Things My Daughter Graciously (and probably inaccurately) Claims that She Learned from Her Badger (me).

My birthday is approaching and my daughter composed these things that she claims to have learned from me. It’s been a rough week and she wanted to encourage me. Needless to say, she succeeded.

I pray that I did impart these values because I have worked to achieve them in my life. However, I am a veteran parent and I know better than to claim to have contributed to my children’ successes or to have caused their problems. At soon-to-be 59 years of age, my legacy is about all that matters to me. If you are like me, you feel as if your life experience might best serve as a warning to others of things NOT to do.

So I’ll share my daughter’s observations – and consider them in light of her young legacy of nationally ranked distance runner – tough former fighter – insanely high academic achievements in multiple degrees at different schools – Renaissance personality – and all camouflaged  in a petite little size.

  1. Laugh often and genuinely.
  2. Embrace your nerdiness, and find other nerds to marinate in the nerdly juice with you. Nerd bonding is the most exquisite kind of bonding. 🙂
  3. Fight for the people (and pups) and causes you love, even when you’re fighting alone.
  4. Look for nuance in all situations, even when it hurts to do so.
  5. Be more generous than some people think would be “sufficient” with your resources and your time.
  6. Never miss the chance to hug someone you love.
  7. Be willing to answer the phone at 3 am when it’s someone you love who is calling.
  8. When sh*t hits the fan, kick into warrior mode and stay there til said sh*t is no longer on your ceiling fan…even if it takes a while! No one likes sh*tty fans, after all. 🙂
  9. You can never have too many books.
  10. Don’t be afraid to veer away from your schedule. The best adventures and memories are most often spontaneous.
  11. Having ADD is actually a benefit: it makes you more creative!
  12. Dress in your power clothing when it’s time to kick a$$ and take names.
  13. Going to counseling and taking medicine is a sign of courage and strength, not weakness.
  14. The outdoors are a marvelous therapist.
  15. Dogs aren’t really dogs: they’re furry angel-children, and should be spoiled as such!
  16. Introverts can still be awesome public speakers and teachers.
  17. Follow your career passion, even if it doesn’t pay well and even if it isn’t the most popular choice.
  18. Courage is being scared, but still doing the right thing, even though it scares you!
  19. Be outrageously kind to service industry folks, both with words, actions, and through being “mufaka” (not sure how to spell that one, but you know what I mean).
  20. Take the people you love’s concerns and drama seriously enough to let them vent to you a bit, even if you don’t quite understand what they’re upset about!
  21. Give yourself the introvert time you need to recharge, and don’t feel badly about it.
  22. Being strong doesn’t just have to mean having big muscles: it means an inner strength and ferocity of spirit.
  23. Try to look for the good in other people, even when you really, really, really dislike them!
  24. Sometimes, waiting til the last minute is best, because then you work super, super fast!
  25. It’s ok to be a good writer but to not enjoy writing!
  26. Be a Labrador for those that you love, and a PO’d Doberman against those who seek to wrong them.
  27. Life is too short to take it seriously all the time. Be goofy; smile; and the word will eventually smile back at you, if even just for one brilliant moment.
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Are Michelin Starred and James Beard-quality Restaurants Prone to OSHA Citations?

I’m spoiled. I’ve sought out great restaurants in scores of US cities, great meat-and-threes in rural counties, hole-in-the-wall BBQ joints, and starred restaurants in Europe, Africa and the Middle East.

I am also an OSHA-nerd, and I find myself subconsciously studying everyplace I go for OSHA violations and even what I’d do if there were a fire, mass shooting, or zombie attack. Recently I noticed the same OSHA violations at several accomplished restaurants and upscale hotel/resort eateries.

These violations are not surprising. Nor are they indicative of sloppiness in other areas, as they usually are in most business settings. The truth is that a restaurant presents few hazards compared to construction or a refinery, and it’s not surprising that management could be oblivious to certain low hanging OSHA violations whose impact on safety might not be immediately obvious. Most of these restaurants are alert to slip-and-fall risks, burn and scald situations, and bad lifting habits.

Low Hanging Fruit OSHA Violations are Expensive.

Let’s analogize to Dollar Tree and other retail stores. These stores are not particularly hazardous environments, but they have paid hundreds of thousands of dollars in OSHA penalties because they have many locations and the same recurrent OSHA violations become expensive Repeat Citations when again found at other locations for a five year period. Dollar Tree’s problems arose from common retail problems associated with having ill planned storage areas and multiple deliveries each week. OSHA found blocked exits, fire extinguishers and electric panels. They were also cited for pesky electrical issues such as extension cords run over ceiling joists to run PCs, when permanent electrical connections should have been installed. Any restaurant concept or chain could have the same experience, especially if a union or other group were harassing the company.

