Great expectations? Let’s tip off with reasonable expectations

June 27, 2016 - by: David Kim 0 COMMENTS
David Kim

Expectations are a funny thing. They can be good in that they set forth an objective measure for expected performance, goals, and standards of conduct. On the other hand, they can turn bad if they are unreasonable or prone to differing or subjective interpretations.

Watching the NBA draft last week, I was struck by how these young men (most of whom are still teenagers) are immediately saddled with expectations: expectations from fans, expectations from the team and its front office, expectations from NBA analysts and media members, and countless others. Without even having played a second of professional basketball, Ben Simmons and Brandon Ingram (who went first and second in the draft to PhilaBasketball going through the hoop at a sports arenadelphia and Los Angeles, respectively) have already been anointed the saviors of 76ers and Lakers basketball for the future. My Boston Celtics selected Jaylen Brown with the third overall pick and were almost universally criticized, by fans and pundits alike, for “reaching” for Brown rather than selecting a better talent at that spot or consummating a trade for the pick. And on and on the analysis went with every subsequent player selected.

Whether it’s the NBA or any other professional sport, you always hear of the number-one-overall picks who ended up being busts and never amounted to anything professionally. With respect to the NBA, these names include Greg Oden, Kwame Brown, Michael Oliwakandi, and the list goes on. Then there are those generational talents with unquestionable Hall of Fame credentials such as LeBron James, Shaquille O’Neal, and Tim Duncan, to name a few. But what about those who are very good, solid NBA players?

Take player A,  for example. Last year he averaged 21.4 points a game and 8.4 rebounds and had a Player Efficiency Rating (or PER, a statistic that attempts to boil down a player’s overall contribution into one number) of 22.22. He was injured for a good portion of last year, but these numbers are in line with his statistics the prior year as well. Player B averaged 21.2 points a game and 6.8 rebounds and had a PER of 26.11 (higher than player A due to exceptional defensive performance).

Player A is Blake Griffin, the number one overall pick in 2009. Player B is Kawhi Leonard, the 15th overall pick in 2011. Both are undoubtedly great NBA players. Yet, Leonard is considered a “steal” at his draft slot, having outperformed expectations, as well as a future cornerstone of the Spurs (or another team if he bolts when he is a free agent). Griffin is by no means a disappointment and is still one of the top players in the game, but it can be legitimately argued that Leonard is the better overall player. Toss in the fact that the reigning two-time league MVP Stephen Curry was selected six spots after Griffin, and it’s no surprise that Griffin, despite putting up gaudy numbers, has been criticized for not meeting certain lofty expectations.

What employers can learn from NBA’s approach to expectations

Expectations, whether right or wrong, set the baseline for every relationship, whether it be in the realm of professional athletics or in the context of an employer and an employee. Even if an employee doesn’t have an actual written agreement, expectations are often set forth in the company’s policies, manuals, and procedures. It goes without saying that employers need to ensure that these written policies are clear, unambiguous, appropriately disseminated, and updated as needed.

An employee’s expectations, however, are often reinforced through the employee’s communications with managers, supervisors, and/or human resource representatives as well as through the course of conduct with the employer. It’s not enough that the written policies and procedures provide for a specific type of mechanism. It’s equally important that employers train supervisors, managers, and HR people on how to implement the written policies in an objective and consistent manner and that these individuals are aware of the proper way to handle an inquiry or question about company policies, benefits, or procedures.

Not only does this consistent treatment assist a company in defending against applicable federal and state discrimination, retaliation, and leave laws, but employers should be aware that in some states  a duty of good faith and fair dealing exists in connection with every contract. In some states this contract can simply be based on the employment relationship itself or on handbooks or other written policies (particularly if there is  no valid disclaimer). In such circumstances, an employee can file a claim based on the reasonable expectation of some benefit (whether it be through written policies, communications with supervisors, or even the general course of conduct with the employer), including for alleged promised compensation, bonus, promotion, or other employment-related benefits.

