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 fiancée 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.

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.

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.

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.

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.

Things You Don't Want to Hear From Your Jury Panel

In the Martin Shkreli case.
And this was before any evidence was taken.

Don't dis the Wu-Tang Clan, man.  There are consequences.

The Future of Work, Part 3

I continue to be astounded at how quickly artificial intelligence systems are advancing into the world of everyday labor.  Here's an article that reflects another incursion--into the world of retail sales.
These jobs have become more vulnerable recently as statutorily inflated minimum wage  rates, lack of flexibility imposed by local ordinances (I'm talking to you,  New York City and Seattle), and other factors make keeping people on these low skill retail jobs more expensive.
And we're not effectively training people to move into the world that will be created by these AI systems--a world that will require more detailed technical knowledge and understanding for jobs and careers. All this points to a major economic dislocation as these retail positions become automated.
Here's an assessment of what work is going to look like, and, unreasonably in my opinion, that argues for taking money from the rich to give to people who can't/won't raise their economic sights.

Millennials in the UK Are Apparently Not Much Different From Millennials Anywhere Else

At least according to this article.
It's always a mistake to generalize with specific individuals.  But these workplace place trends have been surfacing for some time now.  Will we see a counter-movement in education, or some other type of adjustment in workplaces to "top off" young workers with poor skill sets?

Takeaway from the Taylor Swift Case: Sometimes Employers Almost Have No Choice

From my partner here in Denver, Nick Haynes:

The U.S District Court of Colorado is all abuzz with a trial involving celebrity singer Taylor Swift. Swift was sued by former radio host David Mueller, who is seeking $3 million in damages, saying he was falsely accused of groping the star and was slandered as a result. Swift countersued, claiming sexual assault, for a symbolic $1. 

Mueller allegedly grabbed Swift’s buttocks during a photo opportunity. The facts alleged state that she complained to her bodyguard, who confronted Mueller, and Mueller was eventually escorted out of the venue. Someone from Swift’s team contacted Mueller’s employer, radio station KYGO in Denver, and he was terminated after an investigation.

KYGO almost had no choice but to terminate Mueller. After an investigation, they most likely determined that it was more probable than not that Mueller was guilty of the offense, which is generally the standard for termination decisions. The risk would have been too great to keep Mueller on as an employee. This incident could have been used against the employer in future allegations of sexual harassment of a coworker, negligent retention by KYGO had he sexually assaulted another third-party, or negligence in a general tort action due to similar behavior. Once an employer conducts an investigation and determines something like this most likely occurred, the safest route is to terminate the accused employee.

Any employer who is faced with a similar allegation, either by a third-party like Swift or by a coworker, should conduct and immediate investigation and use the following credibility factors (promulgated by the EEOC):
Inherent plausibility: Is it believable that Mueller would grab Swift’s buttocks?
Demeanor: When questioned, did Mueller seem to be telling the truth or lying?
Motive to falsify: Did Taylor swift have anything to gain by making such an allegation?
Corroboration: Was there additional evidence to support that the incident occurred – like a bodyguard to testify it happened or a photo that purportedly shows the incident?
Past record: It is unknown if Mueller had a past record, but anyone can see how KYGO did not want to see something like this happen a second time.

And it's very important that the assessment of these factors be made in writing, and kept in the event the employer has to recreate the decision process for the EEOC, the NLRB, or some other tribunal.

For Swift’s sake, we can all hope her lyric is true, “I’ve found that time can heal most anything.”

The Google Post and Its Aftermath

I have to wonder what's going on in the human resources department at Google recently. The company is the target of choice for a variety of lawsuits, and has now become something of a whipping boy for the press because of its large number of male employees.  Fairly or unfairly, the company is haled as an example of the professional ceiling women face in the STEM fields.

The irony of all this is that Google is one of the most liberal political business cultures in the country. It's so liberal, in fact, that people expressing politically conservative views feel isolated and targeted. At least that was the point of a memo written by a Google engineer that went viral this week. You can read the memo here, but the essence of it is that Google is not a diverse working environment, at least from an intellectual perspective, and that there is a definite firm monoculture that represses alternate worldviews. The author focuses particularly on the issue of women at Google, noting that perhaps biological differences factor into the suitability of women in some of these positions. If this is true, the author notes, then the way Google is going about trying to increase male-female diversity is problematic.

