NFL Stars Repudiate Foolish Trayvon Comments

Well, that didn't take long.

Shortly after the Trayvon Martin verdict came down, two NFL wide receivers made ill considered comments on Twitter  (I'm thinking the NFL, or at least the clubs, should consider a total Twitter timeout-a "TTT"- for everyone on their rosters; see my social media and athletes post of about a year ago).  Roddy White of the Atlanta Falcons recommended that the jurors just go home and kill themselves, while Victor Cruz of the Giants tweeted that it wouldn't be too long before the the "hood" caught up with George Zimmerman and made him pay.

As the press firestorm began to break on these two gentlemen, someone-I hope it was their agents, who should be earning their pay-got to the two players and explained to them that not only might their outbursts affect future endorsement deals, it could actually subject them to discipline under the NFL off-duty conduct policy.  The apologies and retractions for the comments followed shortly thereafter.

Good move, gentlemen.

The First NFL Bountygate Personal Injury Suit

I thought it wouldn't take this long, and I also think they're in the wrong forum, but an NFL player is finally suing over Bountygate, alleging that he was targeted for injury as a result of Gregg Williams' bounty program for injuries when Williams was coaching at Washington.

Links are here, here, and here to several stories on the complaint, which is still behind a firewall.  But it alleges both criminal and civil battery against a Redskin player, motivated by the coaching plan of rewarding people who injured opposing players.

I think this case would be a better fit under the jurisdiction of the NLRB--it may be pre-empted to go there in any event.  For one thing, the conduct alleged is a violation of the CBA because it involves payments for players "off the books", something that is a major violation of the NFLPA-League agreement.  Whether the League wants to push the case to the Board is another thing, but there might be some good reasons that the clubs and Williams want to avoid a federal jury trial on this matter.

"Wax on, wax off" or You're Fired

This is a case making the rounds of the employment law blogosphere for its salaciousness and silliness. In western Pennsylvania, a woman is suing her employer, a waxing salon, after she was fired for refusing to participate in a Brazilian waxing session with co-workers, which is part of the training program at the chain of salons.  Specifically, the woman claimed that she was ordered to Brazilian wax her female co-workers, and to allow herself to be waxed, to train in the procedure.

This sounds reasonable--given what little I know about having pubic hair pulled out by the roots, if I were a customer, it's a process I would prefer to have done by someone who had at least practiced.  But the plaintiff claims gender discrimination because men weren't required to do this.

Yeah, I'm pretty sure there aren't a lot of guys lining up in Pittsburgh salons to get burning wax applied to their nether regions, followed by having their hairs ripped out--this is one of those things where women are either a lot tougher, or dumber, or both.  Given that this is an almost exclusively female practice (although if the salon employed male waxers, I could see there being a similar requirement), I'm pretty sure this case fails as gender discrimination.  The retaliation claim falls as well, because the initial complaint of gender discrimination doesn't seem well-founded.

Where's Pat Morita when you need him?

Looking Good--Iowa's Supreme Court Reconsiders

Apparently the Iowa Supreme Court is going to reconsider its most discussed case in recent memory, the so-called irresistible attraction case involving a dental assistant who was fired for being too pretty.  As you may recall, the assistant's boss, the dentist, determined that she was too attractive after his wife, who also worked in the practice (there's a lesson here, gents) found sexually provocative messages on her husband's computer from the assistant.  The assistant sued for gender discrimination, and the Supreme Court found, unanimously and reasonably I might add, that terminating an employee based on her attractiveness was not discrimination or harassment based on gender.

The Court is hearing this with no additional oral argument and will basically be rehashing its original arguments with no input from the lawyers or anyone else.  The general consensus is that the decision will remain the same, but that one or more of the Justices will file a dissenting opinion in time for upcoming elections.  Nice to know people aren't going too far with that whole impartiality thing.

How To Structure and Promote Innovation

Here's a thought provoking piece from the Journal about how companies develop innovation and creative thinking in their employees.  It runs counter to the traditional model of "thinking outside the box."  In fact, the authors note that people are at their best when their creativity is channeled into making the best of a situation with limited options and outcomes.  Then a group's natural familiarity with its resources, be it a product or process, can fully come into play to solve the problem.

Of course there are techniques to this type of problem solving.  The authors list five: subtraction (removing a heretofore essential element); task unification (consolidating or combining unrelated tasks or elements); multiplication (copying an item and then altering it); division (separating and rearranging elements of a product or process); attribute dependency (make the attributes of a product change in response to changes in the environment or other attributes).  Teaching employees to think like this when analyzing workplace issues can pay big benefits in creative responses to an intractable problem.

