Friday, May 19, 2017

A Reassessment on Remote Working

IBM was one of the original promoters of work from home arrangements for its employees. Given the choice between coming into the office or working at home or remotely, as many as 40% of IBM's employees elected to stay out of the workplace.
I have never been a fan of work from home arrangements for the simple reason that accountability and productivity almost always suffer under the circumstances. Moreover, the benefits of collaborative effort, which include increased creativity, better employee morale, and a more efficient productive process, always seem to suffer when one or more of the participants is not physically present.  Any number of companies have the same experience, and work from home policies fostered a growth industry in disability act complaints and accommodation requests.
This phase of relaxed worker management may be coming to an end. IBM has given its workforce a choice of either resigning or showing up at work.  The company cites the need for better group efforts and faster paced productivity.
Is this a trend?  I don't know, but given the millennial workforce's focus on being part of a team for all but the most basic aspects of work, it would seem that promoting collaborative effort through physical presence is the wave of the future.

Monday, May 15, 2017

NFL Helmets Getting a Makeover

A new helmet design is likely to be on the field this season, as NFL teams react to the demand of fans and sports commentators to deal with the issue of concussions and long-term neurological damage resulting from the game.  The Vicis Zero1 helmet is touted as reducing the severity of head impacts and uses multiple layers of shock absorbing material, including a soft outer layer, to lower the G impact resulting from the typical football collision.

Image result for VICIS ZERO1 TECH

I'm keeping my fingers crossed. As someone who played, and as the son of a professional football coach, I'm under no illusions about the violence of the game and the risk of permanent brain injury. But there's no denying the appeal of the game to millions of participants and fans alike. If it's possible to make it safer without altering the game's fundamental elements, then the League and clubs have a duty to do so.  OSHA might be interested in this development, too.

Thursday, May 11, 2017

FBI Terminations and Ruminations

It's always amazing to me that basic employment decisions, such as terminations, are routinely screwed up by people who should know better.

Such is the case with the Jim Comey termination, ostensibly the result of a DOJ review, but in reality, something else.

Full disclosure-Jim and I practiced law together at McGuireWoods 20 years ago. We were not close friends, but certainly said hello to each other in the hallway.

In dealing with what would appear to be a problematic termination-- and firing someone who is in the middle of running a foreign intelligence investigation against you and your staff is a problematic termination, just so we're clear--the most important thing is to establish a coherent narrative of the process.

What's a coherent narrative? It's a narrative that sounds believable to people who listen to it.

If a termination is sudden and unexpected, then the coherent narrative will identify some event or change that triggered the decision to fire the employee. Think assaulting someone at work, a drug arrest under circumstances in which it is clear the individual engaged in misconduct, or some other similar type of gross mishap that would cause people to nod their heads and go, "oh yeah, that's a goodbye move."

If the termination is the result of some kind of extended performance issue, or something that has been under consideration for some time, then the coherent narrative will typically involve some kind of measured consideration, communication with the employee, an opportunity to improve, followed by a decision point made by one or more people.

In every case, it's important to identify the decision-makers, and especially the person making the final decision.  It's also important to demonstrate that the employer followed its normal procedures in making the decision to terminate, or that there is a good reason why it did not.

It's absolutely crucial to not prove too much. Forcing a paper trail of post hoc, justifying documents into the record invariably creates the impression that the reasons for the termination are manufactured and hiding the real reason, whatever that is.

All of these lessons become quite clear and stark with the firing of the FBI director. First of all, the guy who supposedly initiated the termination, the Deputy AG Rosenstein, is apparently balking at his identification as such. Not good. Somebody has to take responsibility, and that should be established before the termination, not afterwards.

Second, the source document for the termination, its preparation, and the fact that Rosenstein was only in his job two weeks, indicates that somebody else was pushing the buttons on this decision. The source document, for example, doesn't say that Director Comey should be fired. It simply noted that confidence in the FBI had been damaged.  A decision document should be a decision document.

