Two days.

That's the entire gap between John Shoemaker asking McKesson Corp. for FMLA leave and McKesson telling him he was fired. 

A federal judge just said that two-day gap alone survives summary judgment.

Shoemaker was a Senior Director overseeing McKesson's contact center. In the spring of 2024, McKesson started planning a reorg. The company says that it locked in the decision to eliminate Shoemaker's position by December 2024, at least a month prior to anyone at the company knowing that he was even thinking about taking paternity leave. Typically, that's enough. Business decisions made for business reasons aren't retaliation just because a protected request comes along later.

But then it got messy. In January 2025, Shoemaker started quietly talking to HR about paternity leave. On March 3, he formally told his boss he'd be taking it that spring. McKesson says that in early March it picked April 11 as Shoemaker's termination date, but couldn't pin down exactly when, or produce anything showing that it did so before March 3.

Then, on April 9, Shoemaker formally requested FMLA leave. Two days later McKesson fired him.

Shoemaker was the only employee terminated on April 11. Everyone else caught in the reorg wasn't let go until July.

That's not just bad timing. That's a company that can tell you what it decided, but not when. And in a case like this one, the "when" is the whole ballgame.

Retaliation claims still require more than pure timing to survive summary judgment, and temporal proximity alone doesn't prove pretext. But in this case, Shoemaker had something more. He said his work didn't stop when he left. A coworker backed him up, testifying his job functions "did not cease." And unlike everyone else swept up in the RIF, he alone got cut two days after invoking the FMLA and months before the rest.

The court didn't need much more than that. Between the near-immediate proximity and the factual fight over why only Shoemaker's termination was accelerated, summary judgment was denied.

So what should you take away from this case?

1. Contemporaneous documentation matters. If your defense is "we already decided to fire this person before the protected activity," you need a document with a date on it, not a witness remembering "sometime in early March." If it's not on paper, it didn't happen.

2. If you jump someone ahead in line, know why. When one employee gets cut days after protected activity and everyone else in the same RIF survives another three months, you have to be able to explain that gap.

3. The line for what qualifies as a adverse action is a thin one. You don't get credit for "we were going to fire him anyway" if the record shows you fired him sooner because he took leave. Acceleration counts. 

Employers, plan your RIF all you want. Just make sure you can back up not just why a decision was made, but also when.

Big firm ability. Small firm agility.

That's Wickens Herzer Panza in six words. Chambers just backed it up three times over.

Wickens Herzer Panza picked up three rankings in the 2027 Chambers Ohio Spotlight Guide: Labor & Employment (the group I lead), Corporate/Commercial, and Litigation: General Commercial.

Only two other firms in all of Ohio matched that. Nobody beat it.

I don't say that to brag. Okay, actually I do say that to brag. But I also say it because of what a Chambers ranking actually means.

Chambers doesn't work like most legal directories. You don't buy your way onto the list, and you don't get there by submitting a nice write-up about yourself. Researchers call your clients. They call opposing counsel. They ask what it was actually like to work with you, not what your marketing department says about you. If a firm shows up in Chambers, somebody who isn't on that firm's payroll vouched for it.

That's also the reason the Spotlight Guide exists at all. The main Chambers USA Guide skews toward big firms with national footprints — the ones already showing up on every "top law firm" list. Spotlight was built for firms under 75 attorneys doing serious work without that scale, so a business looking for good counsel has somewhere to look besides the Am Law 100.

That's who we are in a nutshell. Not the biggest firm in the room, but one that goes toe-to-toe with the biggest firms in the courtroom and the boardroom, just not on the bill.

The Labor & Employment ranking means the most to me personally. But all three matter, because they're really saying the same thing about three different parts of my firm: our work holds up.

I am incredibly proud of where I work, with whom I work, and the work we do for our clients.

 

"What may be awesome punishment for an impecunious individual defendant may be wholly insufficient to influence the behavior of a prosperous corporation."

That's the 3rd Circuit, not me. And it's the whole ballgame in Holmes v. American HomePatient.