I used to think that you couldn't train for creativity.  This article causes me to reassess my position.

Working Women, Part 2

This article from Foreign Policy has some fascinating data on working women and the impact of maternity policies, education efforts, and anti-discrimination efforts from a global perspective.

The abridged version--American women are in better shape than working women in most of the world (especially when it comes to high-level management positions), and there is a persistent gap world-wide between the number of women in the general population and their participation at higher levels in the workforce.  This gap has persisted despite the best efforts of any number of social engineers.

Worth a read, as the US continues to wrestle with workplace equality issues.

Bullies Get Ahead, But Where?

A recent study shows that bullies, far from being ostracized in the modern workplace, are in fact often promoted and get good performance evaluations from their superiors.  This leads to some interesting questions:

-  I suspect that bullying, like sexual harassment, is a highly subjective concept.  One person's bully is another's effective motivator, or is seen as simply a little gruff, or socially maladept.  Lots of people tell stories about being bullied, but is there some type of workable definition, other than making someone feel bad?  If I consistently tell someone their work is terrible (because it is, in my opinion as their boss), and tell them their job is in danger, does that equal bullying?

-  Again, like sexual harassment, there is a sliding scale of frequency and severity for bullying.  A physical assault would clearly establish a bullying situation, but mean or threatening remarks would have to be repeated to get an equivalent perception.

- Does it make sense to establish so-called 360 degree review programs, where a supervisor is rated by subordinates as well as superiors?  And would we get any more honest criticism from the folks reporting to someone than we typically see from superiors?

- I think that most of us would agree that certain types of conduct--personal insults about appearance, for example--would be a basis for disciplinary action.  But how common are these circumstances?  I don't think I've ever had a situation like that arise.  I have seen threats--"if you ever raise an objection to my proposals in a meeting again, I'll get you fired."  Is that bullying?

- Are there certain relationships that promote bullying behavior?  Obviously ex-paramours  working closely could be trouble, family members, too.  Anything else come to mind?

- Where the conduct is clearly personal, how much involvement should the company have, and what should be its level of responsibility to prevent further conduct?

Return of the Two Week Vacation?

Supposedly people are taking longer vacations then they used to, mainly because modern technology allows them to be in touch with their offices/businesses while on the road.

Excuse me, but that's not a vacation. That's hauling your work stress to places where you can't handle emergencies nearly as well as you can at your office, and making everyone else around you, who expect to be enjoying themselves, miserable in the process. It's also a great cure for marital happiness--trust me on this.

Are employers more tolerant of extended time away? Maybe, but most of my clients are happy to trade a long vacation with connectivity for shorter time away so that they can disconnect completely.

I don't seem to be able to do even that, unfortunately. I hope you can.

The Supreme Court Refines the Supervisor Definition for Workplace Harassment Cases

In Vance v. Ball State University, the Supreme Court refined workplace harassment jurisprudence under Title VII to provide employers with more guidance about who creates strict liability for a company.

This is an important decision. In Title VII harassment cases, an employer can escape liability for a coworker's harassment if the employer is negligent in controlling the victim's working conditions and ignores reasonable complaints of harassment from the victim. But where a supervisor is involved, the rules become significantly more onerous for an employer. If a supervisor's harassment results in a tangible employment action (typically hiring, firing, failing to promote, reassignment with different responsibilities, or some other significant change in benefits), then the employer is strictly liable, whether it acted reasonably or not. Only in situations where there is no tangible employment action as a result of supervisor harassment can an employer escape liability. The employer does this by proving an "affirmative defense": that it took reasonable steps to prevent harassment and the plaintiff failed to take advantage of corrective opportunities.

There has been a dispute about who exactly is a supervisor that imposes this greater burden on the employer ever since the standard was announced in the Fargher and Ellerth decisions, . Because the term "supervisor" is not defined in Title VII, lower courts have wrestled with what constitutes the role in order to establish the crucial liability standard.

The Supreme Court here tries to clear up the confusion by determining that a supervisor is someone empowered by the employer to take tangible employment actions against the victim. In other words, a supervisor is not someone who simply make day-to-day assignments, she must be a person who can fire, hire, demote, or otherwise make a significant impact on the terms and conditions of the victim's employment.