Therefore, employers with clear and consistent messages about their company policies greatly minimize the risk of claims based on an employee’s purported reasonable expectations. So it’s important that you make sure everyone in your operation, from management on down, is on the same page and that you also consider implementing procedures or spot-checks to identify any inconsistencies before they become a problem. And for all you sports fans out there, let’s try to keep our expectations as reasonable as possible, particularly when it comes to these young draftees and their potential immediate impact. If all else fails, there’s always next year.

Westeros might have benefited from recent trends in paid family leave

May 03, 2016 - by: David Kim 0 COMMENTS
David Kim

Game of Thrones, one of my favorite shows, most recently returned for its sixth season. Don’t worry, no spoilers here if you haven’t seen the first couple of episodes of this season. However, if you haven’t noticed, one of the recurring themes for characters in Game of Thrones appears to be daddy issues. In fact, in virtually every circumstance, a major character’s flaws, insecurities, or other personality traits can easily be traced to the relationship with one’s parents, specifically the father. Here are some examples:  Parents want to spend time with baby read more…

Andrews and Hogan verdicts demonstrate disgust against invasion of privacy

March 21, 2016 - by: David Kim 0 COMMENTS
David Kim

Just this month, two large jury awards were given to celebrities in their respective civil suits alleging amongst other things, invasion of privacy:

  • First, FOX sportscaster Erin Andrews was awarded $55 million in her lawsuit against a Nashville hotel and stalker after she was secretly videotaped in her hotel room in 2008. The jury found that the hotel chain was 49 percent at fault and held them liable for approximately $27 million.Man Watching through window blinds
  • Then last week, Terry Bollea, known publicly as Hulk Hogan, was awarded $115 million in damages in his invasion of privacy case against Gawker.com over its publication of a sex tape involving Hogan. The Florida jury’s award consisted of $55 million for economic harm and $60 million for emotional distress and doesn’t even include punitive damages, which will have to be established separately.

Although the respective defendants in these two cases still have the opportunity to appeal, the fact remains that these huge awards demonstrate the juries’–and likely the overall public’s–disgust with invasion of privacy. Of course, the salacious nature of these videos, which involve the most intrusive and intimate aspects of an individual’s life, surely contributed to the results. That being said, everyone, including employers, should note the importance individuals place on their own privacy and ensure that one does not unjustly intrude on someone else’s sacred private space.

This doesn’t mean that employees have an unfettered expectation of privacy. Typically, state laws determine privacy rights by determining whether employees have a reasonable expectation of privacy. Therefore, it’s incredibly important for employers to have specific and detailed privacy policies that set forth that certain communications, and information utilized on employer’s computers and servers, can be monitored by their employers so as to eliminate an expectation of privacy about certain matters.

In addition, employers should be aware of any state-specific laws that prohibit them from accessing certain personal information of their employees. For example, approximately 23 states have enacted some sort of social media privacy law, mostly prohibiting employers from requesting usernames and passwords, or other type of access, to an individual’s social media accounts. Of course, exceptions apply in some states, including when employees access their social media accounts at work, and access to pertinent information on such accounts could be discoverable in any pending litigation. As a further example, the Electronics Communications Privacy Act places certain limitations on an employer’s right to monitor its employee’s telephone usage while at work, and certain states require that all parties to a monitored phone conversation receive prior notification of the monitoring.

In addition, employers should ensure they have robust policies and procedures in place, which they follow, setting forth what reasonable expectation of privacy employees can have in the workplace. While the jury awards in the Andrews and Hogan cases are extreme examples, they serve as a warning that the general public takes invasion of privacy very seriously and that a violation could have dire consequences for the offender.

