Earlier this week I appeared on a webinar hosted by SelectSoftware Reviews and sponsored by Insperity, on protecting your business through the employee lifecycle. We covered hiring, onboarding, performance management, and termination. One theme kept ...
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WIRTW #808 (the 'document, document, document' edition)

Earlier this week I appeared on a webinar hosted by SelectSoftware Reviews and sponsored by Insperity, on protecting your business through the employee lifecycle. We covered hiring, onboarding, performance management, and termination.

One theme kept surfacing, hour after hour, question after question.

Documentation.


By the end of the hour, it wasn't just a talking point. It was the takeaway.

If it's not written down, it didn't happen.

I don't mean that as a cute aphorism. I mean it as a description of how litigation actually works. Judges and juries don't care what you remember. They don't care what you meant to do, what you're sure you said, or what "everyone knew" about an employee's performance. They care about what you can show them.

Testimony is cheap. Anyone can take the stand and swear that Employee X was warned three times before termination. But without a written warning, a performance improvement plan, an email, text, or Slack message, a note in the file — something — that testimony is just a lawyer's client saying what a lawyer's client needs to say. Opposing counsel knows it. The jury knows it. And your credibility takes the hit.

This is Personnel File 101, but employers still get it wrong constantly:
  • Managers give verbal counseling and never memorialize it.
  • Performance issues live in a manager's head, not in a review.
  • Terminations get built on a paper trail assembled after the decision, not before it.

That last one is its own special problem. Contemporaneous documentation, created in the ordinary course of business at or near the time of the event, is powerful evidence. Documentation manufactured after an EEOC charge lands or a lawsuit gets filed looks exactly like what it is — and plaintiffs' lawyers love pointing that out to a jury.

Employers, train your managers and supervisors to build the habit of writing it down when it happens, not when you need it. The write-up doesn't need to be a legal masterpiece. It just needs to exist.

Because in a courtroom, the absence of a document isn't neutral. It's evidence too — just not the kind you want.

You can watch the entire webinar here.


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

Five Employment Law Lessons from Dolly Parton's "9 to 5" — via California Employment Law


The Law Firm Scandal Every Manager Needs to Pay Attention to Right Now — via Improve Your HR by Suzanne Lucas, the Evil HR Lady

How to Spot a Toxic Leader—Before Hiring Them — via Harvard Business Review





99.9% of Germs Eliminated. Also Her ADA Claims. — via Eric Meyer's Employer Handbook Blog


Why employers shouldn't mine employees' social media accounts

A federal judge just told Southwest Airlines what it can't look at on Facebook.

The court entered a permanent injunction barring Southwest from "proactively searching for, relying on, or using" Charlene Carter's religious statements — including her posts about abortion — in any future discipline, discharge, or other adverse action.

Here's the backstory. Southwest fired Carter after she sent her union president graphic anti-abortion images and video. She sued both Southwest and the union under Title VII for religious discrimination. In 2022, a jury awarded her $5 million (later reduced to $800,000), finding that employer and union discriminated and retaliated against her for her religious views. The 5th Circuit sent the trial court's injunction back down as overbroad. This is the judge's narrowed version.

Employers think that Title VII protects only their conduct, not their curiosity. It doesn't work that way.

Employees generally have no 1st Amendment rights against a private employer policing their off-duty speech. I've written that sentence in posts more times than I can count. But Title VII doesn't ask whether an employee had a free speech right. It asks whether a protected characteristic — here, religion — tainted the employer's motive for taking action.

Seeking out Carter's religious posts and then using them against her isn't a speech violation. It's evidence of discriminatory intent under Title VII. That's the entire ballgame, and it's why the injunction targets the searching and relying on, not just the disciplining.

Employers, here are your cues from this injunction:

1. Don't go looking for an employee's posts about religion, health information or disabilities, or any other protected characteristic to build a disciplinary file.

2. If a post lands in your lap unsolicited, document why you're acting (or not acting) independent of the protected content.