Consider these OSHA Press Releases ….

  • Illinois Dollar Tree stores endanger workers with blocked exits, stacked boxes – Retail chain faces similar citations across the nation, $121K in penalties added to total.
  • Missoula Dollar Tree $217,000 for willfully putting Missoula workers at risk.
  • Delaware Dollar General Store ignores dangers of blocked emergency exits and other serious hazards.
  • Massachusetts Store receives $177,800 in OSHA penalties.
  • Stores receive $121,000, $116,200, $143,000 and $121,000 penalties.

An employer need not be a foundry to get hit with big OSHA penalties. Nor do they need to be evil or disinterested in employee safety. I have no reason to think that these employers were bad employers.

Common Restaurant OSHA Violation.

In addition to the earlier mentioned low hanging fruit violations, consider these common issues:

  1. If your restaurant has fire extinguishers, you must either provide Annual fire extinguisher training for all employees, or develop an Emergency Action Plan (EAP) which includes a “Fight or Flight” policy in which you designate some employees to flee and others to receive the simple fire extinguisher training to fight incipient stage fires – or you could take the impractical step of telling everyone to flee even the simple grease fire.
  2. Maintain and enforce effective ”documented” procedures to prevent slippery floors and trip hazards, including nonskid shoes, accountability for controlling kitchen spills, and importantly, the proper floor cleaning materials for the janitorial crew.
  3. Documented job-specific Hazard Communication training, including on-the-job instruction, especially for employees working with commercial dishwashing machines.
  4. Inadequately marked exits, partially blocked exits, or doors that aren’t exits, but look like exits – and are not marked as “Not an Exit.”
  5. Exit doors padlocked inside to prevent pilferage or assure security late at night.
  6. Holes in electric cabinets, emergency lights or fixtures, or unlabeled switches in electrical cabinets.
  7. No consideration of Bloodborne Pathogens issues for employees who may be exposed to vomiting customers.

I hope these reminders are helpful, and if you are one of the fine restaurants that I frequent, or the genius who invented Chick-fil-a chicken minis, thanks for your artistry and hospitality.



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Wow. Newly Released 2017 Drug Test Results are Scary and Employers Need to Act.

It’s deja vu all over again.

Yogi Berra

Since 1988, Quest Diagnostics’ Annual Drug Testing Index has provided the nation’s most accurate information on changes in employee drug use. You should use this data to determine if testing is necessary, what drugs to test for, and the drugs to educate employees about.

I quoted the sage, Yogi Berra because we seem to be revisiting past trends.

Reason 1 – until the last few years, workplace drug issues had fallen off of most employers’’ screens because the positive test rate fell from a whopping 13.6% in 1988 to 3.5% in 2012 – 20+ years of decline. In 2013, they began to rise again, led by a staggeringly fast rise in opiates positivity.

Reason 2 – not only have the 30+ state laws legalizing medical and/or recreational marijuana created practical challenges, new state laws and aggressive Northeastern states’ courts are attacking the until-recently protected right of employers everywhere to require employees to report to work free from the presence of unlawful drugs based upon the Federal criminal Schedule, which treats marijuana as a Schedule-1 illegal drug. So yep, workplace drug issues are back.

Reason 3 – cocaine use is vigorously rising in some areas … really?! Are we going to have to download and watch old Miami Vice episodes?

From Quest Diagnostic’s May 8, 2018 release of its analysis of 10,000,000 2017 drug test results.

Prescription opiate positivity rate drops by double digits, while cocaine rises by double digits in certain states Methamphetamine positivity skyrockets in Midwestern and Southern United States Marijuana positivity rises considerably in states that recently enacted recreational use statutes, finds national analysis by Quest Diagnostics.

May 8, 2018 Quest Diagnostics Annual Drug Testing Index.

 Rate for Cocaine increased for the 5th consecutive year.

Double-digit year-over-year increases in at least four of the five past years were seen in:

  • Nebraska (91% increase between 2016 and 2017),
  • Idaho (88% increase),
  • Washington (31%),
  • Nevada (25%),
  • Maryland (22% increase), and
  • Wisconsin (13%)

Structure your drug testing and education efforts in these states to recognize that coke is back.

Between 2013 and 2017, methamphetamine positivity skyrocketed:

  • 167% in the East North Central division of the Midwest (Illinois, Indiana, Michigan, Ohio, Wisconsin);
  • 160% in the East South Central division of the South (Alabama, Kentucky, Mississippi, Tennessee);
  • 150% in the Middle Atlantic division of the Northeast (New Jersey, New York, Pennsylvania); and
  • 140% in the South Atlantic division of the South (Delaware, District of Columbia, Florida, Georgia, Maryland, North Carolina, South Carolina, Virginia, West Virginia).