This is a big deal not only in the context of litigation/causation issues, but for employers trying to develop preventative programs. Supervisor training, for example, because of the implications of supervisor harassment, is typically quite different than line staff training. This decision gives employers a clearer picture of who exactly can commit them to strict liability issues, and allows employers to focus training on those positions exclusively. Vance represents a significant set back for the EEOC, which tried to argue that a much more nebulous definition of supervisor--any position that simply controls someone’s daily work in a significant way--was sufficient to establish supervisor status. This case, at least in my opinion, puts the emphasis where it needs to be: on employers to make sure that the people to whom they delegate crucial and important personnel decisions on a day-to-day basis, are properly trained and notified of their roles in the Title VII system.

Supreme Court Sets the Causation Standard for Retaliation Cases Under Title VII

A recent Supreme Court case involving retaliation claims under Title VII sets an important standard for companies facing retaliation claims. Retaliation claims are a significant problem for employers because they are generally easier to prove--it's easier to convince juries that retaliation has occurred rather than outright discrimination. Employers faced with an employee who has complained of discrimination (and thereby placing herself in Title VII's “protected activity” category) are at a distinct disadvantage to show that they did not factor the protected activity into a subsequent termination demotion or some other type of adverse action.

This makes perfect sense when you think about it – most jurors probably have difficulty believing that a modern company would engage in outright race or sex discrimination. However, those same jurors have little difficulty believing that a company would take action against someone who ratted the company out to the EEOC, or challenged a particular supervisor with a claim of discrimination, whether right or wrong. In fact, as I've said before, its not uncommon to see cases where a jury finds an employer not guilty of discrimination, but guilty of retaliating against an employee who makes a claim of discrimination that the jury did not believe.

So holding that a plaintiff employee must prove that an employer's retaliation was the “but for” cause of an employment decision is a significant move by the Court. I think it’s the right result– the language of that portion of Title VII that covers retaliation claims was not modified by the language of the Civil Rights Act of 1991.  That law amended the proof standard for run of the mill discrimination claims (so-called "status" claims, because the discrimination results from an employee's racial, gender, or religious status) from a “but for” standard to a much easier “motivating factor” standard.

What’s the difference? A “but for” standard means that without the illegal retaliation as a cause, the employer doesn't take the adverse employment action. That’s a much higher standard than “motivating factor”, which means that the protected activity could be one of several reasons for the employer's action, not necessarily the single "cause."

So this case is important for employers. Whether the president and Congress will follow the dissent's suggestion that they undertake some kind of legislative fix remains to be seen. But there is no doubt that for retaliation cases, the Court strengthened employers' chances with this decision.

Cook County Commission on Human Rights Has Limited Damage Options

A lot of employers in Chicago and its suburbs don’t know that, in addition to the federal human rights laws and the Illinois Human Rights Act, residents of Cook County have a third venue in which to raise a complaint – the Cook County Commission on Human Rights. In a case that reached the Illinois Supreme Court, the Commission ordered some $50,000.00 in lost wages, compensatory and punitive damages against a bar owner. The Supreme Court determined that the Commission did not have statutory authority to award punitive damages and reversed.

That’s interesting (sort of), but not as interesting as the facts used by the Commission to measure credibility. The case, involving sexual harassment claims, was a classic “he said, she said”. The bar owner denied harassing the employee, and brought forward a series of employees and patrons who denied the claimed incidents occurred. The Commission determined that the bar owner was not credible because he appeared to be nervous and continuously swiveled his chair sharply while he testified.

I could hardly imagine that someone being called to testify in front of the Commission might not be nervous, and I've never heard that swiveling a chair (or rocking back and forth in it as I am want to do) marks anything other than having a fair amount of nervous energy. In fact, this type of credibility assessment simply provides more fuel for the "Commission and its ilk are simply pro-plaintiff to the point of silliness" fire that burns in the minds of Chicago employment defense lawyers.

Lastly, employers in Chicago, and not just Cook County, should be aware that there is a fourth entity that provides coverage for civil rights violations – the Chicago Commission on Human Rights. Chicago employers need to be aware not only of various fora in which they could be charged, but the general standards to which the complainants will be held versus the companies that employ them.

llinois Court Tacks On an Important Limitation to Non-Compete Agreements

This recent case out of Cook County, affirmed by the Illinois Court of Appeals, sends a bit of a scary message for employers hoping to rely on non-competes that are entered into as a condition of employment. Fifield v. Premier Dealer Services, Inc. involves an insurance salesman marketing finance and insurance products to the automotive industry. He went to work for a subsidiary of Great American Insurance Company. Great American ended up selling the subsidiary to Premier Dealership Services, Inc. and terminating Fifield’s employment. Premier, however, offered to employ him, but with the requirement that he sign a non-compete agreement.