3. A pattern of "we only checked her page" is Exhibit A in every failure-to-treat-similarly-situated-employees argument your plaintiff's counsel will make. It will also make that much harder to argue to a judge or jury that you didn't rely on the information that you found.

Employees don't have 1st Amendment free speech rights to enforce against you. But you still need a legitimate, non-discriminatory reason for looking — and then for using what you find.

This is why DEI matters

"Do not touch my new driver." That's the tagline from a misogynistic ad that Good Good Golf and Callaway Golf posted — and then, only after the backlash, deleted.

Someone pitched the idea of man shoving a woman to the ground and growling that line at her. Someone shot it and edited it. Someone approved it, scheduled it, and posted it to all of the company's channels. And not one person in that chain said, "Wait — this is wrong."

This was a company's male co-founder physically and abhorrently overpowering a female — knocking her to the ground on camera, then standing over her as she looked up at him and he delivered the line like a threat.

That's not a rogue mistake. That's a room with no one there to catch it and call it out.

Good Good was built by a tight-knit group of young men who turned a YouTube golf channel into a $45 million golf apparel and online media company. That's a real accomplishment. It's also, by all public appearances, a leadership bench with very little demographic range — and that's exactly the kind of environment where an ad like this gets made, approved, and shipped without anyone blinking.

DEI critics love to frame diversity as a box-checking exercise, a line item for optics, something HR does to satisfy an audit. It's not. It's a risk-management function, full stop. A workplace that includes different genders, races, and life experiences at the decision-making table has more people positioned to say "this doesn't feel right" before the content goes live — not after Callaway and the PGA Tour are issuing statements putting daylight between themselves and your brand.

A team that's all one demographic doesn't just risk optics problems. It risks blind spots nobody inside the room is positioned to see, because everyone in the room learned to see the world the same way. 

When every person greenlighting an ad shares the same background, the same sense of humor, and the same instincts about what's "just a bit," you lose your early-warning system entirely. Nobody's left to say the thing that's obvious to everyone watching from the outside: that a man aggressively shoving a woman to the ground on camera isn't edgy content, isn't a harmless bit, isn't something a "welcoming, inclusive" brand should be caught anywhere near. It's just wrong.

This is why DEI matters — not as messaging, not as a mission statement bullet on a careers page, but as an actual, functioning control against exactly this kind of failure.

A diverse leadership team isn't a nice-to-have for your brand or a talking point for your next funding pitch. It's a check on groupthink before groupthink becomes a headline, a sponsor statement, and a case study in what happens when nobody in the building looks, thinks, or lives differently than the guy who came up with the idea.

Good Good and Callaway deleted the ad. It only took a few minutes.

Deleting it doesn't answer the harder question: who was in the room, and why didn't anyone stop it?

When 'performance problems' are actually a disability

Brian Lee says his employer relabeled his ADHD symptoms as "performance deficiencies" and terminated him a result. The employer, Red Hat, says it was simply managing a struggling employee. A federal court is about to sort out who's right.

Lee, a senior software engineer, went to work for Red Hat because of its reputation as neurodivergent-friendly and inclusive. He disclosed his ADHD to his supervisor shortly after being hired in 2022. In October 2024, he received a written warning for collaboration, communication, and timeliness issues. He was later pulled off a major project. He also learned his "evolving performer" rating made him ineligible for a bonus he says he wasn't warned about.

He complained internally and to the EEOC. Red Hat investigated and found nothing. Then things got worse. In April 2025, the company granted some accommodations — dedicated focus time, remote work — but denied others, including extra time on tasks. In July, he was fired for not meeting the goals of his performance improvement plan.

Four claims followed in Lee's lawsuit: failure to accommodate, disability discrimination, retaliation, and wrongful discharge.

These are allegations. Red Hat hasn't even answered yet, and nothing has been adjudicated. But the fact pattern — an employee discloses ADHD, performance issues surface later, and now everyone is fighting about which one caused the other — is instructive regardless of how this case comes out.