Prescription opiates continue decline in workforce testing data.

This is great progress, but the battle has barely started.

“The depth of our large-scale analysis supports the possibility that efforts by policymakers, employers, and the medical community to decrease the availability of opioid prescriptions and curtail the opioid crisis is working to reduce their use, at least among the working public,”

Kim Samano, PhD scientific director, Quest Diagnostics.

Before we lose interest in what many of us think is the worst US Drug problem and potentially devastating for the economy, let’s humanize the statistics.

More Americans die of overdoses than in car crashes and gun homicides combined. In 2016, 64,000 people died due to drug abuse.

  • 23% related to prescription pain relievers.
  • 24% related to heroin.
  • 31% related to non-methadone, synthetic opioids (e.g., fentanyl)

In 2016, over 11.8 million people used heroin or misused prescription opioid pain relievers.

  • In 2015, 919,400 people 25 – 54 years old were not in labor force due to opioids.
  • From 1999-2015, the decline in labor force participation cumulatively cost economy 12.1 billion work hours.
  • During that period, the reduction in work hours slowed real annual economic growth rate by 0.2%, which translates to around $702.1 billion in real output.

American Action Forum (AAF), “The Labor Force And Output Consequences Of The Opioid Crisis” (March 2018).

We must enhance wellness and other efforts to equip employees to deal with these problems in their families.

Costs of Drug Using Employees Generally.

According to one reputable recent analysis, Drug-using employees are:

  • 2.2 times more likely to request early dismissal or time off,
  • 2.5 times more likely to have absences of eight days or more,
  • 3 times more likely to be late for work,
  • 3.6 times more likely to be involved in a workplace accident, and
  • 5 times more likely to file a workers’ compensation claim.

Common sense and experience tells you that these estimates are probably accurate, especially with regard to accidents and workers comp claims.

But should most employers cease drug testing and/or relax their stance on marijuana?

For most employers the answer is no. The rise in non-marijuana use is devastating for American families and the economy. Employer enforcement is very much essential, as well as:

  • Reexamination of Rehab, EAP, and Wellness efforts.
  • New “Workplace Drug Education” and training beyond the tired old 1990s “Drugs Don’t Work” efforts.
  • Employee involvement and intervention, similar to efforts to reduce workplace violence, bullying, and harassment.
  • Education and assistance for employees whose families are dealing with drug issues, such as for children.

And Yet, the Societal Trend is to Downplay Drug Usage, at least for Marijuana.

Many of us do not much care what people do in the privacy of their home so long as it does not harm society. In part, because of the new state Marijuana laws and anti-employer court decisions in a few, mainly Northeastern States, one large public retailer announced that they would no longer test applicants. Many high tech employers have lost interest in testing, perhaps because they do not want to lose good high performing employees whose use if after hours (Don’t Ask-Don’t Tell for the drug world). I get it.

But should most employers cease drug testing and/or relax their stance on marijuana?

For most employers the answer is no. The rise in non-marijuana use is devastating for American families and the economy. Employer enforcement is very much essential, as well as:

Marijuana’s active elements can affect judgment and higher levels of reflexes days after use, and show no visible signs. I understand the reasons for people to use medical marijuana, but such use can present serious dangers and harm performance … and unlike alcohol impairment is difficult to catch. Drug testing seems essential.

But … and this is a big “but” … employers must review those old drug policies, monitor state laws, and contact their attorney. The answers are neither black and white nor simple. The Legal pitfalls are great. See January 4 & 5, 2018 Posts, Over 30 States have Medical and/or recreational Marijuana Laws.


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Wine, Women and Song … Well Actually … Wine, Restaurants and Books.

Yep. It’s time for another Post having nothing to do with employment law, President Trump, and dire things. Folks seemed to enjoy my last escapist post … and I received quite a few comments and, even better, suggested other restaurants and wine and book stores.

10 Essential Reds.

Jeff Trump of the Brooklyn Café recently sent me a list of 10 Essential Reds he recommended for a person with my tastes. I was impressed and have pasted the list below:

Item_Desc Vintage
MARIETTA ARME Bordeaux Blend  – 750ML 2014


As to Reds, Mike Johnston and Bob Thornton recently turned me onto a Cab blend, which really impressed me: Pahlmeyer 2007


I am not a white drinker, but I wish that I had written down the magnificent white that the Thorntons served from Peter Michaels Winery, but I’ll investigate their whites.

