Friday, November 17, 2017

Al Franken Falls Victim to the Ray Rice Rule

I haven't written for a while because I've been trying to get my arms around the Colin Kaepernick situation, which seems to have morphed into the Jerry Jones/Roger Goodell situation, which morphed into the Ezekiel Elliott situation. All of which,  except for the Elliott discipline, spells bad news for the NFL.

But layered over this has been a constantly shifting miasma of opinion and outrage that started with the Harvey Weinstein revelations. And then we had Roy Moore, and, today, Al Franken. So I thought this would be a good time to pick up the keyboard.

Notwithstanding the creepy and probably illegal (at least in one case) allegations against Republican senatorial candidate Moore, there is no hard evidence that he engaged in any of the conduct alleged. Not so with Senator Franken, a liberal Democrat from Minnesota, who has long been the darling of feminist advocates. And the picture of Senator Franken groping or attempting to grope the breasts of a sleeping woman on a military aircraft on a USO tour teaches us an important lesson that was first raised in the infamous Ray Rice elevator video some years ago.

Rice seemed to be on the track to rehabilitation following a domestic violence incident in a casino elevator. The NFL gave him a limited suspension, the local judiciary was satisfied with his entry into a diversion program, and he was welcomed back on the field by the fans. Then video surfaced of him actually striking his then fiancĂ©e and knocking her unconscious. Everything changed at that point. Rice has not played another down in the NFL.

What changed? Once there was irrefutable photographic evidence of his conduct, the NFL felt it could not ignore the outcry and bad press that broke immediately after TMZ put the video on its website.  In other words, the verbal description of what happened did not carry the negative weight that the picture did. The whole thing caused the satirical website, The Onion, to put a story up with a headline "NFL Takes a Zero Tolerance Stance on Videotaped Domestic Abuse Incidents."  A funny headline, but it's also absolutely correct.

As Mr. Franken is now discovering. The aspects of his offense that are alleged only in writing- forcing a kiss on the same woman in the picture (which actually involves unwanted physical contact, and intimate contact at that)-are being effectively ignored. It's that picture that is driving calls for his resignation.

And so the lesson for everyone policing conduct in the public sphere is that a picture is not only worth 1000 words. It's worth a career.

Wednesday, September 6, 2017

Brave New World of Sports Employment--Gamer Superstars

A 17 year-old video gamer who excels at a game called Overwatch was just signed to a player contract for a reported $150,000.
As a non-digital native, i.e., an old person, I was vaguely aware that there are such things as professional video gamers, and that some of them make money at it.  Until recently, I was unaware that there was actually a professional Overwatch league, with, you know, teams and stuff.  I suppose at some point, there will be uniforms, and cheerleaders, and over-priced food, as well.
But the lawyer in me looks at these situations and starts thinking about the implications.  And there are some real legal issues here.
The first, and most obvious, is the Fair Labor Standards Act, which regulates child labor.  And make no mistake, many if not most of these players, at least early on, will be underage minors.  In fact, "sinatraa's" mother had to sign the contract with NRG because he was under age for legal competency.  So these teams have to be aware that they are treading on dangerous ground, not just from the federal law, but state and local ordinances, as well.
The magic age for allowing children to work is 16 in non-hazardous occupations (and as young as 14 in limited circumstances) and 18 in hazardous occupations. Of particular note here is the FLSA exception that exempts children who are "performers" in motion picture or theatrical businesses. This provision is specific enough that it does not cover athletes, and I suspect that large-scale employment of children under the age of 16 in these kinds of gamer events is going to start raising some eyebrows (and lawsuits) quickly. In addition, these teams have to be cognizant of education issues - typically companies are not allowed to set work during school hours, or, must provide some type of make-up tutoring for their under age charges.
Moreover, a majority of states have child labor laws that piggyback on to the federal exemption, and in some cases go much further in protecting child employees.
That's for starters.  There will be workers compensation claims--repetitive stress injuries are endemic to these gaming activities. And because the kid star is a kid, the clubs will be entering into arrangements with the guardians, parents or trustees of the child's estate, rather than the actual athlete. I'm thinking we'll see variations of the Coogan Law in California, where the compensation for the gamer's performance will be protected from the parents/guardians--what does that mean for incentives and other inducements?
A brave new world, indeed.