What #OscarsSoWhite teaches us about disparate impact

January 25, 2016 - by: David Kim 0 COMMENTS
David Kim

I have to admit that I’m just not a big fan of awards shows, and that includes the Academy Awards. Don’t get me wrong, I love movies. But I find awards shows dull and way, way too long. If something extremely funny happens, or someone makes an incredibly touching or socially impactful speech, I can frankly watch it the next morning on the Internet.  OscarSoWhite

Yet, despite my lack of interest in awards shows, it’s hard to ignore the controversy surrounding the most recent Academy Award nominations announced a couple weeks ago. For the second year in a row, all 20 contenders in the acting categories are Caucasian. Last year, this resulted in the trending hashtag #OscarsSoWhite, which not surprisingly has been resurrected again this year. There was of course immediate backlash to the nominations. Numerous individualsboth white and of colordecried the lack of diversity in not only the nominations, but in the industry itself. Certain celebrities made public their intention to boycott the awards. It has become somewhat of a social media frenzy as everyone has chimed in with their opinion.

Some corners place the blame squarely on the Academy, for its own lack of diversity in its membership, and therefore the lack of nominations for people of color. Others place the blame on the industry itself, and that the lack of diversity at the top of studios and other positions of power results in a dearth of movies with diverse casts and diverse issues being produced.  Most believe it’s a combination of the two as well as other preconceived notions and stereotypes about what the general public will pay to see.

Not being a Hollywood insider myself, I can’t definitively provide an answer as to the root of the issue. But I can certainly understand the concept of stereotypes and preconceived notions affecting a studio’s judgment as to who should play a certain role. As an Asian-American, I’ve unfortunately become accustomed to the fact that when I see an Asian actor prominently featured in a domestically produced film, he or she will most likely be good at martial arts, or be some villain involved in an dangerous Asian gang, or both if possible. Otherwise, it will be a minor role as an asexual academic or scientist. That’s why it’s refreshing for someone like me to watch a character like Glenn from The Walking Dead.

As in the comics the show is based on, Glenn is Asian and sort of just a normal guy, which I can relate to. Specifically, Glenn is Korean (as am I), he doesn’t know martial arts (I don’t either), he seems smart but was  just a regular Joe delivering pizzas before the zombie apocalypse (I love pizza), he’s got a wife/fiancé [he proposed but the show hasn’t shown any wedding] and they’re having a kid together (I have a wife and kids), and he’s a lead role in one of the most watched shows on TV (I dream about being this sometimes). The fact that the comics, and then the show, recognized that this prominent character could be portrayed by someone Asian, despite the fact that the character wasn’t written with stereotypical Asian characteristics, is rather refreshing to someone like me. So I can understand the frustration that other minorities have regarding the lack of diversity in movies today.

In response to the criticism, the Academy announced it would be taking additional and affirmative measures to increase the diversity in its membership. President of the Academy Cheryl Isaacs, who is African-American, announced a variety of new measures that they anticipate will double the number of women and diverse members of the Academy by 2020. President Isaacs stated in her announcement that “the Academy is going to lead and not wait for the industry to catch up.”

These are words that every employer should keep in mind. In other words, be proactive. Anyone who is reading this can agreewhether or not you believe there were illicit motivations that resulted in the nominations, there is no dispute that 40 acting nominations over two years to all Caucasian individuals is going to cause some questions about whether diversity is being represented.

For employers, this is known as disparate impact. Employers can be liable for discrimination against employees on theories of disparate impact or disparate treatment. We all know what disparate treatment is– the intentional, or proven intentional, discriminatory treatment of an employee. Disparate impact, on the other hand, refers to policies, practices, rules, or other systems that appear to be neutral but result in a disproportionate impact on protected groups. Simply put, disparate impact is a way to demonstrate employment discrimination based on the impact of an employment policy or practice rather than the intent behind it.

If the Academy were an employer and the actors in every film produced were its employees, there would be a sufficient basis to contend that the nomination process, policy, and procedure had a disproportionate impact on protected groups, evidenced by the fact that all 40 positions were filled by Caucasian employees. This isn’t to say that the Academy would be automatically liable, but this fact would be enough to bring such a claim, thereby requiring investigation and discovery into all aspects of the process, an expensive litigation to defend even if ultimately successful.