I am currently having a serious romance with the former Orin Swift effort, The Prisoner Wine Company’s Prisoner blend and Saluda Zinfandel. Good luck finding them. I buy them by the case when I can do so. I recently attended a Prisoner tasting at Sandy Springs’ incomparable Italian restaurant, Il Giallo. I was smitten with The Prisoner Wine Company’s white wines, The Snitch and Blindfold.

Outstanding Recent Dinner.

One of the best brokers that I’ve encountered, Evan Georgiou of the The Embleton Curtis Quackenbush Group at Merrill Lynch invited us to a dinner, wine tasting and cooking demonstration by Chef Linton of Restaurant Eugene. Restaurant Eugene is always in the top three or four restaurants in any list of Atlanta’s best restaurants.

Chef Linton first performed a cooking demonstration preparing a simple Risotto and spouting an amazing variety of quotable lines.

I almost never recommend any of the hordes of brokers with whom I’ve dealt, but this group has honorably assisted my mother’s affairs – which are more substantial than my investments – even as she declined. This group includes savvy professionals who have not become so jaded as to lose their focus on individual service. They are good and I especially like Evan. They distinguish themselves from the pack.

An Amazing Independent Book Store.

I’ve already tweeted and talked some about Denver’s Tattered Cover Book Store. There are several locations but I prefer the historic Lodo location at 1628 16th Street, near Union Station, set in a restored 1890s building that looks, smells and feels like a bookstore. It also has more appealing places to sit, read and sip than the Colfax location. The best thing about this location is the hundreds of Staff Recommendations placed on bookshelves through the store. The main location on 2526 East Colfax Avenue is larger but those of the Union Station location overshadow the quality of staff reviews and comments.

I bought numerous books off of the Tattered Book Covers’ website VIB section – Very Impressive Books, and I will henceforth monitor the recommendations. The Staff Picks section impressed me less but was still quite good. I also recommend the TC Weekly Bestsellers.

Macallan 18 Year Scotch.

Only Sultans and Russian Plutocrats Need a Scotch Better than Macallan 18 Year Single Malt. The Macallan 12 is wonderful, but the 18 is superb. Some more experienced Scotch drinkers extolled the 15 year, but I’ve not tasted it.

Even North Georgians like Me Enjoy Art.

Karla and I are blessed to count among our friends, Dusty Griffith, a politically conservative former baseball playing Auburn grad, who is also one of Atlanta’s better known artists. Dusty is one of the estimable Pryor Fine Art Gallery’s favorite. I am not artistically gifted, unlike my children, but I love viewing and learning the back story behind a piece. One should never underestimate the importance of a city having a thriving artistic culture.

Dusty and Sarah Cater have recently started a free ranging collaboration in which they drink a bit of wine and then paint back-and-forth and produce a work that is different than either one’s work. I can’t wait to see what these guys concoct together.

One of my friends who differs with me on almost every one of political beliefs, and with whom I occasionally debate, has a daughter Erin Henry, who may not even be 21, but is selling impressive work, especially nudes. I wonder what she’ll be doing at 30.


I’m still pondering Run like Hell and Arsenal of Democracy (see my earlier Post) but recently shifted to fiction. I am not a true intellectual and I must alternate fiction and Non-Fiction.

Outpost, by W. Michael Gear.

This is a fine addition to the Sci-Fi genre of realistic descriptions of future colonization efforts combined with Realpolitik competitions between the various factions and earth. I especially enjoyed the strong character development, especially of the women (who kick a__ and take names). Characters are not one-dimensional. Even bad guys are not always entirely bad. Good guys die and you never lose interest. I hope that the prolific husband-wife team write more books centered on this planet. Damned fun read. Another great referral from my son, William.

The Map of Time: A Novel, by Felix J. Palma.

This one is an oddball. The writer strikes a Lemony Snicket-kind of narrator role and routinely breaks the Forth Wall. The story which teases you with H.G. Wells’ Victorian Sci-Fi twists and then lapses unexpectedly back into real world answers. The characters are mainly the stereotypical vacuous London upper crust of the time, who you want to throttle but thoroughly enjoy. The final twists genuinely surprised me. The story is creative and a great addition to whatever genre incorporates alternative history, homage to Wells, Joyce, Stoker, Holmesian mystery, and Victorian Sci-Fi.

The Catcher Was a Spy: The Mysterious Life of Moe Berg.

The title summarizes the book – Moe Berg was a Princeton graduate, Columbia Law grad, and journeyman catcher for the Sox and other teams during the 20s and 30s. He was a genuinely erudite guy but also cooperated with the press in their gleeful articles on Professor Berg and his Sanskrit reading and multilingual talents. Berg was naturally secretive and while charming, a loner at heart. He was thus well prepared to be a U.S. spy for the OSS in World War II. Berg generated in equal measure, truth and apocryphal stories, and the book tries to sort through them. The book should have been written in about a third less pages, but otherwise it’s a fun read.

