Notch 8 Brewery's owner told a bartender he would not tolerate her "backdoor" conversations with coworkers. The NLRB just said those words are direct evidence of animus.

Rebecca Spitzer had been a beertender at the brewery for about seven weeks. She heard coworkers complaining about long hours and missed breaks, and told them they might be owed overtime and could contact the NLRB or the Department of Labor. Then she contacted the Department of Labor herself.

Two days later, the owner called her into his office, angrily said someone he trusted had told him what she was doing, and sent her home. That same day, the brewery posted on Facebook that it was hiring beertenders.

The NLRB just affirmed that decision. Sending her home, posting her job, and cutting off her scheduling access would lead a prudent person to believe she'd been fired. The Board also rebuked the brewery's claims of misconduct. It never investigated them during Spitzer's employment and raised them for the first time only after the charge was filed. That's classic pretext, said the Board.

I have three key lessons for employers to take away from this case.

1. When an employee says pay or breaks look wrong, or you have a safety or some other workplace issue, you have a compliance question to answer. Fix the problem if there is one. Explain it if there isn't. Firing the messenger turns the question into a federal labor charge or a lawsuit.

2. Nothing here required a union. Employees talking about overtime and breaks is protected concerted activity, and one employee's call to a state agency can be a logical outgrowth of that.

3. If a union is sniffing around your workers, retaliation is the best organizing pitch you can hand it. The organizer's whole argument is that speaking up gets you punished unless someone has your back. Fire the person who raised a concern and you've proven the point. At Notch 8, coworkers followed the whole thing in group texts, and one wrote that firing a whistleblower "sounds kinda illegal." Your workforce reads the same signals.

Employee complaints are free advice. Acting on them costs little, and punishing them costs far more. You don't want the most expensive thing on your menu to be retaliation.

     

Related Stories

• A labor union retaliated against its own union employee. The irony writes itself.
• An angry conversation isn't retaliation. Yet.
• Hiring a waitress? Hire a server instead.

 

A proposed class action against Ashley Furniture alleges the company buried a noncompete in its handbook-style "Culture Guide" and didn't disclose the terms until after workers accepted their job offers.

This case raises an important question for employers to consider: can you enforce a noncompete that lives only in your handbook?

Probably not, and your own handbook is why.

Most handbooks say they are not a contract. We put that language there to defeat implied-contract claims. But it cuts both ways. If the handbook isn't a contract, it can't be the contract that restricts someone from working after they leave.

The lesson is that a separate, signed agreement changes the outcome. In ASI System Integration v. Mollenkopf, the handbook provision was unenforceable because of its disclaimer, but the employer survived dismissal because the employee had signed a separate stand-alone agreement.

There's a second problem. A handbook applies to everyone, so the noncompete does too: the receptionist, the stocker, and the sales director who holds your biggest accounts. Under the law of most states (including Ohio), a covenant must be no greater than needed to protect legitimate interests like trade secrets and customer goodwill. Most employees have none. In Elite Cleaning, for example, the court found the employer's interest weak as to an unskilled worker with no trade secrets. A blanket restriction invites the inference that the goal is controlling labor, not protecting the business.

Courts can narrow an overbroad covenant rather than void it, but that's a gamble, not a plan.

The fix is to use a stand-alone agreement, signed by the employee, tied to a legitimate interest and tailored to the role. Reserve it for employees who actually have something to protect, and use confidentiality and non-solicitation terms for everyone else. And keep it out of the handbook if you have hopes of enforcement.

If your noncompete is a paragraph on page 47 of a handbook that applies to every employee, you probably don't have one to enforce at all.

     

Related Stories

• Catching the thief red-handed isn't enough to win a trade secrets case
• Your hourly employee's second job is probably none of your business
• Why your noncompete agreement could become "Exhibit A" in a discrimination lawsuit.

 

Last week, the EEOC voted 2-1 to rescind its 2012 guidance on arrest and conviction records. If you're wondering whether criminal background checks are now a free-for-all for employers, I'm here to tell you they're not.

The EEOC's guidance was never the law. Title VII is. Disparate impact is written into the statute, and private plaintiffs don't need the EEOC's blessing to bring those claims. Disparate treatment (applying harsher screening standards to applicants because of race or national origin) is still illegal. And the Fair Credit Reporting Act, along with state and local fair-chance and ban-the-box laws, haven't gone anywhere.

What changes is agency enforcement. That's it. The reality is that the EEOC has largely moved away from disparate impact cases. Expect more right-to-sue letters and fewer EEOC lawsuits. But those claims won't disappear. They'll move into court, where you're the defendant.

Here's what the 2012 guidance said:

Arrests aren't convictions. An arrest alone doesn't prove anyone did anything wrong.

Convictions can justify an exclusion, but the offense needs to matter to the job. Embezzlement matters for a bookkeeper. It matters a lot less for a forklift operator.

Blanket bans are a red flag. Relevance depends on the nature and gravity of the offense, how much time has passed, and the nature of the job.

Individualized assessments matter. Give applicants an opportunity to explain their records before pulling an offer.

So what should employers do now that the EEOC has rescinded its guidance?

1. Keep your process. The guidance is gone, but its logic remains a sound way to defend against a Title VII disparate impact claim: job-related and consistent with business necessity.

