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.