I hope that you enjoyed this post. I enjoyed writing it.




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PART II – Organizations Making a Difference in Safety and Management: BevCap Session on Avoiding Workplace Harassment.

Dealing with the challenges generated by the #METOO Movement (my Topic at the Conference) – while EEOC harassment claims have not yet surged in industries outside of entertainment, media and the political world, the #METOO Movement has permanently altered women and men’s perception of the workplace.

New Attitudes or Previously “Hidden” Attitudes.

This movement or event differs from any previous focus on harassment. Not just the size and ugliness of the events … the #METOO Movement has surfaced and challenged a whole range of attitudes and practices, including the long simmering debate about women being paid less than men in so many settings. The longer-term effects of the #METOO movement will be the legal changes on pay and possibly even the long debated Comparable Pay Law.

I recommend the penetrating observations found in the Harvard Business Review’s MANAGING #METOO:

  • But first they (employers) must understand the problem, and that’s not as easy as it sounds. Sexual harassment is a form of dysfunctional behavior within the workplace — and a chronic phenomenon with a long history.
  • Research indicates that more than 70% of women have experienced it on the job, but many incidents of it go unreported.
  • One reason is that the legal definition of sexual harassment is rarely understood. Further complicating the issue, no consensus has formed around lay definitions of sexual harassment, which differ from the legal definition and have changed over the years.

I consider myself reasonably enlightened but recent events have demonstrated that we must recognize that our individual perceptions may not be entirely accurate.

Omnibus Law efforts – New York example.

  1. Mandatory Sexual Harassment Training and Policies

All employers must adopt a sexual harassment prevention policy to be distributed in writing to employees, and conduct annual sexual harassment prevention training. The bill directs the New York State Department of Labor to work with the New York State Division of Human Rights to develop both a model sexual harassment policy and model training program.  Employers can then choose whether to adopt the models prepared by the state or develop their own, so long as their policies and training meet or exceed the standards contained in the models. This law will take effect October 9, 2018.

The model sexual harassment prevention policy must include the following:

  • a statement prohibiting sexual harassment;
  • examples of prohibited conduct that would constitute sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, along with a statement that there may be additional applicable local laws;
  • a standard complaint form;
  • the procedure for the timely and confidential investigation of complaints;
  • a statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and
  • a statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.
  • Meanwhile, the model sexual harassment prevention training must be interactive and include the following:
  • an explanation of sexual harassment;
  • examples of conduct that would constitute unlawful sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims; and
  • information concerning employees’ rights of redress and all available forums for adjudicating complaints.

2.Prohibition of Confidential Settlements

  • Confidentiality language can only be included if that is the complainant’s preference. The complainant must be given a period of 21 days to consider whether to accept confidentiality language, and then has seven days to revoke his or her acceptance. This new law will bestow on employees broad bargaining power in choosing whether or not to keep sexual harassment claims private. This law takes effect on July 11, 2018.
  • The new legislation amends New York’s Civil Practice Law and Rules to ban contractual provisions that mandate arbitration for any allegations or claims of sexual harassment, except where inconsistent with federal law. Any such provision included in a contract will be null and void, but will not impact the enforceability of any other provision in the contract. It is yet to be seen whether and to what extent this provision will be enforceable in light of the Federal Arbitration Act.

3. Other Measures.

  • In addition to the above laws impacting private employers, the new budget law imposes an obligation that bidding entities for state contracts certify that they have implemented a written policy addressing sexual harassment and provide annual sexual harassment training to employees. Additionally, the law requires state employers found responsible for committing sexual harassment to reimburse the state agency or entity for any damages award paid to the plaintiff.
  • Employers may now be held liable for sexual harassment contractors, subcontractors, vendors, consultants, or any other person providing services in the workplace, if the employer, its agents, or supervisors knew or should have known that the nonemployee was subject to sexual harassment in the employer’s workplace, and failed to take appropriate corrective action. This provision takes effect immediately.

4. Extension of Sexual Harassment Protections To Nonemployees.

5. Prohibition of Mandatory Arbitration Agreements

The bill prohibits settlement agreements for sexual harassment claims that include nondisclosure provisions, unless that is the complainant’s preference. Specifically, employers will not “have the authority” to include in a settlement agreement any terms or conditions that would “prevent the disclosure of the underlying facts and circumstances,” for a claim for which “the factual foundation… involves sexual harassment.”

The model training must also include information addressing conduct by supervisors and additional responsibilities for supervisory personnel.