As a result, employers should not only regularly review their policies and procedures but also conduct an analysis as to whether there are any disparate impacts in their workforce, whether it be hiring, termination, promotion, pay rates, or any other aspect of an employee’s employment. Obviously, the size of the employer’s operation will dictate how often, or how widespread, such an analysis needs to be. By acting proactively, the employer can determine whether there are any flaws in their own procedures and, if there are issues, make the appropriate changes before any significant problems arise.

Alcoholism and how USC may have violated ADA by firing Steve Sarkisian

October 19, 2015 - by: David Kim 8 COMMENTS
David Kim

On October 12, 2015, Steve Sarkisian was fired as  head coach of the University of Southern California (USC) football team. While USC contends Sarkisian was fired for “cause,” there is no question that his alcohol-related behavior led to his termination. Whether the termination was or was not properly for “cause” is relevant, in part, because it would likely determine whether USC would have to pay the remaining three years of his five-year contract. Whether the termination was lawful under the Americans with Disabilities Act (ADA), or analogous state law statutes alcoholismprohibiting discrimination on the basis of disability, is another question. And due to the high public profiles of the institution and the individual involved, this may be a question that is never entirely answered.

Back in August, video emerged of a clearly intoxicated Sarkisian at a USC pep rally, slurring during his speech and using profanity. The coach publicly apologized, contending that his behavior was the result of mixing alcohol and certain undisclosed medication. While Sarkisian denied having a drinking problem, he contended he would go to “treatment” to seek help. It appears Sarkisian neither sought help nor ceased his alcohol consumption. Reports last week emerged from sources that the coach “showed up lit to meetings again” and was told to leave the premises on Sunday. That same day, it was announced by USC Athletic Director Pat Haden that Sarkisian was asked and had agreed to take an indefinite leave of absence for his condition. On the next day, he was officially fired.

Well, that leave of absence turned into a termination real quick, huh?

Since Sarkisian’s termination, further reports have leaked suggesting that this has been an ongoing issue with Sarkisian, not only at USC, but that there was evidence of alcohol-related abuse during his prior head-coaching stint at the University of Washington. Therefore, it’s possible that the coach has had a prolonged alcohol abuse problem and one that has been known by USC officials for some time.

Alcoholism is considered a disability under the federal ADA and analogous state disability laws. Therefore, employers cannot discriminate on the basis of someone’s alcohol-related disability and must engage in the interactive process and provide a reasonable accommodation if necessary. Obviously, employees cannot simply come to work drunk and avoid disciplinary action by claiming reliance upon alcohol. And employers are permitted to have policies expressly prohibiting alcohol in the workplace or else employees will face harsh disciplinary action up to and including termination.

In addition, an individual who suffers from alcohol dependency still must be able to perform the essential job functions, and those include but are not limited to adhering to the company’s attendance policy and work performance standards. The hardest part really comes down to what type of accommodation the employer can offer that is reasonable, which is based in great part on the situation at hand, particularly the employee’s position and applicable duties. One common form of accommodation with respect to alcohol dependency is an unpaid leave of absence while the employee seeks treatment or other counseling. Frankly, it would be a red flag if an employer that grants an individual a leave of absence (for any reason, let alone a disability) then decides to terminate that same individual shortly after the leave was given. But that’s exactly what USC did.

Therefore, it will be interesting to see what Sarkisian does going forward, either during or once he has completed his rehabilitation treatment. He could choose to fight and contend that his termination while on a leave of absence for a disability was unlawful. Of course, he would have to address every single detail regarding his alcoholism in a public lawsuit, potentially scare off colleges who may wish to hire him for a coaching job in the future, and risk the fact that a lawsuit could take years and he recovers nothing. He could simply move on with his life, which would be forfeiting potentially large sums of money either in the form of damages (or pursuant to what may be owed under him by contract), seek treatment, and hope that another coaching opportunity presents itself at some point. Of course, he also could reach a private settlement with USC as well. It’s a tough decision for Sarkisian, particularly because of his high-profile occupation, and I would surmise some sort of private agreement will be achieved to spare both parties further public embarrassment.