The piece is a difficult read, and I won't make any snide remarks here about engineers and communication styles.  The gentleman who wrote the memo could have phrased his points more tactfully. But there is nothing in this memo that is outside the academic discussion of the role gender plays in job selection and work assignments in this country. It is a thoughtful piece that takes into account recent social science research and notes that Google's culture actually restricts free discussion on the issues that are so important to it.

Unsurprisingly to those of us who follow the progressive world's responses to these kinds of challenges, the engineer author was fired by Google within days. As an employment lawyer, my first thought was "does this guy have a case against the company?" Certainly it appears that the action was unfair and unwarranted. But a company is not the state-it can police speech among its workforce to a much greater degree.

But that freedom is not unlimited. California specifically protects political speech by employees, and makes it illegal to terminate someone because of their political opinions or participation in political events. I'm not sure that this type of action would necessarily qualify as political, however. For one thing, making this political speech would conceivably insulate certain types of clearly objectionable opinions from an employer's reach. Think racist or sexist remarks along the lines of "barefoot and pregnant," or "shipped back to Africa."  So I think it's a stretch to call this protected political speech under California state law.

There's another avenue available to the employee, however. The National Labor Relations Board has greatly expanded the reach of Section 7 and 8 NLRA rights in the last few years. These Sections deal with so-called "protected, concerted activity", which is collaborative speech aimed at terms and conditions of employment of concern to the workforce at a company. It would be hard to imagine a more basic claim relating to the terms and conditions of employment than a challenge to a firm's corporate culture like the one here. I don't know whether the Board would take this case, since it runs against the progressive direction of the government's efforts over the last administration. But I think a direct challenge in the form of an unfair labor practice against Google has a legitimate chance of succeeding.

Here are some other reads on the issue:

http://www.investors.com/politics/editorials/did-google-just-choke-on-its-woke/

http://www.bostonglobe.com/business/2017/08/07/google-fires-employee-who-wrote-memo-about-women-technology-jobs/U8tL4oYksGg6U8XV6vSnFN/story.html?event=event25

https://www.theatlantic.com/politics/archive/2017/08/the-most-common-error-in-coverage-of-the-google-memo/536181/?utm_source=atlfb

Update.  Apparently the engineer's lawyers read the NLRB's recent actions the way I do.  And here is a relatively thorough analytical piece on the legal issues--note who holds what opinions regarding the inflammatory nature of the engineer's comments.

Another thorough analysis.  Note the inherent conflict between raising issues concerning how a company responds to discrimination, and the creation of a hostile work environment as a result of raising the issues.  I think that's the conundrum in which Google is now enmeshed.

Here's a good "what-if" letter from The Economist.  And an equally effective rebuttal.

A Major Change in NFL Drug Policy?

For the first time the League is making overtures to the Players' Association about investigating the possible role of marijuana as a pain management agent, without violating the terms of the  highly restrictive NFL substance abuse policy.

It's unclear how this will work, but given that the DOJ, for now, has essentially turned a blind eye to dope use in states where it's legal, the NFL may be looking to mitigate the negative publicity associated with the recent CTE discussions.  And also to keep its players in the game--there is a regular parade of players who are suspended for testing positive for marijuana.

Military Transgender Ban

This is a major change for DoD, which has been subject to a series of executive orders regarding inclusion of homosexuals, transgender persons, and other gender-related civil rights initiatives. Whether this means a more limited role for DoD as a mechanism for orchestrating social change on gender issues remains to be seen.  But I would expect that SecDef Jim Mattis is taking a far more utilitarian view of the Armed Forces than his predecessor.

Telecommuting May Be A Fading Option

Many companies are demanding employees actually have a physical presence in the workplace.