Pay Equity – “Equal Pay” claims have been reborn.

  1. The 9th Circuit Court of Appeals ruled on April 9 that employers cannot justify a wage differential between men and women by relying on prior salary, which makes it more difficult for employers to justify pay differentials and defend pay equity claims.
  2. Massachusetts – Last Month, the Massachusetts Attorney General issued guidance regarding the amended Massachusetts Equal Pay Act (MEPA), which is scheduled to take effect on July 1, 2018. That law will prohibit employers from paying employees of a different gender at different rates provided they are doing “comparable work,” and will also bar inquiries about salary

Laws Prohibiting Obtaining Past Pay History (examples).Many states have passed or are in the process of passing laws limiting or prohibiting obtaining or using past pay history at hire. As examples:

  1.  CaliforniaAssembly Bill 168 (Eggman), prohibits public and private employers from seeking or relying upon the salary history of applicants for employment. AB 168 also requires an employer, upon reasonable request, to provide the pay scale information to an applicant applying for employment.  Therefore, if an applicant inquires as to how much a specific position pays, the employer is required to provide the pay scale for that position.
  2. Delaware, Massachusetts, and Oregon passed similar laws.
  3. Philadelphia passed an ordinance which was challenged.
  4. New York City adopted an ordinance that will become law on October 31.
  5. A San Francisco ordinance will go into effect on July 1, 2018.

Attacking Nondisclosure Agreements – such agreements are under attack, especially when not associated with the resolution of a lawsuit out of a concern that these agreements have slowed disclosure and response to widespread issues.

  1. Section 13307 of the federal The Tax Cuts and Jobs Act provides that no deduction shall be allowed for “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorneys’ fees related to such a settlement or payment.”
  2. Washington State Bill 5996 prohibits employers from requiring employees to sign, as a condition of employment, a nondisclosure agreement (NDA) preventing them from “disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.”

The law also specifies that such agreements—including nondisclosure agreements that predate the new law—will be void and unenforceable. The law does carve out an exception for confidentiality provisions contained in settlement agreements entered into between employers and employees

The bill also adds a new section to the Washington Law Against Discrimination (WLAD) that specifically prohibits employers from firing or retaliating against employees who disclose sexual harassment or sexual assault allegations.

Mandatory No Harassment Programs and Training.

One cannot discount the barrage of statistics … for various reasons, many employees have not felt comfortable raising harassment and discrimination concerns. Our complaint procedures have not worked as well as we believed, and many employers have not yet created a culture where employees will raise concerns about discrimination, harassment, safety.

One of my focuses is on making No Harassment and No Discrimination policies understandable and relevant to employees and supervisors. What meaningful guidance to we give employees when we recite a No Harassment policy drafted to satisfy legal concerns?

A few suggestions ….

  1. Review your No Harassment and No Discrimination Polices and Policy Statements.
  2. Revise them to include lots of examples and less legalese.
  3. Make your No Bullying policies more robust and because bullying and claims of hostile environment, discrimination and retaliation often flow from bullying – connect the No Harassment and No Discrimination policies to bullying.
  4. Train employees to focus on professionalism and to avoid getting to the point of harassment.
  5. Recognize that not every person can be taught good judgment, but to at least try. Common Sense left town – never assume that anyone innately acts with common sense.
  6. Figure out how to convince employees that you are serious that you want them to report “possible” harassment, discrimination, safety hazards and unethical behavior.

Our Hats are off to these organizations and their safety efforts ….

Georgia Tech and GTRI – the best!

BevCap Management Best Practices Conference.

The Georgia Safety Health and Environmental Conference

Charlotte Regional Safety and Health Conference.

AGC-National Safety Committee meetings (outstanding).

AGC-National Advanced Safety Management Classes.

Alabama Governor’s Safety and Health Conference.

NUCA of the Carolinas Spring Conference.

CAGC Annual Safety and HR Conference.

EHS-Today Safety Leadership Conference (sponsored by FP, ABC and others) (11/6/18).

Kentucky Governors Safety and Health Conference.

Indiana AGC Safety Conferences.

National Safety Council.


Shenandoah Valley SHRM.

Mid Atlantic Construction Safety Conference.

Colorado AGC Safety Council – especially proactive about silica.

Oregon AGC – Columbia Chapter.

TAUC Leadership Conference.

ABC Florida East Coast Chapter.

AGC Georgia Chapter.

AGC San Diego Chapter.


TEXO: The Construction Association.






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Safety Lessons from Organizations Promoting Effective Management and Safety.