Most employees, however, don’t have the public concerns that someone in Sarkisian’s position has, and would likely file a lawsuit if terminated in the same manner as the coach. Therefore, employers should tread carefully with respect to issues related to alcohol dependency and understand that while inappropriate behavior or failure to perform the essential job functions isn’t excused by an employee’s alcoholism, the employer still must evaluate whether a reasonable accommodation is appropriate and can be provided.

 

Need to learn more about hot to implement a legally sound and enforceable workplace drug and alcohol policy? Drugs and alcohol are an ongoing and serious concern for safety managers and HR, as substance use and abuse can impair safe work performance and descrease productivity. Prescription pain killers present serious challenges, even when used according to a doctor’s direction.  And in places where marijuana use has been legalized, employers must figure out how to balance workplace safety against workers’ rights. Do your supervisors know how to evaluate employees who may be under the influence? Do your policies and programs take into account laws like the ADA and FMLA? Join us on November 9 for the 90-minute BLR webinar Drugs and Alcohol in the Workplace: Effective and Legal Ways to Reduce Workplace Safety Risks for an in-depth look at how to develop and implement a fair and effective program to reduce the impact and associated costs of prescription and illegal drugs and alcohol in the workplace. For more information or to sign up for the webinar, go to http://store.hrhero.com/drug-alcohol-110915.

#damonsplaining — Matt Damon can do it, but you can’t

October 05, 2015 - by: David Kim 0 COMMENTS
David Kim

Actor Matt Damon sure has had an up and down past few weeks. First, Damon made some questionable comments on HBO’s Project Greenlight, a documentary developed by DSorryamon himself (along with some famous friends including buddy Ben Affleck) focusing on first-time filmmakers being given the chance to direct a feature film. When African-American producer Effie Brown asked the judges to use caution in selecting a directing team for a film project under consideration, pointing out that the only black person on screen was a “hooker who gets hit by her white pimp,” Damon stated that in “talking about diversity” it should be done in the casting of the film, not the casting of the show [i.e., film-making team].” Damon later stated that this was a film-making competition and the job should be attained “entirely upon merit” and not other factors.

Later, in an interview with Observer Magazine to promote his new film The Martian, Damon stated his belief that one is a better actor the less people know about you, and that “sexuality is a huge part of that.” Damon further noted “it’s tough to make the argument that” Rupert Everett, an openly gay actor, “didn’t take a hit for being out” despite being a handsome and classically trained actor.

Sorry, Matt, but I don’t think people liked them apples. Whether you think Damon’s comments were taken out of context or simply misguided, the fact is that Damon took quite a hit in the media. People took offense to Damon lecturing an African-American woman about diversity and (perhaps unwittingly) contending that race and merit are mutually exclusive. As a result, #damonsplaining became a twitter sensation, defined partly as talking down to a person of color to explain something to them about their own race or culture. He also was lambasted for contending that an actor’s sexuality should remain a mystery for purposes of their art, which causes gay actors to live a secretive life (as actors would likely be assumed straight if they said nothing), denies other gay people a role model to look up to, and perpetuates the fact that LGBT individuals should be shamed to suffer in silence.

As predicted, Damon immediately went on the apology tour. He issued statements and made appearances apologizing for his comments as being misunderstood and advocating the continued discussion of diversity. And then his movie, The Martian, debuted this past week with a massive $55 million opening weekend. I’m guessing Damon is going to be all right.

Employers need to be put in a position to do damage control before the you-know-what hits the fan, like Damon was able to do. In some cases, employers, and their managers, often are given the opportunity to tell their story or state why a comment was misunderstood only after an employee has filed a charge or lawsuit for discrimination. And by this point you’re dealing with increasing litigation defense costs and worries of which side a juror may take in such a sensitive dispute.