Here's what earned that line. Patricia Holmes was the only Black employee at AHOM's Penn State office. Her supervisor asked her, "what do you think about the N-word?" then Googled it—misspelling it "Niger"—while a coworker sounded it out for him like a grade-schooler. Both laughed. Weeks later, during a mask fit test that required a hood over Holmes's head, the same supervisor had a coworker film it, then joked it was "ironic to see a white woman putting a white hood on a black woman's head." He laughed in her face.

When Holmes reported it, HR investigated without ever interviewing the one coworker who'd witnessed the slur, then concluded McCoy hadn't said it himself and assigned him to counsel Holmes—the woman he'd allegedly called it—on workplace conduct. His only discipline, a written warning, wasn't for his own conduct. It was for failing to supervise the coworker who'd sounded it out.

A jury awarded $500,000 in compensatory damages and $20 million in punitives. The district court found the punitive award unconstitutional and cut it to $1 million—a 2:1 ratio. On appeal, the 3rd Circuit found AHOM's conduct "exceedingly reprehensible," set the ratio at 4:1, and doubled the punitive award to $2 million.

The reprehensibility call is spot on. A supervisor using slurs, a sham investigation, a company that let the harasser counsel the victim—that's about as bad as facts get.

But do the math. AHOM does more than half a billion dollars a year in revenue. Two million dollars is four-tenths of one percent of that. It's not "awesome punishment." It's a line item.

I've spent my career on management's side of cases like this one, and I'm not saying this to hand the plaintiffs' bar a talking point. A lawyer who tells clients a ratio-capped award is real deterrence isn't doing them any favors. Under-deterrence doesn't just shortchange the plaintiff; it teaches the next AHOM the fine is affordable, and the misconduct excusable. 

That's not a flaw in this opinion. It's structural. Due process caps the ratio in the single digits regardless of size, and the bigger the company, the less any dollar figure tethered to compensatory damages can sting. Courts know it, they just can't fix it. The 3rd Circuit said as much, and still landed on 4:1.

You might not be wrong to think a $2 million verdict isn't material.

What should scare you is a supervisor who treats slurs as banter, an HR department that "resolves" a complaint by putting the accuser back under the accused's supervision, and a jury that reached for $20 million before any judge touched the number.

Ratios protect balance sheets. They don't protect you from twelve people who've had enough—or the reputational damage a verdict like this leaves behind.

"The inherent danger in well-timed increases in benefits is the suggestion of a fist inside the velvet glove."

That's the 5th Circuit, describing what Starbucks did to its Buffalo stores once a union showed up. The court's recent opinion in Starbucks Corp. v. NLRB reads like a playbook of exactly what not to do during an organizing campaign.

Here's what happened. In August 2021, employees at Starbucks's Buffalo stores posted an open letter to the CEO announcing a union drive. Within a week, Starbucks flew in a team of senior executives who had never set foot in a Buffalo store before, and parachuted in district managers from other regions to serve as "support managers" — something it had never done there. The day after that letter went public, Starbucks fired the district manager overseeing two of the affected stores.

Repairs that normally took 12 to 18 months of advance notice suddenly got done in weeks. Seniority pay expanded. A national wage increase got moved up. Managers started wearing headsets to monitor conversations they'd never bothered monitoring before. And after the union won at eight stores but narrowly lost at a ninth, Starbucks kept enforcing rules unevenly, then fired six employees for conduct it had tolerated from everyone else for years.

All told, the Board found 125 violations across 60 different ways of breaking the law, and the 5th Circuit affirmed most of them.

The legal rule is simple. A benefit granted, or a rule enforced, isn't illegal on its own. Timed to a union campaign, however, with no explanation for why it never happened before, it's evidence of exactly what an employer isn't allowed to say out loud — "Vote no, or else!"

Here's what Starbucks should have done differently, and you should, too, if a union comes knocking on your door.

1. Fix problems on your normal schedule. If your stores had "widespread facilities issues" for years, suddenly finding the money and the urgency the week cards start circulating doesn't read as generosity. It reads as a bribe.

2. Avoid conferring unexpected benefits. Speeding up a wage increase, expanding seniority pay, and adding hours look generous. Benefits timed to a union campaign, with no explanation for why they couldn't have waited, looks like a quid pro quo for a "no" vote.

3. Don't flood the zone with strangers. Sending in executives and out-of-town managers who've never been there before, the moment organizing starts, creates the impression of surveillance even if you call it operational support.