Of course, things didn’t work out – Fifield left Premier in the middle of February the following year and began working for a competitor in violation of the covenant. He sued to invalidate the non-compete agreement, arguing that he had not worked long enough at Premier for there to be valid consideration to support his non-compete agreement. Premier filed a counterclaim, asking for an injunction to enforce the non-compete agreement.

Illinois is one of those states that enforces a post-hiring non-compete agreement as long as the employer provides adequate consideration in the form of either compensation or additional employment. Case law in Illinois indicates that the additional employment should be for a minimum of two years. What makes this case unique, and particularly troubling, is that most courts recognize a distinction between consideration necessary for post- hiring non-compete agreements and the consideration required for pre-hiring non-compete offers. Pre-hiring non-compete offers are generally considered to have valid consideration supporting them because the offer of employment is contingent on the employee signing the agreement. Post hiring non-compete agreements, since they are not tied to an offer of employment, typically require additional compensation, either in terms of money, benefits, or continued employment. As noted, in Illinois the continued employment for post hiring non-compete agreements is generally considered to be at least two years.

Inexplicably, both the trial court and the appellate court found that whether an employment agreement covenant is offered either pre- or post-hiring is irrelevant – the employee must be employed for a period of two years, minimum, for any restrictive covenant to be enforceable. Moreover, the court found that it doesn't matter whether the employee resigns or is terminated by the employer--if the term of employment doesn't hit the magic two year point, the covenant fails for lack of consideration (again, assuming there has been no money payment to support the covenant).

This decision ought to scare the living daylights out of most employers who rely on non-competes to protect their trade secrets, intellectual property and business good will. For one thing, it means that there needs to be a special compensation or benefits sweetener added to any non-compete agreement, whether offered at the beginning of employment, or later, to provide any meaningful protection. Otherwise, an employee could sign the non-compete agreement, get a better offer from a competitor two months later, and resign, with no fear of enforcement at all. The decision categorically ignores the distinction between an employer and employee adjusting their offer and counter-offer in negotiating for a job (presumably, the non-compete's value is factored into either the terms of employment or some other aspect of the job offer) and the additional consideration needed to support a contract signed after an employee is hired.

This case looks like one that should be appealed to the Illinois Supreme Court, but may simply be allowed to languish. For employers in Cook County and the Chicago area, this is a very troubling result, and one that probably cries out for some type of legislative fix.

Beer Dispensers at Work--What Could Go Wrong?

If this is in fact a trend, then I'm going to have to rethink my entire sexual harassment prevention training program.

The ADA and Corporate Wellness Programs

Earlier this year, the EEOC issued an opinion letter relating to the application of the Americans with Disabilities Act to corporate wellness programs.  An employer asked for an EEOC advisory opinion as to whether its proposed policy of providing financial incentives for employees who successfully participate in the program would be affected by the ADA accommodation provisions.  The plan had a specific provision benefiting employees who demonstrated that they took their medicine 80% of the time.

As you can see from the letter, the EEOC found that an employer would have to make, or at least offer, accommodations to employees who were somehow unable to meet the requirements of the program  because of a qualifying disability.  The Commission's position is consistent  with HIPAA's "reasonable alternative standard", which also aims to make employer health benefits incentive programs accessible to disabled individuals to the same extent as the programs are accessible to the rest of the workforce.

A couple of other key points:  because the Commission is obviously taking an expansive view of what constitutes a wellness program under its regulations, an employer should be prepared to face ADA challenges to those programs;  such wellness programs must be voluntary; and an employer may not penalize employees who do not participate (i.e. the employer can only offer a benefit).  Also note that the Commission is still being coy about whether offering a benefit for successful wellness program participation is in fact some type of penalty, or some other functional equivalent of a requirement to participate in the program.

This topic is only going to increase in importance, because under ObamaCare employers can increase the incentives for successful participation from 20% of the cost to 30%.  Cost incentives are even more significant for programs designed to reduce tobacco usage (up to 50%).  As employers move to put these programs in place, and allow their employees to escape at least some of the cost hikes implicit under Obama care, the accommodation question is going to come up more frequently.