The more proactive approach is to ensure you have a robust, written, and clear internal procedure with respect to employee complaints and/or open door policy that is communicated, and reinforced, to all employees. And ensure that all managers/supervisors are well-trained on these procedures and how to handle them. This way, when any employee goes rogue, embarks on a #damonsplaining tangent, or even makes a statement they believe is an innocent remark, any offended party can use these internal procedures and the company can resolve the dispute in a timely and efficient manner that eliminates future issues, including diminishing the likelihood of a lawsuit.

Now please forgive me, but I have to go and check what times The Martian is playing this weekend.

Restricting employers’ use of credit checks and why Mr. Robot agrees

August 28, 2015 - by: David Kim 0 COMMENTS
David Kim

If you’re like me, you don’t necessarily equate the USA network with riveting and innovative television. While the network has respectable ratings, I can’t help but tune out when I see a commercial for Suits, Graceland or Royal Pains (apologies to those fans of the showI believe you, I’m sure they’re good). In fact, although many have noted the increase in quality TV programming, accolades have been reserved for those such as HBO, AMC, and Netflix, which have pushed the limits of what a television show could be in our collective minds, while simultaneously providing entertaining and complex stories. Now, it appears USA has decided to the join the party. USA’s Mr. Robot is fast becoming one of my favorite shows, and as evidenced by the widespread critical and popular acclaim it has received, it is clear I’m not the only one (97% rating on Rotten Tomatoes if you’re into that sort of thing). Credit Report (2)

Mr. Robot revolves around Eliot Alderson, a brilliant yet flawed individual. Eliot works as a security engineer at Allsafe, a cybersecurity company. However, Eliot also is incredibly adept at hacking (social media accounts, bank records, personal information, etc.) and uses those skills to not only learn about people, but often to act as a cyber-vigilante by protecting those he cares about or reporting bad people anonymously to the authorities. It is not surprising this is the only way Eliot can connect as he struggles mightily with social anxiety disorder, clinical depression, paranoia, and delusion.

Eliot despises “E Corp” (who he refers to as Evil Corp.), a global conglomerate with its hands in seemingly everything. E Corp. also happens to be Allsafe’s biggest client. While there are a multitude of characters and storylines, the main storyline in season 1 revolves around a mysterious man who Eliot dubs “Mr. Robot” (due to a shirt the man wears bearing that moniker), played by Christian Slater (yes, that Christian Slater). Mr. Robot is the leader of a hacker group called “fsociety,” has been observing Eliot, and wants to recruit him to the team.

Their first missionto destroy and delete all of E Corp’s debt records. According to Mr. Robot, E Corp. owns 70 percent of consumer debt, and by erasing all debts and mortgages, it could create “the single biggest incident of wealth redistribution in history.” With Eliot’s disgust of E Corp. fairly evident, it’s no surprise that his interest is piqued. Let’s just say there are a lot of twists and turns from there.

To be fair, Mr. Robot’s thematic elements are likely to be geared more to the introspective and existential as the series progresses. Yet, while the concept of eliminating debt isn’t new (remember Fight Club), there is a focus in season one on putting everyone on equal footing and out from under the hand of the controlling majority. Debt forces people to continue working the same undesirable job, to be a spoke in the financial wheel that favors the wealthy, and causes them to eventually “die in debt doing things they never wanted to do.”

In our world, certain legislators feel that debt even precludes the attainment of employment to begin with. Just last week, the New York City Council passed the Stop Credit Discrimination in Employment Act, which amends the NYC Human Rights Law to prohibit most employers from making employment decisions based upon an employee’s or applicant’s consumer credit history. Credit reports permit employers access to an individual’s financial history, including credit use, bankruptcy, and credit inquiries.

Proponents of the NYC law have stated that an employer’s ability to utilize credit reports in making employment decisions disadvantaged minorities, low-income workers, and victims of domestic violence and had no real correlation to job performance. As with any law, numerous exceptions exist. For example, with respect to positions related to law enforcement, positions where the individual is required by law to be personally bonded and positions with signatory authority over third party funds/assets valued over a certain amount, amongst others, can still require credit reports.