Thoughtful and entertaining aphorisms

Some clever workplace quotes here:

1. ‘Never interrupt your enemy when he is making a mistake.’ – Napoleon Bonaparte
2. ‘It’s just a job. Grass grows, birds fly, waves pound the sand. I beat people up.’ – Muhammad Ali
3. I think Smithers picked me because of my motivational skills. Everyone says they have to work a lot harder when I’m around. – Homer Simpson
4. ‘Hard work never killed anybody, but why take a chance? – Edgar Bergen
5. ‘Oh, you hate your job? Why didn’t you say so? There’s a support group for that. It’s called EVERYBODY, and they meet at the bar. – Drew Carey
6. ‘Sometimes the best part of my job is that the chair swivels’ –Unknown
7. ‘What I don’t like about office Christmas parties is looking for a job the next day.’- Phyllis Diller
8. ‘The brain is a wonderful organ; it starts working the moment you get up in the morning and does not stop until you get into the office.’ –Robert Frost
9. ‘The easiest job in the world has to be coroner. Surgery on dead people. What’s the worst thing that could happen? If everything went wrong, maybe you’d get a pulse.’ – Denise Miller
10. ‘Going to work for a large company is like getting on a train. Are you going sixty miles an hour or is the train going sixty miles an hour and you’re just sitting still?’ – J. Paul Getty
11. ‘Son, if you really want something in this life, you have to work for it. Now quiet! They’re about to announce the lottery numbers.’ – Homer Simpson
12. ‘Work is a necessity for man. Man invented the alarm clock.’ –Pablo Picass0
13. ‘Why join the navy if you can be a pirate?’ – Steve Jobs
14. ‘Failure is not an option-it comes bundled with the software.’ – Unknown
15. ‘The higher a monkey climbs, the more you see of its behind.’ – Joseph Stilwell
16. ‘Nothing is illegal if a hundred businessmen decide to do it.’ – Andrew Young
17. There’s no secret about success. Did you ever know a successful man who didn’t tell you about it?’ – Kin Hubbard
18. There’s no business like show business, but there are several businesses like accounting.’ – David Letterman
19. There’s an enormous number of managers who have retired on the job.’  – Peter Drucker
20. ‘By working faithfully eight hours a day you may eventually get to be boss and work twelve hours a day.’ – Robert Frost
21. ‘Accomplishing the impossible means only the boss will add it to your regular duties.’ – Doug Larson
22. ‘Lisa, if you don’t like your job you don’t strike. You just go in every day and do it half-assed. That’s the American way. – Homer Simpson
23. ‘Success is relative. It is what we can make of the mess we have made of things.’ – TS Eliot
24. ‘If you would like to know the value of money, try to borrow some.’ – Benjamin Franklin
25. ‘Don’t stay in bed, unless you can make money in bed.’ – George Burns
26. ‘Artificial intelligence is no match for natural stupidity.’ – Unkmown
27. ‘If at first you don’t succeed, failure may be your style.’ – Quentin Crisp
28. ‘If at first you don’t succeed, try management.’ – Unknown 
29. ‘Aim low, reach your goals, and avoid disappointment.’ – Dilbert
30. ‘Life is like a dogsled team. If you ain’t the lead dog, the scenery never changes. – Lewis Grizzard
31. ‘The best way to appreciate your job is to imagine yourself without one. – Oscar Wilde
32. ‘All paid jobs absorb and degrade the mind.’ – Aristotle
33. ‘Beware of any enterprise requiring new clothes.’ – Henry Thoreau
34. ‘Do not underestimate your abilities. That is your boss’s job.’ – Unknown
35. ‘Right now, this is a job. If I advance any higher, this would be my career. And if this were my career, I’d have to throw myself in front of a train.’ – The Office
36. ‘Every man has a right to be conceited until he is successful.’ – Benjamin Disraeli
37. ‘You never become a howling success by just howling.’ – Bob Harrington
38. ‘Success and failure are both difficult to endure. Along with success come drugs, divorce, fornication, bullying, travel, meditation, medication, depression, neurosis and suicide. With failure comes failure.’ – Joseph Heller
39. ‘Victory goes to the player who makes the next-to-last mistake.’ – Savielly Tartakower
40. ‘Success is simply a matter of luck. Ask any failure.’ – Earl Wilson
41. ‘I’m not the smartest fellow in the world, but I can sure pick smart colleagues.’ – Franklin D. Roosevelt
42. ‘Make sure you have a vice president in charge of your revolution, to engender ferment among your more conventional colleagues.’ – David Ogilvy
43. ‘One of the symptoms of an approaching nervous breakdown is the belief that one’s work is terribly important.’ – Bertrand Russel
44. ‘I will always choose a lazy person to do a hard job, because a lazy person will find an easy way to do it.’- Bill Gates
45. ‘Good judgment comes from experience, and experience comes from bad judgment.’ – Rita Mae Brown
46. ‘If you’re not failing every now and again, it’s a sign you’re not doing anything very innovative.’ – Woody Allen
47. ‘I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.’ – Abraham Maslow
48. ‘The best computer is a man, and it’s the only one that can be mass-produced by unskilled labour.’ – Wernher von Braun

