The NBA will start cancelling regular season games today if no agreement is reached. Once both sides cross this particular Rubicon, it might be a while before something else looms large enough to get the parties back to the table in any meaningful way.
The NFLPA and owners were smart enough to avoid this milestone, but the season is longer in the NBA, and the cost per cancelled game is arguably less. Perhaps there is still some financial calculus at work notwithstanding the jangled pace and tenor of the negotiations.
UPDATE: Looks like the NBA will lose the month of November, completely.
Monday, October 10, 2011
Thursday, October 6, 2011
Are Pets "Family Members"?
Apparently for some people in Florida. I would love to know the circumstances that triggered some constituent to get a state senator to include "threats against pets" as a basis for guaranteed leave under Florida law.
The Florida statute in question provides up to three days of unpaid leave for victims of domestic violence, as defined by the statute. If this amendment goes forward, a threat of violence against a pet would be considered a protected reason to leave a job, and one more reason that employers will have to learn more than they wish to know about the private lives of their employees.
The Florida statute in question provides up to three days of unpaid leave for victims of domestic violence, as defined by the statute. If this amendment goes forward, a threat of violence against a pet would be considered a protected reason to leave a job, and one more reason that employers will have to learn more than they wish to know about the private lives of their employees.
Does the Army Have a Discipline Problem?
You'd think so from this article and the comments below. A huge chunk of of military jurisprudence consists of what is essentially employment law, albeit in a criminal law setting. Outside of the traditional torts-assault, battery, murder, etc.-military law focuses on getting people to do their jobs, and do them properly in a coherent team.
This leads to some interesting angles on what are traditionally employment matters. For example, sexual harassment is a criminal offense under military law (Uniform Code of Military Justice Article 93, Maltreatment of subordinates). Under certain circumstances, so is adultery, along with unduly familiar relations between superiors and subordinates (UCMJ Article 134). Refusing to dress properly might get you a warning letter, or fired; in the military, it can get you tossed in the slammer.
Thus the article, and the comments following it, reflect legitimate concerns about how people do their jobs, and whether they are following the proper customs and courtesies required of all military members. I suspect that a lot of what is perceived as a breakdown in this type of discipline is a result of the heavy combat operations tempo our Armed Forces have been subjected to, particularly in the Army and the Marine Corps. Things like having your boots shined, uniforms pressed, and being properly attired are usually given less emphasis in units actively engaged in combat, for obvious reasons. That slackness tends to carry over into the garrisons, unless properly addressed by NCOs and officers.
It will be interesting to see if this perception continues as we wind down our active operations in Central Asia.
This leads to some interesting angles on what are traditionally employment matters. For example, sexual harassment is a criminal offense under military law (Uniform Code of Military Justice Article 93, Maltreatment of subordinates). Under certain circumstances, so is adultery, along with unduly familiar relations between superiors and subordinates (UCMJ Article 134). Refusing to dress properly might get you a warning letter, or fired; in the military, it can get you tossed in the slammer.
Thus the article, and the comments following it, reflect legitimate concerns about how people do their jobs, and whether they are following the proper customs and courtesies required of all military members. I suspect that a lot of what is perceived as a breakdown in this type of discipline is a result of the heavy combat operations tempo our Armed Forces have been subjected to, particularly in the Army and the Marine Corps. Things like having your boots shined, uniforms pressed, and being properly attired are usually given less emphasis in units actively engaged in combat, for obvious reasons. That slackness tends to carry over into the garrisons, unless properly addressed by NCOs and officers.
It will be interesting to see if this perception continues as we wind down our active operations in Central Asia.
Wednesday, October 5, 2011
Why the NFL Players Association Agreement Makes Sense
I attended the first meeting for football agents convened by the reconstituted NFLPA last week. After listening to the union version of events, and looking at the compensation numbers that came out of the first draft and free agent signings, it's reasonably clear that the extremely vocal critics of the deal signed between the NFLPA and the National Football League don't know what they are talking about.
I've always assumed that the union people knew exactly what they were doing when they settled the Brady litigation and the NFL agreed to end the owner lockout. Whether it was the decertification, or the realization that some real money was about to go away, the end result reflects a fairly thoughtful assessment of revenue sources, incentives for desirable behavior, economic trade offs for "quality of life" work conditions and appreciation of just how important (and lucrative) football has become in the American cultural landscape.