I wish that time permitted us to write more often about the good work done by various groups to improve workplace safety and management. Notable examples include AGC –National and numerous state AGC-Chapters, the National Safety Council, State safety summits or “Governors Safety Conferences,” such as those in Georgia, Alabama, Tennessee, Mississippi, Kentucky and Indiana; TAUC, NBWA, American Foundry Society, American Poultry Association, and many others. We could also talk about the work of insurers and affiliated businesses, such as Willis, ACIG and Zurich. Today I’ll do just that ….

BevCap Management Best Practices Conference.

I’ve spoken at BevCap Management LLC’s  Best Practices Conferences for many years, on topics such as Drugs in the Workplace, Common Workplace Safety Problems, Ergonomic challenges, OSHA enforcement, FMLA, effective HR, and avoiding Harassment and Discrimination claims. I try to attend other sessions as possible to learn the current concerns on these beer wholesalers’ minds and solutions being developed.

This year’s subjects illustrate concerns on almost all employers’ lists:

Vehicle Safety – the legal exposure generated by fleets and even individual auto usage dwarfs that of most other workplace safety concerns. About 40% of OSHA’s annual workplace fatalities involve vehicles. Workers Comp claims by drivers, especially those involved in loading or unloading product are high. And of course, a single accident killing a member of the public can in a single stroke destroy a company’s hard-won reputation. Therefore, it’s not surprising that topics included:

  • A sobering presentation by attorney Gregory Gowan on a Plaintiff Attorney’s Perspective of the Liabilities Associated with Distracted Driving.


  • A soup to nuts discussion by attorney Mark Downey on Updating Your Company Driver and Vehicle Policies and the legal issues associated with employee vehicle usage.
  • Rear End Collisions.
  • Strategies Used to Curb Distracted Driving.

Smoking Cessation and Addiction Treatment – Harold C. Urschel III, MD, MMA, Chief Medical Strategist, Enterhealth. Dr. Urschel is the NYT Best Selling Author of Healing the Addicted Brain.

I also spoke some on state law challenges posed by recent new state recreational and medical marijuana laws being interpreted as requiring employers to accommodate employees using Marijuana use – still a small minority. However, Dr. Urschel addressed the more crucial root issue of the rise in addiction problems, especially with regard to heroin and abused prescription meds. There are few more serious and expensive future challenges looming over employers. See our frequent writing about opiates and NYT Author Sam Quinones.

Articles by Dr. Urschel:

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Howard’s Discussions on Wine, Restaurants, and Books – We Need a Break from Politics and Law.

Tonight, we’ll take a break from legal and business writing and just have fun with discussing wine, restaurants, and books.

Guard and Grace.

This restaurant evokes the coveted review of “damn!” Let’s start with our entry into the restaurant … this is a modern steakhouse, but unlike places such as STK, which has a great décor but middling food, Guard and Grace has sterling food and service to live up to its inviting bright setting. Forget the cherished dark woods of traditional steakhouses such as the sainted Bones – which admittedly have facilitated many a deal for me. The setting is bright, open, and welcoming – and somehow it’s not noisy – a must for me. And the guests were young, cool, successful, and basically the opposite of me. In other words, fun to watch.

Those who read my work know that I am too efficient to devote a paragraph to the setting, so that tells you how much I enjoyed the atmosphere. I’d sit at this bar every night and type away on my computer if this place was near me.

The bar staff is outstanding – and consider that I’m spoiled by the bar staff at Atlanta’s Il Giallo and Brooklyn Café, so my praise is not easily earned. The staff coordinates unusually well, with all of them attending to you. At one point, the Wine Muse Kelly Cleary and bartenders Jason and Jacob were educating me on wines, while bartender Alex was working with my son, William on appetizers and the raw bar selections. Incidentally, the Burrata was great and the oysters were solid. I am not an octopus fan, and I do not understand folk’s fascination with tentacle beasties, but this octopus relied on meaty texture and oak grilling – only way I’d eat it.

The bar staff were more knowledgeable about wine than even the “better” bar staff, but what I really liked was their involvement of Kelly Cleary, whose title of Wine Locker Coordinator, is cool – who wouldn’t want this job – but really understates her sommelier knowledge. I have a good cellar but I choose wine based on taste and the recommendations of people whom I trust and who know my tasteI simply am not urbane enough to describe wine in the proper terminology despite having been to the wine regions in Europe, South Africa, California and even the Middle East. So I listed wines that I am currently enjoying – Prisoner, Caymus, Turley, etc.

Kelly and her bar staff partners were in a Spanish mood and showed me multiple Spanish choices and finally pushed me to try Clio,”a 2015 Spanish vintage of Monastrell grapes (and 30% cab) from El Nido winery. The price was reasonable for a restaurant wine and the taste bold, jammy and delightful – at least to me – and wine is about what the individual likes. I am wowed by this wine. To me, it punches above its weight – great wine for the price.