O'Bannon Fallout as College Athletes Start to Sue Their Employ... er, Colleges

Chris Spielman, standout player for the Ohio State Buckeyes and now a television analyst, is suing his alma mater, and several sports marketing and business powerhouses over the use of his likeness in advertising and marketing.  The suit seeks class status for all OSU athletes whose likenesses are being used without their consent and without compensation.

The lawsuit is worth a read just to see the extent to which these players' names and images are used to boost ticket and jersey sales among university faithful.  Here's a sample from the Complaint (emphasis added):

"5...Former OSU student-athletes, as defined under the Class herein, do not share in these revenues even though they have never given informed consent to the widespread and continued commercial exploitation of their images. While OSU and its for-profit business partners reap millions of dollars from revenue streams including television contracts, rebroadcasts of "classic" games, DVD game and highlight film sales and rentals, "stock footage" sales to corporate advertisers and others, photograph sales, and jersey and other apparel sales, former student-athletes in the Class whose likenesses are utilized to generate those profit-centers receive no compensation whatsoever. (See Exhibit A). Despite the holdings in the O’Bannon v. NCAA, 802 F.3d 1049 (N.D. Cal. 2015), and without the consent of the Class Members and/or Plaintiff, OSU has entered into various licensing partnerships that unlawfully utilize the images of Plaintiff and Class Members, by and through Defendant IMG College, and as further detailed herein. The related available content featuring likeness of former student-athletes in the Class, such as DVDs, photos, and banners, and merchandise, continues to grow in both availability and popularity, and the growth will continue to explode as merchandise continues to be made available in new delivery formats as developing technology and ingenuity permits, as exemplified by the substantial library of "on demand" Internet content now available for sale for OSU games as well as jerseys on OSU’s website."

This could be an interesting case if it goes all the way to trial.  My bet is that OSU tries hard to settle with Spielman, to retain some control over the process and the revenue stream.  Spielman has an incentive to settle as well--O'Bannon isn't controlling law in Ohio (O'Bannon is strictly a Ninth Circuit case affecting the West Coast region), and he could easily find himself on the losing end of a Circuit court split in authority.  Stay tuned.

Class Action Waivers in Employment Cases

Here's a great article by two of my California partners on the confused state of the law regarding this important issue.

Another Court Limits the Reach of Protected Concerted Activity

The full Eighth Circuit Court of Appeals just reversed an earlier three judge panel decision and the National Labor Relations Board on an important case for employers dealing with aggressive campaigns by their employees (and unions).

The facts are key here:  As part of a union organizing campaign, employees at Minneapolis area Jimmy John's sandwich shops posted notices telling customers that they were getting sandwiches made by sick employees, because the company was not providing paid sick leave.  With union support, the employees issued press releases stating that Jimmy John's employees reported to work with various contagious illnesses, including flu and strep throat, and that there were numerous health code violations at the Jimmy John's restaurants the union sought to organize.

All of this took place during the flu season.  I'm sure by coincidence.

The employer took about a month of this activity, actually met with the union leadership in an effort to stop it, and then fired six of the employees who were most responsible for coordinating the campaign, and issued written warnings to three others.

The NLRB predictably found the discipline to be illegal under 29 U.S.C. Sec. 157, because it interfered with communications with the public that were part of an on-going labor dispute. The Board determined that the postings and news releases were, specifically,  not "so disloyal, reckless, or maliciously untrue as to lose the Act’s protections."