2. Don't turn arrests into automatic rejections. Without more, an arrest record is a weak reason to reject an applicant.

3. Audit blanket exclusions. A "no felonies, ever" policy invites legal scrutiny unless a law requires it.

4. Apply your screens consistently. Inconsistent enforcement can become evidence of disparate treatment.

5. Document your reasons. If you reject someone because of a criminal record, write down the offense, how old it is, and why it matters to the job.

6. Follow the FCRA. When using third-party background reports, disclosure, authorization, and applicable pre-adverse and adverse action notice requirements still apply.

7. Check state and local law. Fair-chance rules vary by jurisdiction. Know yours before changing anything.

8. Train your hiring managers. Managers who improvise create risk. Give them a process and make sure they follow it.

Employers, the EEOC may have stepped back. Plaintiffs' lawyers haven't. Plan and act accordingly.

     

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• "Can I bring my dog to work?" Emotional support animals and the ADA

 

"Now I know what tear gas smells like" is not what a parent wants to hear from a child who is living 4,500 miles away, separated by an ocean. But it's also the reality of being in France in October 2026.

On the latest episode of The Norah and Dad Show, Norah shares what it's really like on the ground in France, living through the current wave of protests as a student. Yes, there is tear gas, but she says she feels no less safe than she would at a school in the U.S. She also says the coverage fixates on the looting—which may not even be coming from the protesters—because that's what gets attention.

Norah also recounts her 20-hour bus ride to Luxembourg to see Courtney Barnett in concert and getting lost in the Paris Metro during her layover. She also tells the story of buying a guitar off Facebook Marketplace from a sweet widower in his 70s in Aix-en-Provence. Here is a preview of that story.

 

You can hear all about on Apple Podcasts, Spotify, YouTube, Amazon Music, Overcast, in your browser, and everywhere else you get your podcasts.  

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

Company's DEI policy made White men 'second-class' candidates, judge rules — HR Dive

EEOC's Lawsuit Over a Women-Only Work Event Clears Its First Court Hurdle — The Employer Handbook Blog

Third Circuit: No FLSA "Overtime Gap Time" Claims — Lawffice Space

Can Opposing Counsel Reach Your Employees' Personal Phones? The Answer May Depend on Your Policies — EntertainHR

Compliance Is Not Prevention – Felix P. Nater, CSC, Nater Associates Ltd. — Nater Associates

Recruiters Don't Know What Hiring Managers Want. The Real Failure Starts Before the Job Is Posted — Evil HR Lady

Leaders Need to Grapple with Employee Ambivalence on AI — Harvard Business Review

What Will You Do With Your Employee's "Agents"? — Connecticut Employment Law Blog

Clio Says AI Is Boosting Billable Hours: Maybe I Was Wrong. Or Maybe Not. — Above the Law

3 workplace horrors that keep employment lawyers up at night — Employment & Labor Insider (Constangy)

my coworker goes overboard with grisly Halloween decorations — Ask a Manager

What Brews to Barns Could Mean for Your Brewery's Tax Bill — Brewers Association

Remember When: The Hooters Open Live Aid in America to the Dismay of the Event's Main Organizer in 1985 — American Songwriter

     

Related Stories

• WIRTW #815 (the 'vote' edition)
• WIRTW #814 (the 'barricade' edition)
• WIRTW #813 (the 'isn't it ironic' edition)

 

Your company's next employment plaintiff might not have a lawyer. 

But they have ChatGPT, unlimited discovery and motions to draft, and all the time in the world. You have attorneys who bill by the hour. 

That's a problem. 

Pro se employment filings jumped 56% in 2025, from 4,100 to 6,400. Lex Machina's 2026 report found unrepresented plaintiffs filed more than 16% of federal employment cases in 2025, up from under 10% in 2021. I expect that number to keep growing. 

AI is helping fuel the surge. A chatbot can draft a professional-looking complaint and churn out motions in minutes. It can also reinforce what an unrepresented plaintiff wants to believe about the strength and value of their case.

Take Donaldson v. Hiland Dairy. A magistrate judge recommended dismissing a former employee's Title VII claim as time-barred. He responded with 29 objections totaling 677 pages, much of it AI-generated answers to Google searches that had little to do with the limitations issue. The Texas federal court dismissed the case with prejudice.

By one estimate, defending a pro se case costs 10% to 15% more than a typical employment claim. Here's why.

A plaintiff's lawyer is a filter. They decline cases that aren't worth bringing, tell clients when a claim is weaker than they hoped, and put a realistic number on what it's worth. Lex Machina found that pro se plaintiffs frequently get knocked out on procedural defenses like failure to exhaust administrative remedies or the statute of limitations. A lawyer would likely have caught those problems before anything was filed.

Then there's the math. The plaintiff isn't paying a lawyer. You are. They can generate another motion in mere minutes. Your attorneys spend billable hours figuring out how to respond.

And the usual exit ramp is harder to find. Pro se cases settle far less often than represented ones, frequently because plaintiffs have unrealistic expectations about damages, and nobody has reset them. Among cases decided on the merits, these plaintiffs lose at better than 40 to 1. You'll probably win. You'll just pay for the whole trip.

So what do you do? Treat it as a real lawsuit. Courts still read pro se filings generously, and a sloppy response is how a weak case gets a second life. Raise exhaustion and limitations defenses early, and push for a scheduling order and discovery limits before the motions pile up.

Then tell your CFO to budget more, not less. And if those AI-generated filings cross the line into frivolous, talk to your lawyer about whether Rule 11 sanctions could recover some of the fees spent responding.

Pro se used to mean cheap. Not anymore.