Based on my taste, the group also suggested the Alto Moncayo, or the Brega by Bodegas Breca. For my second round, I drank the Black Tears by Tapiz, a 2012 Malbec which has none of the blandness of many Malbecs. It’s a bit more mature. Kelly described it as darker, deeper and more complex than most Malbecs – there is substance and content – its “pensive,” which to her meant complexity and layers – not just one note – Syrah-like. I’m a North Georgia redneck and preferred Clio, but this Malbec is damned good.

The steak lives up to its rep, but great steak is great steak. On the other hand, the sides are different from the usual steakhouse sides – I’m a connoisseur of Gnocchi, and it was some of the best I’ve had – and these guys are wizards at roasting carrots.

This is the longest review I’ve written but these guys were incredibly hospitable to me and my sense is that they do this with all customers. Hats off to their management.

As Arnold said, I’ll be back … probably this week while in Denver.


I’ve got quite a bit to say about books. No surprise.

Go Like Hell: Ford, Ferrari, and Their Battle for Speed and Glory at Le Mans.

Go Like Hell is the rare book that may appeal to everyone. The author, A.J. Baime is a solid historian whose other works include The Arsenal of Democracy. Baime has a deep affection for Detroit and for writing about the interplay of industry and politics.

What distinguishes Baime’s work is that he writes books about history that you cannot put down. He seizes upon real stories that are so colorful and off the wall that a fiction writer would reject as incredible. Put simply, fun reads!

I recently attended the amazing car show and auction, Concours d’ Elegance at Amelia Island, and learned more about the battle between European and US race cars in the 60’s. Did you know that Henry Ford II, Henry Ford’s grandson, was one of the most brilliant American industrialists ever? Did you know that he was the one who first recognized the post WW II U.S. population shifts from stalwart reliable cars to “fast cars?” Did you know about the greatest corporate battle of all time between Ford and GM for supremacy? You’ll never again see its like. And most of all, did you know when Henry Ford II, “the Deuce,” decided to spend whatever was necessary to defeat Ferrari at the then most important race in the world, the grueling 24 hour Le Mans. You do not have to be a car person to enjoy this book.


I was so impressed by Baime’s Go Like Hell that I immediately read The Arsenal of Democracy. You can tell that Baime deeply loves Detroit and its pre-80s grandeur. Prior to its stunning meltdown, Detroit was the third largest city in America, an un-paralleled economic titan, and even the U.S.’s choice of cities’ to repeatedly bid for the Olympics in the 50s and 60s. Read Once in a Great City: A Detroit Story.

My son and I are history buffs. We’ve travelled to Europe, Africa, Turkey and most recently a exploration of the WW II and Communist era Poland and Berlin. Arsenal explains in easily understandable exciting terms how the U.S. went from an isolationist economy devastated by the depression to a Country that produced tens of thousands of planes and tanks. ANY reasonable analysis of the 1941 U.S. would have concluded that we were doomed. You hold your breath as you read about the production battle that arguably won the war. And you’ll detest Henry Ford and respect Edsel Ford when you complete the book. The story resembles a Game of Thrones in the industrial era.

I strongly recommend this book but with caveats. The book is a great thriller with supernatural aspects, and anyone who loves movies and Hollywood history will enjoy the setting and shout outs about golden age actors. The book also bluntly describes the egos and brutal behavior of Hollywood agents, producers, and other power players. However, I am a 58 year old guy and I was a bit put off by the graphic wild sexuality, but the sex is not gratuitous – it was essential to establish the debauchery and soul stealing setting. It’s a good read, but be prepared.

That’s all for tonight. I hope that  you enjoyed my peculiar tastes … and a break from business and legal discussion.

Book Stores Par Excellence.

My son, William and I feasted on Denver-based Tattered Covers Book Stores today when prevented front hiking by freezing rain and snow (William and I have paid our dues hiking in such weather and defaulted to exploring Denver. We encountered Tattered Covers independent book stores which rank up there with Portland’s Powells and LA’s The Last Book Store. Stores like Tattered Covers are a destination and therefore are not rendered obsolete by Amazon’s admitted convenience. We especially loved the hundreds of notes by staffers recommending books and the website’s Very Impressive Books (VIB).  It’s worth following these guys just to see the evolving VIB list. I bought so many books that I had to buy an extra suitcase. These purchases were my act of rebellion against Jeff Bezos and Amazon. I appreciate the ease of buying from Amazon but book stores are a part of culture – they must survive. Tattered Covers has expanded to four locations and shows the survivability of this concept.


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