I won't try to recreate the full presentation here, but want to focus on a couple of major points that demonstrate pretty clearly the kind of detailed thought process that took place on both sides of the contract football.
For example, the players relinquished a claim to approximately 60% of "Total Revenue" reported by the NFL--a number subject to heavy discounting for expenses--in exchange for a lower percentage of the more all-inclusive "All Revenue". What's noteworthy about this All Revenue figure is that it is not discounted so heavily for expenses, and has a sliding scale of player entitlement, based on the level of effort expended by the clubs in earning the dollars. So, for example, players share in 55% of the media revenue, which represents very little effort by the clubs and their organizations. On the other hand, the local club revenue stream, arising from ticket sales and club specific activities, provides only 40% of its revenue to the players. This rewards clubs willing to make the extra effort to market locally, and generate more revenue off things like naming rights. Overall, the players are effectively guaranteed an average of 47% of the All Revenue number generated by league activities. If that seems like a low percentage, consider the projection that TV revenue alone should make up any total dollar shortfall--a prediction that is already being borne out in the latest ESPN contract.
In addition, the union gets out of the revenue sharing business with the league in exchange for locked-in cash spending requirements. The minimum each team can spend in cash expenditures on player compensation is 89% of the total salary cap number set by the league and union each year. This has the affect of significantly increasing the spending by certain cheapskate clubs. Teams that don't spend that money on their own players will be forced to contribute it directly to the union, which will then have the discretion to distribute these shortfalls in spending. If there's a better incentive for owners to put the dollars out, I can't think of it.
But most notable for the players, and probably most important in the long term, are the limitations on practice time and intensity that were negotiated as part of this economic package. Players had serious and legitimate concerns about overtraining throughout the football year. Off-season workouts are now limited not only in duration, but in type of activity, with only 10 authorized OTAs (organized training activities) which involve full speed work (and only limited hitting) on the both offensive and defensive sides of the ball. The collective bargaining agreement also limits the number of so-called padded practices, where players engage in full-speed or near full-speed hitting, to a total of 14 over the course of the regular season. Preseason practices are limited to 1 padded practice per day, and a total of 4 hours of practice time, only 3 of which can be in full pads.
There are a number of other concessions made by clubs on training in exchange for compensation issues by the union. But both sides realized how much money the game was capable of making and how totally damaging a strike/lockout that cost regular season games would be. In fact, both sides appear to be absolutely correct in their perceptions - NFL games were on top of the ratings for television programs in the first several weeks of the season. And remember, these are not even playoff games. It's a testament to the quality of the product, and the intelligence of the people handling the negotiations, that led to an agreement that seems rational and maintains the momentum of one of the greatest spectator sports in the country.
Hiring via Social Media
I am frequently queried by clients about the use of social media as a tool for hiring. Surfing Facebook, Linked In, or even Twitter, can frequently give a company insights into an applicant's personality, work ethic, and propensity for teamwork that will not come through in a relatively brief interview or a resume. However, companies must be aware of the pitfalls that exist when using social media information to make significant employment decisions such as hiring.
For example, it's possible that a social media site can provide too much information, in the form of an applicant's race, age, religious affiliation, or other protected category. This type of information is typically not included on an employment application for good reason--it provides a basis for a discrimination claim in the event the applicant isn't hired. In the employment discrimination world, there's no legal difference between learning that someone is a practicing Druid from reviewing an application and learning it from a Facebook site.
In addition,, social media data are often subject to reliability issues. If you have not figured out by now that everything you read on the World Wide Web isn't true, then you should not be in a position of responsibility not only at your company, but within your family. The operative phrase for Internet information: Don't Trust, and Always Verify.
Privacy is another issue, although frankly, if your hiring managers are hacking into people's private Internet sites as part of their routine practices, your general counsel should be getting ready for criminal indictments instead of EEO discrimination claims.
Smart, astute companies (such as the ones that rely on yours truly for advice) have developed written operating policies to guide their hiring managers on the use of social media sites. These policies focus searches on relevant, job-related criteria, and frequently use some type of screening mechanism to prevent protected status data from making it to a decision-maker.