Finally, the people talking about the decision need to all be on the same page. It doesn't help the official story that White House aides are saying the decision was based on actions that occurred ten months ago, versus testimony last week that might have provided an updated basis for the firing.

I'm always surprised how screwed up something this basic can become. Rushing through a decision like this, even one at the request of an impetuous boss, almost always leads to more problems that it ultimately solves. I suspect that will be the case here.

Friday, September 25, 2015

The Patrick Kane Vortex

The bizarre circumstances of the sexual assault allegations (it's not even a case, yet) against the well-known hockey player raise all kinds of interesting questions with respect to what his National Hockey League employer should be doing in response.  Some prominent Chicago sportswriters are calling for his team, the Blackhawks, to suspend Kane and keep him away from all things hockey-related.

Note to employers-never, ever, take advice on how to manage your employees from sportswriters.

If I were in the enviable position of providing advice here, I would tell the Blackhawks to keep on doing exactly what they have been doing. Mr. Kane has not been indicted, there is no public and irrefutable evidence that he did anything improper, and this is exactly the type of case that should be left to law enforcement and the court process.  Treating Mr. Kane like some type of guilty pariah damages him, damages the teams' relationship with him, damages his relationship with the public, and, as a result, ultimately damages the product that the organization puts on the ice starting in October.

That probably sounds harsh, but it reflects the essential element of the employer-employee relationship that we would find in place for any other company facing a similar situation. The basic question is how does this episode affect the business?  That is the only legitimate basis for inquiry into an individual employee's off-work conduct.  Absent some showing that the player's conduct is creating business problems for the club, the best and legally defensible move right now is no move. That's particularly true when it appears that case against Mr. Kane is collapsing (my personal opinion is that the withdrawal of the accuser's counsel is based on something far more fundamental than a discrepancy as to how the evidence bag was discovered).

Friday, July 17, 2015

A Formal and Significant Re-Write of Title VII

We all knew this was coming, but the EEOC has formally determined that gender orientation is now a protected category under Title VII.

This is a significant change in the law, accomplished by fiat, rather than congressional action.  In fact, Congress has consistently rejected attempts to amend Title VII to explicitly include gender orientation discrimination, raising the issue of a court challenge to the Commission's change in interpretation.

There are several potential interesting collisions here between the Commission's determination and, for example, accommodating religious practices and preferences, the abuse of discretion standard by a federal regulatory agency, and congressional review. Stay tuned, this isn't over.

Monday, July 13, 2015

NLRB "Protected Activity" Foolishness Rejected by the DC Circuit

Two NLRB posts in a row, here, are a bit unusual, but the Board keeps making news. In this case, it's relatively good news for employers-the District of Columbia Court of Appeals has refused to enforce two separate Board rulings, both relating to the concept of "protected, concerted activity" that has provided the Board with a seemingly infinite basis to intervene in management decision-making.

The first decision from the Court begins with an extraordinary assertion: "Common sense sometimes matters in resolving legal disputes." If only that were true more often.  The Court was reviewing a situation in which AT&T refused to allow its employees who interacted with customers or worked in public (this included employees who entered customers' homes on service calls) from wearing union shirts that said, "inmate" on the front and "Prisoner of AT$T" on the back.  The union, of course, was trying to make a point during contract negotiations with the company. As is frequently the case when unions reach out to engage the public in their negotiations, the conduct here was aimed, at least in part, at damaging the business's relationships with its customers.

AT&T instructed its employees who dealt with the public to remove the shirts, and when those employees refused, they received one-day suspensions. The union filed an unfair labor practice charge, and AT&T responded by arguing something called the "special circumstances" doctrine, which allows a company to ban pro-union messages on publicly visible apparel at work when the company reasonably believes the message may harm its relationship with its customers, or its public image. AT&T's position would appear to be commonsensical-nobody would want to have its employees entering customers' homes wearing shirts that said "inmate" or "prisoner".