Employees Behaving Badly, Part 63

So, I guess not all nurses have the same protective atitude towards their patients as the nurse in Salt Lake City.  Opening a body bag to check out some dead guy's privates ranks up there in the list of things we would not want to happen to us.
These Denver nurses are probably not long for their jobs after this. I'm guessing there will be a substantial patient and insurance blowback to the hospital.

Tuesday, September 5, 2017

Nice Piece on the History of American Labor and Why It Matters Less Now

From City Journal.  This is worth a read to explain the drop in US labor union participation rates, and why the NLRA is no longer the best vehicle to assist the American workforce.

Friday, September 1, 2017

Executive Action, Part 10--The EEO-1 Report

It seems that some form of sanity is starting to pervade the Federal executive branch, at least with respect to labor and employment law initiatives undertaken by the previous administration that were ill advised. The latest change relates to the ubiquitous EEO–1 form, which the EEOC requires of all employers with more than 100 employees, or federal government prime or first-tier contractors with 50 or more employees and a $50,000 contract.  In a heavily criticized move, the Commission put in a new requirement mandating employers to submit their normal race, ethnicity and gender information, but now linked to W-2 wages and hours worked for all employees, grouped into 10 broad job categories that were then subdivided into 12 separate pay bands. The new requirements greatly increased the workload for employers and were challenged by numerous groups, including the US Chamber of Commerce, for their additional cost, limited utility, and potential for misuse.

Fortunately, yesterday the Office of Management and Budget indefinitely stayed the deadline for compliance with these new requirements.  OMB noted that the data collected would not be grouped into meaningful categories, but rather would result in comparing employees in completely different jobs, who perform completely different tasks, requiring completely different skills. To cite an example that hits close to home, lawyers, doctors, accountants, nurses, and dietitians would all be grouped as "professionals," with their compensation data compared based on gender, race and ethnicity.  Even the Commission noted that it did not expect that the data would identify specific, similarly situated comparators or that it would allow the Commission to establish pay discrimination as a legal matter. No wonder hundreds of employers were asking exactly why they were being forced to pull all this together.

For now, employers should plan to report the usual race, ethnicity and gender requirements within the EEOC job categories as they would normally. Those of us who are following these developments believe that, although the revised EEO-1 format is not dead, it's definitely on life support, and will likely not survive the pending appointment of a Republican majority on the OMB.

My thanks to Nick Haynes for his thoughts on this issue.

Tuesday, August 22, 2017

Going After the Charlottesville Marchers' Jobs

Along with general mass hysteria, one of the things that came out of the Charlottesville "Unite the Right" rally was a widespread effort to identify and retaliate against individuals participating in the demonstration. While it might be understandable to exact some type of retribution on people expressing abhorrent views, the practice of doxing, or identifying people on social media for purposes of public embarrassment, can backfire for employers very quickly.

Several states, California for example, expressly protect an employee's political conduct from being a legitimate basis for some type of adverse employment action.  We discussed this previously in the context of the recently terminated Google engineer, and it seems fairly clear that simple participation in a demonstration against the removal of a Confederate statue would qualify as political activity under the statute. Note, however, that engaging in conduct that urges violence against others, denigrates particular religious, racial or gender groups, or similar actions would likely take an employee out of the protected sphere and provide the employer with an adequate basis for disciplinary action or even termination.

A number of other states have a much broader protection for employees that prohibits employers from taking action against employees engaged in legal off-duty conduct.  In some cases originally enacted to prevent employers from discharging smokers, these laws would seem to prohibit action against employees engaged in legitimate and lawful political demonstrations as well. Case in point-a Colorado grocery store worker was terminated allegedly because he organized and attended an adult Hitler rally and was affiliated with the Ku Klux Klan. He sued his employer in federal court trying to argue that the Klan was a religion.  The federal court tossed the case, holding that the KKK was not a religion and political activity had no nexus to his employment. But the judge noted in his decision that the employee's claims might well have been successful had he filed in state court under Colorado's lawful off-duty conduct statute.

So a caution to you employers out there seeking to deal with your people participating in controversial events-don't rush to discipline them without checking first to see if you might be setting yourself up for a wrongful termination lawsuit. While you might not like the idea of someone holding a particular viewpoint working on your staff, having to pay them damages and perhaps even rehire them is a significantly poorer alternative.

I wish to thank my law colleague here in Denver, Nick Haynes, for the idea and research legwork for this post.

Thursday, August 17, 2017