Here's a link to a reasonably comprehensive guide on social media use in the hiring process (it's the PDF link with "Internet Use" in the title).
And remember, as with so many things in the employment law world, less is frequently more with respect to these types of inquiries.
For example, it's possible that a social media site can provide too much information, in the form of an applicant's race, age, religious affiliation, or other protected category. This type of information is typically not included on an employment application for good reason--it provides a basis for a discrimination claim in the event the applicant isn't hired. In the employment discrimination world, there's no legal difference between learning that someone is a practicing Druid from reviewing an application and learning it from a Facebook site.
In addition,, social media data are often subject to reliability issues. If you have not figured out by now that everything you read on the World Wide Web isn't true, then you should not be in a position of responsibility not only at your company, but within your family. The operative phrase for Internet information: Don't Trust, and Always Verify.
Privacy is another issue, although frankly, if your hiring managers are hacking into people's private Internet sites as part of their routine practices, your general counsel should be getting ready for criminal indictments instead of EEO discrimination claims.
Smart, astute companies (such as the ones that rely on yours truly for advice) have developed written operating policies to guide their hiring managers on the use of social media sites. These policies focus searches on relevant, job-related criteria, and frequently use some type of screening mechanism to prevent protected status data from making it to a decision-maker.
Here's a link to a reasonably comprehensive guide on social media use in the hiring process (it's the PDF link with "Internet Use" in the title).
And remember, as with so many things in the employment law world, less is frequently more with respect to these types of inquiries.
Tuesday, October 4, 2011
Tweety Bombs
It should be abundantly clear that employers with routine access to the Internet (and that includes those of you reading this, otherwise you wouldn't be able to read this) should have some type of social media policy in place. A proper social media policy clarifies the allowable use of things like Facebook and Twitter, serves to manage expectations and set standards for the workforce about its behavior online, warns employees about posts that will get them or the company (or both) into trouble, especially with those friendly people at the Federal Trade Commission, and generally reminds people that the Internet is typically not the place to be sharing proprietary company information.
For most companies, these policies are directed at a relatively small portion of the workforce. Typically, employees don't have time to embarrass themselves on Facebook during the workday, and no inclination to do so, anyway. However, there is at least one workforce that seems to not only embrace foolishness online, but in fact revel in it.
I'm talking about the professional athlete community. And if you think I'm kidding, see the posts from NFL receiver Bernard Berrian, for example. Especially the one where he tells a double amputee, Iraq war vet to "sit down" and shut up with the criticism. Oops (in fairness, Berrian didn't know the guy was disabled, but still).
With the announcement that the NHL has now put in place a social media policy, most of the major sports leagues (that is, if you consider the NHL a major sports league) have social media policies for the players that are noteworthy for their pickiness, and their enforcement.
For example, the NFL prohibits its players from using social media within 90 minutes of the start of a game, through the end of the postgame media interviews. Updates to a player's Twitter account by surrogates are also prohibited. Even as media tolerant as the NFL is, having players taunting each other via smart aleck tweets during a game, especially when the coaches are trying to get their attention, is simply too much. Players have been fined up to $25,000 for violating the time limit policy, and one running back was fined by his club for criticizing the team's catering choices.
Major league baseball prohibits the use of electronic communication devices on the bench, bullpen or field once batting practice starts before a game, and cell phone use in a clubhouse is prohibited 30 minutes before the game. Although content can get you in trouble, Chicago White Sox manger Ozzie Guillen was fined $20,000 with a two-game suspension for launching a post-ejection tweet tirade back in April not for his verbiage, but his timing.
Surprisingly, that repository of petty, silly rules, the NCAA, does not have a social media policy for players. It needs one, although the Association does prohibit all kinds of social media activity in the recruiting context. A number of schools have prohibited social media use by their athletes, and players have been suspended for criticizing their coaches, or making what are referred to as "insensitive" remarks on Twitter.
I would not hold these policies up as examples for the non-jock workforce sector, however. Most of these restrictions are done in the context of a collective-bargaining environment, and the NLRB continues to show particular interest in employers that limit their employees' expressiveness on social media. Just enjoy the fact that you don't have to worry about your average white-collar worker blasting out something about your workplace catering to more than 1 million followers on a day-to-day basis.