It is expected that the bill passed by the council will be signed by Mayor Bill de Blasio into law, and will then take effect 120 days after enactment. At that time, NYC will join a growing number of jurisdictions, including but not limited to California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont, and Washington, that restrict an employer’s right to obtain or use an individual’s credit information in making employment decisions. However, NYC’s bill is considered one of the broadest in the country as it does not include a broad exemption for all positions handling money.

Employers are reminded to review their local and state laws with respect to the use of credit checks before performing such checks on certain applicants and employees. Failure to do so could cause employers to be subject to a variety of damages under the applicable laws. While there still remains a question as to whether Mr. Robot and his gang of hackers will be successful in their attempt to eliminate debt from the equation, unfortunately for most of us in this world debt still exists. And unfortunately for employers, the existence of debt doesn’t mean you necessarily are permitted access to it.

Jenner, Dolezal, and the transformative debate

June 22, 2015 - by: David Kim 0 COMMENTS
David Kim

The names Caitlyn Jenner and Rachel Dolezal have been inexorably intertwined over the last couple weeks by the mainstream media and social pundits, including a debate as to whether these two individuals’ circumstances should even be intertwined because they represent entirely different discussions regarding social justice and identity. Identity Crisis

As most know, Caitlyn Jenner, formerly known as Bruce Jenner, came out publicly as transgender and her transition has been a fairly high-profile affair. Other than negative reactions from a select faction of people, Jenner has received mainly overwhelming support. Not so for Dolezal, a former head of the Spokane, Washington, NAACP chapter when it was recently revealed she is actually Caucasian but claims to identify as black. Dolezal has received criticism from all-comers regardless of race, age, or political or social affiliation.

Certain anti-LGBT proponents have used the word “transracial” to conflate the situations between Dolezal and Jenner and create a comparison between the two. To some, to conflate the two is to deny scientific evidence that there is a biological origin for transgender identities and minimize the legitimacy of transgender issues. In addition, the true transracial community has responded that the term transracial is actually meant for adoptees raised in a family of a different race, not individuals who may identify as a race other than that given at birth. Therefore, to call Dolezal transracial is unfair to those who are truly transracial and openly addressing various social constructs in their lives as a result of this upbringing.

Others believe that Dolezal’s identification as black is offensive to African-Americans as a whole. As a minority myself, I can certainly understand that viewpoint. And for most people, one of the biggest issues with Dolezal is deception: the belief that she purposefully concealed her heritage and misrepresented various aspects of her life.

But what if someone was up-front about addressing issues with respect to their own racial identity and the reasons for them? Is this something that should summarily be dismissed as ridiculous or is there further social commentary and discussion to be had? I admit I don’t necessarily know the answer. What I do know is that every social issue deserves some sort of debate, so that every aspect of the argument can be understood from all angles.

Take transgender rights as an example. Not long ago, the concept of an individual identifying with a different sex was also misunderstood and summarily dismissed. Look around now. The “T” in LGBT is now just as much part of the conversation as the rights of lesbians, gays, and bisexuals. Just last week, Entertainment Weekly had an LGBT issue, with the cover title of “America’s Transformation,” and which discussed the prevalence and importance of transgender characters and issues in mainstream pop culture.

If social change is slow, then legal reform is downright glacial. Only in recent history have laws begun to protect claims by transgender individuals. In 2012, the EEOC’s (Equal Employment Opportunity Commission) decision in Macy v. Dep’t of Justice represented the agency’s position that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination on the basis of sex. Subsequent EEOC decisions have echoed this sentiment, and the EEOC’s field memo issued in February 2015 reiterated that workers are protected under Title VII of the Civil Rights Act of 1964 from employment discrimination based on gender identity, as well as sexual orientation. In addition, a number of state laws explicitly provide that their applicable discrimination statutes also cover discrimination against transgender individuals.

