for a federal judge to conditionally certify a nationwide collective action and authorize notice to be sent to tipped employees throughout the company's operations. 

Whether those allegations prove true remains to be seen. What matters is how easily tip-credit issues can turn into expensive litigation. 

Many employers mistakenly believe that paying a tipped employee a cash wage and allowing them to keep tips is enough. It isn't. 

The FLSA imposes specific requirements before an employer can claim a tip credit. Employees must receive required notice. Tip pools must be structured correctly. Employers must ensure tipped employees are performing tip-producing work when paid at the tipped rate. Certain non-tipped duties can create liability if not handled properly. And every minute worked must be recorded and paid. 

Get those rules wrong and the consequences can be severe. 

The risk isn't limited to one employee claiming a few dollars in unpaid wages. A defective tip-credit practice often affects every server and bartender in every location. That's why plaintiffs' lawyers target these cases. One alleged policy can become a collective action spanning multiple locations and hundreds of employees. Here, the court found sufficient evidence of an alleged common policy to allow notice to be sent to similarly situated tipped employees nationwide. 

For craft breweries, the lesson is simple. 

Don't assume your tip-credit practices are compliant because they've always been done that way. Review your onboarding documents, side-work requirements, tip-pooling procedures, and timekeeping practices. Make sure managers understand when tipped employees must be paid the full minimum wage and ensure no one is working before clocking in or after clocking out. 

The taproom may be the heart of your brewery. It's also one of your biggest wage-and-hour risks. A proactive audit today costs far less than defending a collective action tomorrow.

🎶 With my mind on my Title VII and Title VII on my mind. 🎶

Barbie Bassett, a longtime white news anchor for WLBT, lost her job after two on-air comments her employer deemed racially offensive. First, she referred to a Black reporter's grandmother as "grand m*mmy." WLBT received viewer and employee complaints and gave Bassett a written warning.

Less than six months later, during an on-air segment about Snoop Dogg, Bassett dropped the phrase, "fo shizzle, my n**zle." A Black co-anchor immediately told her, "I can't believe you just said the N word on live TV."

Complaints followed, as did national media, and then Bassett's termination.

She sued, claiming race discrimination. Her argument was, basically, WLBT fired her because she was white, relying heavily on testimony from the station's general manager that "there are some things that Black people can say that White people can't say."

The 5th Circuit was not having it. Title VII does not require employers to make perfect decisions. It requires them to make non-discriminatory ones. WLBT said it fired Bassett because she twice used racially offensive language on air, the second time after a written warning. That is a legitimate, non-discriminatory reason.

Maybe WLBT was wrong about what Bassett meant. Maybe she meant no harm. Maybe she thought she was merely quoting Snoop. None of that mattered. As the court put it, management does not have to make proper decisions, only non-discriminatory ones.

That is the key employer takeaway. Intent does not always save an employee. Impact matters. Reputation matters. And when the employee has already been warned, the next mistake may be the last.

This case also offers a reminder about "context." Yes, context matters. But context is not a magic wand. "I was just quoting a song" will not always get an employee back on the payroll. Some words carry freight. Some phrases carry history. And some live-TV comments leave employers with little choice but fire.

Employers should still be careful. Investigate. Document. Apply standards consistently. Avoid loose comments that sound like different rules for different races. But when an employee violates workplace standards after a clear warning, courts are not likely to second-guess the employer's business judgment.

Or, to borrow from Snoop: with Title VII, you have to mind your Ps and Qs … and definitely your Ns.

The one mistake I keep seeing employers make, over and over again

One of the biggest mistakes I see employers make, over and over again, is treating employee wage information as "confidential."

Policies that ban employees from discussing pay.

Confidentiality rules that include "wages," "salary," "compensation," or "payroll information."

Managers who tell employees they are not allowed to ask coworkers what they earn.

HR departments that discipline employees for talking about their pay.
Employers that fire employees for creating or sharing salary spreadsheets.

Stop it.

Federal labor law protects discussions of employees' pay data by non-supervisory employees. Period.

Vermont Information Processing learned that lesson the hard way.