UPDATE: True to form, the NCAA institutes a major change in its recruiting policy re athlete contact by coaches, allowing unlimited calls and texts to rising high school juniors, but still no social media policy for kids in college. Too bad.
For most companies, these policies are directed at a relatively small portion of the workforce. Typically, employees don't have time to embarrass themselves on Facebook during the workday, and no inclination to do so, anyway. However, there is at least one workforce that seems to not only embrace foolishness online, but in fact revel in it.
I'm talking about the professional athlete community. And if you think I'm kidding, see the posts from NFL receiver Bernard Berrian, for example. Especially the one where he tells a double amputee, Iraq war vet to "sit down" and shut up with the criticism. Oops (in fairness, Berrian didn't know the guy was disabled, but still).
With the announcement that the NHL has now put in place a social media policy, most of the major sports leagues (that is, if you consider the NHL a major sports league) have social media policies for the players that are noteworthy for their pickiness, and their enforcement.
For example, the NFL prohibits its players from using social media within 90 minutes of the start of a game, through the end of the postgame media interviews. Updates to a player's Twitter account by surrogates are also prohibited. Even as media tolerant as the NFL is, having players taunting each other via smart aleck tweets during a game, especially when the coaches are trying to get their attention, is simply too much. Players have been fined up to $25,000 for violating the time limit policy, and one running back was fined by his club for criticizing the team's catering choices.
Major league baseball prohibits the use of electronic communication devices on the bench, bullpen or field once batting practice starts before a game, and cell phone use in a clubhouse is prohibited 30 minutes before the game. Although content can get you in trouble, Chicago White Sox manger Ozzie Guillen was fined $20,000 with a two-game suspension for launching a post-ejection tweet tirade back in April not for his verbiage, but his timing.
Surprisingly, that repository of petty, silly rules, the NCAA, does not have a social media policy for players. It needs one, although the Association does prohibit all kinds of social media activity in the recruiting context. A number of schools have prohibited social media use by their athletes, and players have been suspended for criticizing their coaches, or making what are referred to as "insensitive" remarks on Twitter.
I would not hold these policies up as examples for the non-jock workforce sector, however. Most of these restrictions are done in the context of a collective-bargaining environment, and the NLRB continues to show particular interest in employers that limit their employees' expressiveness on social media. Just enjoy the fact that you don't have to worry about your average white-collar worker blasting out something about your workplace catering to more than 1 million followers on a day-to-day basis.
UPDATE: True to form, the NCAA institutes a major change in its recruiting policy re athlete contact by coaches, allowing unlimited calls and texts to rising high school juniors, but still no social media policy for kids in college. Too bad.
Monday, October 3, 2011
Selfless Leadership
Here's a very good, concise view of leadership and selflessness, and how selfless leaders put the needs of their subordinates first, for the good of the organization. Not surprisingly, it's written by an Army officer.
http://www.washingtonpost.com/blogs/guest-insights/post/leadership-character-the-role-of-selflessness/2011/04/04/gIQALaziTI_blog.html
One of the most enduring lessons I learned as a junior officer was also a simple one--when in command of a group, you go to the end of the chow line, and let everyone else eat first. Would that more managers, CEOs, and political leaders kept this basic principle in mind.
Check out the rest of the author's leadership series here: http://www.washingtonpost.com/blogs/guest-insights/post/leadership-character-a-six-part-series-by-west-points-col-eric-kail/2011/04/04/AGSg1DPH_blog.html
http://www.washingtonpost.com/blogs/guest-insights/post/leadership-character-the-role-of-selflessness/2011/04/04/gIQALaziTI_blog.html
One of the most enduring lessons I learned as a junior officer was also a simple one--when in command of a group, you go to the end of the chow line, and let everyone else eat first. Would that more managers, CEOs, and political leaders kept this basic principle in mind.
Check out the rest of the author's leadership series here: http://www.washingtonpost.com/blogs/guest-insights/post/leadership-character-a-six-part-series-by-west-points-col-eric-kail/2011/04/04/AGSg1DPH_blog.html
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