The NLRB, however, refused to apply the doctrine, noting that no one thought the garb constituted prison wear, and therefore the company's concerns were overblown.  Yeah, right. This is a singularly narrow and misleading reading of the doctrine, in my opinion, since it ignores the obvious and intentional adverse impact of having people show up in customers' homes with this kind of message on their clothing.

The Court agreed. See the reference to common sense, above.  All an employer has to do is demonstrate a reasonable belief that the message can damage customer relations. That, AT&T was able to do, easily.

The second case involves an unbelievably long resolution time, but validates an important right for employers to control access to their property. In 1999 the Venetian, a luxury Vegas hotel and casino, was engaged in an organizing campaign with two unions.  The unions staged a major demonstration on Venetian property and the Venetian asked the local police to issue criminal citations to demonstrators for trespass.  After the unions filed unfair labor practice charges against the Venetian, the hotel argued that its request for police assistance was protected by the First Amendment-- specifically the petition principle that allows an employer to engage in conduct that would otherwise be illegal if the conduct is part of a direct petition to government for relief.

The board rejected the hotel's defense, but the Court of Appeals reversed, finding (and I don't think this is particularly controversial) that a direct petition to police for assistance falls under First Amendment protection. The Court remanded the case back to the Board to determine whether the request for police assistance was a valid one to secure property rights or whether it was a sham brought with the specific intent to further wrongful conduct through the use of governmental process.

The key for employers in this second case is to make sure that their conduct is focused on a judicially protected interest, that is, an interest that belongs specifically that the employer, before attempting to invoke this doctrine. Employers who, for example, report unionizing employees to the Department of Homeland Security for immigration purposes are not protecting their own interest. With that important caveat, the Court's guidance is clear and important, especially in union trespass situations.

Sunday, July 12, 2015

NLRB Again Makes It Harder for Employers to Manage Their Workforces

It's no secret that the National Labor Relations Board has been on a crusdade over employer investigations. The last several years have seen decisions that make it much more difficult for an employer to conduct workplace investigations, both in the union and non-union context.

Specifically, in 2014 in a case known as Fresh and Easy, the Board determined that a complaint by an individual employee relating to a personal Title VII issue (something that had little or nothing to do with the National Labor Relations Act) that triggered an employer investigation, somehow subjected that investigation to the full panoply of NLRA restrictions and requirements applicable to protected concerted activity.

Similarly, in a 2015 decision, Banner Estrela, the Board hamstrung an employer's attempt to preserve the integrity of an ongoing workplace investigation by determining that a confidentiality instruction to employees involved in the investigation violated their rights under Section 7 of the Act.

The Board continues its efforts to make it virtually impossible for an employer to conduct an effective internal investigation with its latest decision in American Baptist Homes of the West. In this case, the Board overruled a long-standing determination that employers were normally allowed to withhold from the union confidential employee statements collected as part of an investigation.  Instead, employers are now required to do a case-by-case assessment of whether there is: a risk of retaliation against the employee, a high potential for witness fabrication of evidence or destruction of evidence, and similar factors, before the employer can even offer confidentiality to a prospective employee witness.

As the dissent notes, this will greatly reduce the likelihood that an employee will even talk to an employer. Most employees in a union setting are well aware of the danger for retaliation by their coworkers in a situation where they are seen to be helping the company. Until the employer hears the employee's report, it will be impossible for the employer to determine whether the circumstances are such that one of the very narrow Board standards for non-disclosure will even be met. In other words, an employer cannot offer confidentiality to a reporting employee upfront, and without that offer of confidentiality, most employees will simply elect to keep quiet rather than risk making statement that will put them in a bad position with their union leadership.

There's no question that the Board's holding damages an employer's ability to manage its workplace and its employees. It is yet another reason why the stakes on unionization of the workforce get higher each year. With the Board working to effectively limit management's ability to discover what is happening in its workforce, it is more likely that employers will simply move to workforces that cannot be unionized - independent contractors, part time employees, and task-duration hires, that are less secure and potentially pay less.