Wednesday, August 15, 2012

How Much Are Gold Medals Worth to the Olympic Athletes?

More than you might think, especially given the relatively stingy payouts to US athletes.

I assume that part of the differential results from the increased marketing opportunities available to US athletes, but that only works for major sports and certain people.  I think USOC should start working on upping the compensation--there is a lot of financial hardship in getting to the elite athlete stage.

Monday, August 13, 2012

Some Useful Insights

The best organizations and their managers do not confuse loyalty with agreement. Instead, they recognize that thoughtful disagreement with one's superiors frequently masks a strong desire to see the company do well, and a strong commitment to the company's goals and values.

This article from the Wall Street Journal online gives some valuable thoughts on disagreeing with the boss and how to do it effectively.  The key point? That disagreeing with your superiors will usually be taken well as long as the disagreement is perceived as trying to protect the boss, or make the company more effective. Disagreeing to promote a particular individual agenda, or for pure self-aggrandizement, does not play well anywhere.

Although I am not a fan of business casual dress, I occasionally participate in it, especially during hot and humid Chicago summers. But the trend itself has been problematic for employers almost everywhere it gets put into place. Especially in white collar, office, environments, where there is always a percentage of the workforce that doesn't seem to understand that business casual does not equal beach attire, clubbing togs, or mowing the yard wear.  Apparently, the pendulum is swinging back from a much more relaxed office clothing standard toward a more formal one, and it's about time.  If you have ever had to tell a coworker to go home and change their clothes (unfortunately, I have), this article will give you cause for celebration.

And here's some guidance on what to wear to work, at least if you're a guy.

Saturday, August 11, 2012

Is the End of Football Now Visible on the Horizon?

That would certainly seem to be the position for the author of this article and the links contained in it. While the American public is willing to put up with any number of sports-related scandals with respect to gambling, and athlete conduct, the idea that football players are permanently injuring themselves in horrible and mystifying ways might be too much to take.

The physical dangers of a football career have been known for some time. Sports Illustrated ran a series several years ago about the toll that maintaining an unusually high bodyweight, and repeatedly slamming that body into other people maintaining unusually high body weights, took on a NFL players. The shortened longevity of an NFL career relative to other major sports is well-known.  As with long-distance running, it is virtually impossible to play football for any length of time without getting hurt seriously enough to stop you from playing.

But the prospect of significant brain injury raises awareness of the game's dangers to new heights.  We now know that cumulative head trauma can manifest itself as dementia or other forms of mental degeneration. The problem is insidious-it doesn't manifest itself until well after a player's career is over.  The fact that it affects a relatively low number of players does not lessen the frightening and horrifying aspect of the condition.

The NFL should rightly concern itself with the situation. For one thing, it has a direct effect on how many people are going to allow their children to participate in football, thus affecting the supply of future players.  Similarly, the knowledge that players are literally destroying themselves will have a direct effect on the willingness of people to watch the sport grind its players up like combat. In addition, the business side of the game was bad enough; football teams were notorious for simply discharging injured players with virtually no recognition in all but the most unusual circumstances. Now, if the allegations in the NFL concussion lawsuits are true-claims that the NFL was well aware of the brain injury issue, but systematically denied that there was a problem and hid key medical data-the league could be looking at a monstrous financial liability.  Not to mention a  public relations disaster which could result in state or federal authorities simply banning football contests for anyone under the age of 18.

Don't laugh, Teddy Roosevelt almost did exactly this more than 100 years ago.

Football is an exciting game that has supplanted baseball as America's sport of choice. But unless the NFL figures out a way to deal with the injury issue, and especially the brain injury issue, I suspect its days might be numbered.

UPDATE:  And the litigation engine is running at full throttle, per this report that the insurance companies are starting to devour each other and their NFL-related clients.

UPDATE II:  PBS and ESPN are out with some information indicating that the NFL was at least acknowledging the relationship between an NFL career and head injuries / brain damage in 1999.  I'm not convinced this is a smoking gun, because this injury seems to be extremely idiosyncratic, but it further opens the door to inquiry regarding what the NFL knew and when it knew it.

Sunday, August 5, 2012

Hiring Qualifications Don't Justify Wage Discrepancies (After a Time, Anyway)

(This entry courtesy of my associate here in Chicago, Susan Baker).

Gender-based pay discrimination is under a political and legal spotlight and has been since the Ledbetter case several years ago.  Accordingly, it’s crucial for employers to understand if and how their employment policies result in compensation disparities and when these disparities have to be remedied.  It’s also important for a company to understand that potential plaintiffs have more than one option to sue their employers--Title VII or the Equal Pay Act (“EPA”) or both--and those options vary significantly in terms of their process and requirements.

Under Title VII, a gender discrimination plaintiff has to prove that her employer intended to discriminate against women by paying them less.  In its defense, an employer need only provide a legitimate, nondiscriminatory reason for its actions.  But in an EPA case, once a pay disparity is established, the employer has to prove that the difference in pay is the result of a factor other than sex.  In other words, the employer must prove that its legitimate business policies (which can't be based on gender in any manner) accounted for the difference in pay.

In many cases, we see such gender-neutral policies at work in hiring.  An employer may favor hiring people with advanced degrees, or particular work experience, or some type of specialized education, that results in women starting at lower salaries than their male counterparts.  The key point to remember is that these types of criteria should only have an effect on the initial compensation decision--once the employees have been working under an employer's performance standards for a while, the hiring criteria should diminish in importance, and the company's performance requirements should dictate compensation levels. 

