News & Insights

Hey Old Man, Get to Work!

Pictured above: John “Old Man” Messner http://lucaslagoons.com/about-us/the-crew/ 

By Laura L. Rubenstein, Esq.

Wright, Constable & Skeen, L.L.P
September 6, 2017

I was recently watching a reality TV show called Insane Pools: Off the Deep End, where a company reconstructs a family’s backyard pool into a backyard paradise. It followed the typical format of a reality construction show where they interview the homeowners, draw up blueprints, get everyone excited, start construction, potential disaster, cliff hanger… commercial break, disaster averted, followed by a beautiful new yard. It’s impressive. But what struck me as an employment lawyer is that Lucas, the star of the show and owner of Lucas Lagoons, refers to all of his employees using nicknames. There was Woman, Crash, Sunshine and Old Man. As it turned out, “Woman” was Lucas’ mother and a master stonemason. My impression was that she didn’t mind the nickname. If she did, she’d have no problem speaking up and telling her son to be more respectful.

Then there was “Crash,” aptly nicknamed because he had a history of crashing heavy operating equipment. Crash embraced his nickname and kept a smirk on his face during filming. “Sunshine” was the newest employee who always seemed happy.

Finally, there was “Old Man.” John “Old Man” Messner didn’t appear to be related to Lucas. In the episode I watched, the nickname Old Man was used frequently. I’m sure that was somewhat encouraged by TV producers to get higher ratings, but the employee also didn’t seem to mind, as he was a star in his own right with impressive stone mason skills.

But folks, reality shows aren’t reality. While nicknames can be endearing and fun in the workplace, they can also invite a lawsuit. In fact, courts are clear to point out that the use of a derogatory term referencing someone’s age, race, gender, religion, national origin, gender identity or sexual orientation (to name a few protected categories) can be discriminatory on its face because a reasonable person would find it offensive. The employer’s defense that it was a joke, or it wasn’t meant like that, or “everyone laughed” doesn’t usually make a great defense.

So, if you still insist on using nicknames in the workplace, think about using a name that isn’t based on someone’s protected category, like a shortened first name such as “Mike” for Michael or “Ruby” for Rubenstein or whatever else the employee may use to refer to him/herself in the workplace or requests to be called. In almost every case, I wouldn’t advise calling an employee “Old Man.”

For questions about employee relations or other legal dynamics in the workplace, contact
Laura Rubenstein at 410-659-1347 or lrubenstein@wcslaw.com



Laura Rubenstein

Throughout her year legal career in Maryland and D.C., Laura Rubenstein has spent countless hours counseling local and national employers on all aspects of workplace legal issues. She represents businesses and nonprofit organizations in a wide range of matters, including investigating sensitive and confidential employment claims, negotiating employment and severance agreements, defending harassment, discrimination and retaliation claims and handling wage and hour lawsuits.

Laura represents clients before administrative agencies including the DOL, EEOC, NLRB, OFCCP, DLLR, among others. She listens and counsels on how to address workplace accommodations, employee theft, workplace violence, and leaves of absences and negotiates and drafts documents critical to the client’s individual needs. In addition to her support of many non-profits, including sitting on various Boards and committees in the community, Laura is an accomplished speaker, writer and is a certified mediator.