4. Discipline consistently, or don't discipline at all. If tardiness, dress code, and other violations were tolerated for years and suddenly become fireable offenses the same month a petition gets filed, that inconsistency is the union's best exhibit.

The velvet may fool some of the organizing employees. It never, however, fools the Board.

Boeing built its overtime checks on base hourly rate alone. Nothing else. Not the bonus. Not the incentive pay. Just the base rate, run through a straight 1.5x multiplier.

That's the allegation, at least, in a proposed class action Boeing just removed to federal court. Plaintiff Jerry Belmonte Llarenas, a former quality assurance inspector, says the company's Aerospace Incentive Plan bonuses should have been folded into his "regular rate of pay" before Boeing calculated overtime. They weren't.

The numbers are specific. In a February 2024 pay period, for example, Belmonte Llarenas alleges that he received an incentive bonus of just under $5,000. That same period, he worked 18 hours of overtime paid at a premium multiplier of his base rate. No bonus in the math anywhere.

But if the bonus was non-discretionary, it absolutely should have been included in the regular rate of pay for overtime-calculation purposes.

If you pay incentive or bonus comp to your employees, here is a handy FAQ that explains all of the ins and out of legally paying bonus and incentive comp to your non-exempt employees without running afoul of the FLSA.

1. What is the "regular rate of pay," and why isn't it just the hourly rate?
Under the FLSA, overtime has to be paid at 1.5x the employee's "regular rate," and that rate is broader than the number on the offer letter. It includes nearly all compensation for the workweek — base pay, shift differentials, commissions, and most bonuses — divided by hours worked. Employers who overtime-check only the base hourly rate are almost always underpaying.

2. Are all bonuses included in the regular rate?
No, and this is where the whole case turns. The FLSA splits bonuses into two buckets: discretionary and nondiscretionary. Discretionary bonuses get excluded from the regular rate. Nondiscretionary ones don't.

3. What actually makes a bonus "discretionary"?
Two things have to both be true. The employer has to retain discretion over both whether to pay it and how much, and that discretion has to last until at or near the end of the period it covers. A holiday bonus you decide to hand out on a whim in December, amount unannounced in advance, is discretionary. A bonus promised up front, tied to preset performance metrics or attendance targets, is not — even if the employer calls it "discretionary" in the plan document. Courts look at how the bonus actually works, not what the plan calls itself.

4. So what kind of bonus lands in the nondiscretionary column?
Production bonuses. Attendance bonuses. Quality or safety incentive bonuses. Anything promised to employees in advance to encourage them to work more efficiently, stay longer, or hit a target. That's exactly what Belmonte Llarenas alleges about Boeing's incentive plan — eligibility and performance measures "established in advance," not doled out at Boeing's sole discretion at the end of the period. If that's accurate, the bonus was nondiscretionary from day one, and it belonged in the regular rate.

5. If a bonus is nondiscretionary, how do you spread it across the pay periods it covers?
This is the part employers usually get wrong the most, more than the classification question. A nondiscretionary bonus covering multiple workweeks has to be allocated back across those workweeks — you can't just dump the whole thing into the pay period where the check lands. If the bonus can reasonably be attributed to specific weeks, do that. If it can't be broken out that precisely, DOL regulations let you allocate it equally across the workweeks in the bonus period as a reasonable proxy. Either way, you then recompute the regular rate for each of those workweeks, refigure the overtime owed, and pay the difference. One lump-sum bonus check can trigger a whole quarter, or a whole year, of overtime corrections. 

6. What should employers actually do about this?
Pull every bonus, incentive, and award program you run and ask one question: is it promised in advance based on a preset formula, or is it a genuine surprise decided at the end? If it's the former, it's nondiscretionary, and your payroll system needs to be recalculating overtime every time one of those bonuses pays out. If your system currently runs overtime off base rate alone and treats every bonus as an afterthought, you don't have a compliance risk. You have two lawsuits already proving it's a real one.

WIRTW #809 (the 'senioritis' edition) Pay attention to personal liability for FLSA violations The EEOC has lost the plot The 8th nominee for the Worst Employer of 2026 is … The Passport Pilferer Hiring isn't a numbers game. It's a standards game.