Software engineer Christopher Bendel and a coworker compared salaries over Google Workspace. Then Bendel created a spreadsheet. Within hours, about 25 employees added their pay information. Management found it, hated it, disabled it, and fired him.

VIP defended the termination by calling Bendel disruptive, disloyal, hostile, and guilty of misusing company technology. The D.C. Circuit was not buying it.

The court upheld the NLRB's finding that VIP unlawfully fired Bendel because of his protected activity. The timing mattered. VIP had planned a new role for him before discovering the spreadsheet. Within roughly 90 minutes, he was gone. The shifting explanations looked like what they were: excuses.

The court gave VIP a partial win as to the other three fired employees, but not because salary sharing lost protection. The issue was procedural. The Board relied on a broader "workplace conditions" theory than the complaint had fairly charged.

Do not miss the forest for that procedural tree.

The core lesson is unchanged. Federal labor law protects pay transparency among non-supervisory employees, union or no union. Few things are more obviously about mutual aid or protection than employees comparing wages to determine whether they are paid fairly.

That means you cannot ban pay discussions. You cannot tell employees their wages are confidential. You cannot discipline them for asking coworkers what they make. You cannot fire them for creating a salary spreadsheet. And you cannot launder retaliation through complaints about attitude, disruption, loyalty, or culture fit.

Employers may still enforce neutral rules about working time, access to systems, trade secrets, harassment, threats, and sabotage. But those rules must be real, consistently enforced, and not a pretext to punish protected pay talk.

If your pay practices are defensible, you should be able to defend them. If they are not, the spreadsheet is not the problem. Your pay practices are.

WIRTW #799: the 'inclusion' edition

Is it too much to ask a school to provide a gluten-free treat for my son?

Donovan has Celiac disease. The school has known of his autoimmune disease since he started there in kindergarten. (He just finished 11th grade.)

Yesterday, the school provided cupcakes to the entire upper school to celebrate the end of finals.

That is, the entire upper school except for my son and the few others who cannot eat gluten, because no gluten-free treats were provided. Nor did the school let us know in advance so that we could send something of our own.

No one is asking for special treatment. Quite the opposite. We're asking for equal treatment. We're asking that students with medical dietary restrictions be given the same opportunity to participate in the small moments that help build community and belonging.

What makes this especially frustrating is how easy the accommodation would have been. Gluten-free cupcakes are not rare. They're not difficult to find. And if obtaining them wasn't feasible, a simple heads-up to affected families would have solved the problem.

This is exactly why inclusion matters, despite what current resident of the White House wants us to believe. Inclusion isn't about ideology. It's about making sure people don't feel invisible.

Yesterday, Donovan felt forgotten. He felt like no one cared enough to think about him. Whether that was anyone's intent is beside the point. The impact was the same.

No one should feel that way at school. No one should feel that way at work.

The best schools and the best employers understand that belonging is built in the small moments. It's created when leaders take the extra step to make sure everyone can participate. It's reinforced when people with disabilities, medical conditions, religious obligations, or other differences aren't treated as afterthoughts.

Inclusion is not measured by mission statements, diversity committees, or carefully crafted website language. It's measured by whether people think about those who might otherwise be left out. A cupcake at the end of finals may seem trivial to most students. But when everyone else is celebrating together and you're the one standing on the outside looking in, the message is impossible to miss: this wasn't planned with you in mind.

Schools and employers teach lessons every day that never appear in textbooks or training manuals. This week's lesson was that some people belonged in the celebration and others were left standing outside it.



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

'Democracy Dies in HR' Is Great Clickbait—and Bad Management Analysis — via Improve Your HR by the Evil HR Lady, Suzanne Lucas

Who Should Investigate a Harassment Complaint? Not the Harasser. — via Eric Meyer's Employer Handbook Blog

Attendance Policy, Not "Stray Remarks," Drives Win For Employer — via Dan Schwartz's Connecticut Employment Law Blog



What Are Your Company's AI Nightmares? — via Harvard Business Review


Seven strikes, and this employer is out — via Employment & Labor Insider

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