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.