Disclosure of a disability doesn't freeze an employer's ability to manage performance. It does, however, trigger obligations that should not be skipped.

1. The interactive process is not optional once accommodation is requested. Grant what you can support with evidence; if you deny a request, document why it's not reasonable or why it doesn't address the actual limitation — not just because it's inconvenient.

2. Separate the disability from the deficiency. If an employee's ADHD manifests as missed deadlines or communication gaps, address the underlying limitation through accommodation before you discipline the symptom.

3. Warn before you attach consequences. If a performance rating carries hidden financial teeth — like bonus ineligibility — the employee needs to know that before the rating, not after.

4. PIPs need teeth and clarity. "Immediate and sustained improvement" is a vague standard that plaintiffs' counsel will happily pick apart. Define the metric, not the adjective.

None of this means you can't hold an employee with ADHD to the same bar as everyone else. In fact, you should do exactly that, as lowering standards is its own trap. But you have to get to that bar honestly and through a documented interactive process, not by relabeling a disability as an attitude or performance problem.

WIRTW #807 (the 'one cent' edition)

"After 9/15/26, The Columbia House will no longer be accepting new orders." So reads the banner atop the mail-order retailer's website.

Reaction no. 1: Columbia House still exists?!?!?! 😮

Reaction no. 2: Wow, that's really sad. 😢

If you're of a certain age (and I am most definitely that age), Columbia House was a rite of musical passage.

For the youngsters… Before Spotify. Before Apple Music. Before you could summon virtually any song ever recorded by tapping a piece of glass in your pocket, there was Columbia House.

And Columbia House had a deal for you.

Pick 8 CDs! Or 10! Or 12! And get them for a penny!

A PENNY! (And let's not forget that pennies don't even exist anymore.)

To a music-obsessed teenager, this seemed like the greatest bargain in the history of capitalism. (The fine print about buying additional albums at full club prices was Future You's problem.)

You'd painstakingly choose your albums, mail the order form, and wait. Then, one glorious afternoon, a cardboard box would arrive containing an instant music collection.

It was magical.

It was also a spectacular business. Columbia Records launched its record club in 1955. By the mid-1990s, Columbia House reportedly had 16 million members and generated as much as $1.4 billion in annual revenue.

Then the internet happened.
Downloading happened.
Streaming happened.

Columbia House ended its music club in 2009, but somehow survived as a niche online seller. On September 15, it will stop accepting new orders after more than 70 years.

There's an obvious business lesson here about technological disruption. But that's not why its closing makes me sad.

Columbia House belonged to an era when music required effort.

You saved money for an album. You went to a record store. You flipped through racks. You studied liner notes. You made mixtapes. You waited for your favorite song to come on the radio so you could record it.

Or you circled 12 tiny album covers on a Columbia House order form and checked the mailbox every afternoon for weeks.

Today, nearly the entire history of recorded music is available on my phone. I'm not going to pretend I'd rather go back to waiting six weeks for a box of CDs to show up in the mail.

But there was something undeniably fun about picking the albums, sending in the card, and waiting for that box to arrive. Then came the real challenge: remembering to send back the "no thanks" card before Columbia House picked your next albums for you.

So, yes, I'm amazed Columbia House was somehow still around in 2026. And I'm sad to see it go. Not because I need somewhere to buy CDs by mail, but because its demise reminds me that I'm old enough to wax nostalgic about a mail-order music club.

Rest in peace, Columbia House. You were the best penny I ever spent.


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




How to Respond to the Coming AI Cost Shock — via Harvard Business Review


A Manager Rejected a Top Candidate Over One Tool. It Backfired Immediately — via Improve Your HR by Suzanne Lucas, the Evil HR Lady



Can Employers Win Summary Judgment In State Court? Yes, but… — via Dan Schwartz's Connecticut Employment Law Blog

5th Circuit Rules Employee With 27 Work Deficiencies Still Makes It to Jury — via EntertainHR

Six wage and hour compliance risks employers can't afford to ignore — via Employment & Labor Insider


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