These were the tough lessons learned for an employer in a recent Seventh Circuit opinion. The plaintiff brought a gender-based pay discrimination claim under Title VII and the EPA and succeeded on both after the Court engaged in a detailed audit of the employer’s pay practices.

As we've noted before, one of the pleasures of working in Chicago is reading the oft entertaining opinions of the Seventh Circuit.  In demonstrating the diminishing utility of hiring criteria over time, Judge Easterbrook here used an analogy that resonates with all dejected law school applicants  who fared poorly on the admissions test, the LSAT.  He explains that although the notorious exam affects the probability of admission to law school, it has no effect on a student’s grades once enrolled, nor does it affect future job opportunities.  This, Easterbrook declares, is just like a sex discrimination claim arising under the EPA:  nondiscriminatory reasons for pay disparities such as education and experience, for example, can properly affect the differences in starting salaries between men and women, but such factors do not, and should not, affect increases in pay once the person is steadily employed.  At that point, performance on the job is what counts, and any original gap in starting salaries should begin to close so that employees doing the same job under the same standards receive the same compensation.

This case emphasizes that employers must be keenly aware of pay disparities and the reasons behind them.  Any factors affecting employees’ starting salaries should gradually disappear, and, eventually, there should be no difference in compensation between employees who work in the same position and contribute to the company on the same level.  This remains true even if it means that women receive greater compensation increases as compared to men in order to close that gap.

Wednesday, August 1, 2012

The End of Workplace Investigations As We Know Them?

Quite possibly, if a federal court upholds the latest NLRB opinion.

It is generally a caveat of an internal workplace investigation that participants in the investigation, whether they be victims, witnesses, or targets of the investigation, are not to discuss the matter under investigation or the investigation itself with their coworkers until the investigation is completed. The reasons for such a requirement are obvious: knowing that an investigation is in progress, and its focus, creates a very real prospect of witness accounts being altered, fabricated, or coerced, evidence being destroyed, or other steps taken to frustrate the employer's ability to get an accurate picture of what actually occurred.

But the NLRB finds that this routine instruction, which is often key in sensitive investigations such as those surrounding sexual harassment complaints, is a violation of the National Labor Relations Act. Specifically, a majority of the Board determined that prohibiting employees from discussing an ongoing investigation with their coworkers interfered with the employees' rights to engage in "protected, concerted activity".

As I have noted previously, federal employment agencies such as the EEOC and NLRB are working to eliminate general workplace rules by which management has functioned for decades. Instead, the agencies are forcing employers into specific, fact-finding exercises that must occur before any workplace policy is put into actual effect. Here, the Board required the employer to make a specific determination as to whether any given witness in the investigation needed protection, whether testimony was in danger of being fabricated, or whether there was a need to prevent a cover-up. Absent specific determinations by the employer (presumably reviewable by the Board with the benefit of perfect hindsight) that such danger was present, the "no discussion" rule was a violation.

Of course, it is frequently impossible to determine at the outset of an  investigation (when such instructions are typically given) whether there is a danger of a cover-up, witness fabrication, or other risks. Often by the time such a determination can be supported with actual evidence, it's too late because employees have modified their stories in response to the questions they know are coming, e-mails have disappeared, and employees have colluded on their version of events.

If this interpretation is upheld, it means that employers will have to make some type of record as to the various bases they have for keeping an investigation confidential, and the facts to support those bases.  The decision represents yet another highly intrusive move by the Board into the workplace of most US businesses.

The EU Will Continue in Economic Crisis

Just a prediction after reading these stories:

Swedish prostitutes are entitled to sick pay (although Sweden isn't in the EU, the thought process is similar between the two governments, see the next paragraph); and,

EU employees who get sick on vacation are entitled to get more vacation to make up for the vacation time they lost being ill.

Res ipsa loquitur.

And Here's Another Reason Federal Judges Don't Trust Department of Labor Opinions

It's bad enough when executive branch agencies change their positions on interpretations of law based on whoever is in the White House. As I've commented previously, the DOL has been getting hammered by federal judges recently because of its dramatic inconsistency in interpreting the meaning of wage and hour regulations under the Fair Labor Standards Act.  Because there is now a Democratic administration in power, the DOL has reversed itself on several long-standing precedents that were relied on by employers.  Federall judges, in response, are simply ignoring DOL's interpretations of its own regulations.

But this latest move is unprecedented, at least in its obviousness. With the threat of budget sequestration looming at the start of 2013, a number of defense contractors are looking ahead to the effect of the loss of hundreds of millions of dollars as result of budget cuts for DOD. Unsurprisingly, the loss of these contracts will mean significant job losses for those companies, and they are now making preparations to provide their workforces with the required 60 day advance notice of pending terminations. This notice is required under the federal Worker Adjustment and Retraining Notification Act, frequently known as "WARN".  Typically, such notice would be required if sequestration is still scheduled at the time the notices are due.

It didn't take Obama administration officials long to figure out that 60 days before January 1, 2013 is somewhere in the vicinity of November 2, 2012, or right before the presidential elections. Realizing that it wouldn't look particularly good for the president and his minions if hundreds of thousands of workers were to receive pending layoff notices just before they went to the polls, the president's people immediately leveraged the Department of Labor into issuing an advisory opinion that such layoff notices, particularly the ones given right before an election in which their benefactor might lose his job, were just inappropriate.

So we have the picture of a federal executive branch agency, charged with upholding laws designed to protect employees, undercutting those laws in an effort to sway the electorate in favor of the current White House occupant.   The move itself is not surprising. The president and his people are from Chicago, after all.  What is surprising is that it was done so openly, and apparently in a state of almost panic.  Regardless, this will provide more fodder for federal judges who are none too happy with how unreliable DOL's advice has become.