After an Eighth Circuit panel of three judges affirmed the Board ruling, the entire Eighth Circuit reheard the case and overruled the panel.  The Court found that the Board, and the panel,"refuses to treat as “disloyal” any public communication intended to advance employees’ aims in a labor dispute, regardless of the manner in which, and the extent to which, it harms the employer (emphasis added)." The Court determined that this position was incompatible with Supreme Court precedent, and said, "Rather than employee motive, the critical question in the Jefferson Standard disloyalty inquiry is whether employee public communications reasonably targeted the employer’s labor practices, or indefensibly disparaged the quality of the employer’s product or services."

This is important guidance for employers in these cases where their work forces, usually aided by unions, attack the substance of the employer's business and customer relationships.  When such an attack is proceeding “in a manner reasonably calculated to harm the company’s reputation and reduce its income", then it goes too far.  Employers do not have to tolerate such efforts under this decision.  While only affecting cases in the Eighth Circuit's region (MN, IA, ND, SD, NE, MO, AR), the decision provides useful guidance in resisting these tactics for all courts.

That's How the Cookie Crumbles, Etc.

Do not punish acts of kindness by your employees.
Do not punish acts of kindness by your employees.
Do not punish acts of kindness by your employees.
Do not punish acts of kindness by your employees.
Do not punish acts of kindness by your employees.
Do not punish acts of kindness by your employees.
Do not punish acts of kindness by your employees.
Do not punish acts of kindness by your employees.

This Shouldn't Be News, But It Is

The Fifth Circuit Court of Appeals recognizes that employers generally are entitled to want people at work on a regular and predictable basis.

This is, or should be, obvious, but it's possible for an employer to undercut this rule--work at home policies, flexible workday arrangements, off-site management techniques--all go to the idea that someone doesn't have to be at work regularly.

The key is to enforce these flexible work arrangements in such a way that a court or jury can see where the lines of effective flexibility are drawn by the business, based on some type of rational assessment of business needs.  If you can do that, then you can enforce an attendance policy that doesn't have the same flexibility of work hours or attendance for all employees.  It doesn't hurt to try to accommodate a request for flexible work arrangements, either.  If the agreed-on work accommodations fail, the employer has direct evidence of the impracticality of the arrangement.

The Sixth Circuit dealt with this problem in the context of a telecommuting requirement as accommodation under the ADA a few years ago.  Its well-reasoned opinion is here.

ACA Retaliation Is Very Broad

A recent federal Administrative Review Board decision concerning a whistleblower under the provisions of the Affordable Care Act demonstrates how broadly this administrative panel is construing the protections under the statute. Any entity involved in the healthcare business should be aware of this standard when it terminates an employee who has complained about almost any aspect of healthcare, the provision of services, or the administration of an insurance program.
The facts are straightforward.  A Medical Center terminated a psychiatric nurse after she complained about the Center's implementation of a program in which it conducted emergency psychiatric assessments remotely rather than in person. The nurse complained that the program violated medical standards and ultimately refused to perform the evaluations. She specifically alleged violations of the Emergency Medical Treatment and Labor Act, HIPAA, and various state laws and ethical rules, as well as state  professional standards of conduct. She complained internally to anyone who would listen, as well as to outside federal and state agencies, to no avail.
After she refused to perform a remote mental health evaluation on a patient located at another hospital, the Center terminated her. The nurse filed a complaint under Sarbanes-Oxley, as well as a retaliatory discharge under the provisions of the Affordable Care Act. The Center move to dismiss both claims, and an administrative law judge dismissed the ACA claim, determining that the nurse failed to allege any activity that is protected by the statute.
The Board reversed the ALJ, determining that even where there is no specific allegation of a violation of the statute ostensibly affected by ACA, a whistleblower's claim can proceed as long as it shows some "relatedness" to the area policed by ACA. Or, to put it in the inimitable words of the Board, "to state a whistleblower claim under the ACA, Gallas need only allege activity or disclosures 'related' to ACA's subject matter."  Given that the ACA's subject matter includes the provision of health services, health insurance, Medicare and Medicaid processes, and virtually every other aspect of healthcare and its insurance coverage, it would seem virtually impossible for a hospital employee to complain about something that was NOT related to the ACA's subject matter.
For healthcare industry employers, this is a very easy standard to meet. Expect more of these cases as long as the ACA stays on the books.

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.

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.



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.

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.