So is racial identity also deserving of debate? Or is it simply an incomprehensible concept? Whatever the answer is, there is no question that the circumstances surrounding Dolezal’s being revealed as Caucasian and the circumstances surrounding her purported deception probably do not make a good first impression for those delving into this topic for the first time. From a legal perspective, it is difficult to fathom how such a construct could be implemented, even if it were socially accepted. Frankly, one of the first prerequisites to a race discrimination claim is that you must be a member of that protected classhow would that square with an individual who is not a member of the protected class who identifies as a member of a protected class? Or even vice versa?

If there is good news, at least from an employer’s perspective, it’s that racial identity will have no bearing on the law anytime soon, if at all. For the time being, Dolezal’s situation, and the question of racial identity itself, is strictly for social debate, and that debate will likely create even more opinions on this issue in the coming weeks and months.

But remember, if you hear the winds of change blowing on racial identity or any other type of social issue, just be aware that legal change may be far behind, but it will catch up eventually.

Ode to Letterman: EntertainHR’s own Top 10

June 06, 2015 - by: David Kim 0 COMMENTS
David Kim

David Letterman, a late-night staple for 33 years, aired his final episode on May 20, 2015. Whether you preferred Johnny, Leno, Conan, Kimmel, or Fallon, no one can deny Letterman’s impact on pop culture, and the fact remains that he retires as the longest-serving late-night talk show host in American television history. While there were certainly some missteps along the way (the “Oprah…Uma” Academy Awards debacle undoubtedly qualifies), Letterman’s comedic and late-night chops cannot be denied. CBS Late night show entrance sign

As Letterman’s career winds down, our EntertainHR blog approaches just its one-year anniversary next month (after many years of chronicling the TV show The Office in Ford Harrison’s earlier blog “That’s What She Said”). Therefore, in homage to Letterman, and in the vein of shameless self-promotion, we contributors to EntertainHR have decided to regale our readers with a top 10 list.

Following are the top 10 EntertainHR posts of the past year in terms of viewership. If you haven’t had a chance to read them, just click away below.

Drumroll please….

10. “Pay the lady.” The glitz, the glamor, the Oscars! That, plus a public outcry for a very important issue, wage equality for women. Who said acceptance speeches are boring?

9. “We fixed the glitch.” Because never having seen the movie Office Space is downright un-American. And because not confronting your problem employees can lead to a Milton Waddams-type burning down the building and retiring to the islands with the company’s money. Feel free to check out EntertainHR’s companion piece “I believe you have my stapler,” written by yours truly. Although not in the top 10, I’m including it because frankly I’m writing this post and can do what I want.

8. “Marky Mark and the Convicted Bunch.” The use of an employee’s criminal history in employment decisions is a hot issue at the moment, and jamming out to Good Vibrations by Marky Mark and the Funky Bunch will never get old. So long as you’re bringing forth the rhythm and the rhyme.

7. “Seahawks’ Lynch follows NFL policy, adds to absurdity of Super Bowl media day.” After the year the NFL had, isn’t anything about the league and its bungling of its own policies or procedures a must read at this point?

6. “A word for the EEOC from Bob Kazamakis*.” Because employers love to read about a U.S. Supreme Court decision in which the Equal Employment Opportunity Commission (EEOC) loses. And because we’re all wondering the same thing, who the heck is Bob Kazamakis?

5. “Blacklisting.” It’s interesting to create (nondiscriminatory) typecast descriptions for certain categories of employees. It’s more revealing (or disturbing) that these generalities can oftentimes turn out to be true. Plus, I hear a lot of people watch The Blacklist.

4. “BFOQ FTW.” OMG. This post on BFOQ had me LMAO and ROFL. Employers, CYA and make sure you have valid defenses, and then IMHO you will have NP. TTYL.

3. “Workaholics: Drug testing.” Take a funny show that revolves around three mischievous college dropouts working at a telemarketing company, sprinkle in illicit drug and alcohol abuse in the workplace, and bam–you’ve got #3 with a bullet.

2. “I’m Ron ******* Swanson.” Nothing says read me more than “*******” in the title. Even if I wasn’t a huge Parks and Recreation, and Ron Swanson fan, I’d be intrigued. So should you.

1. “It’s never easy, but Oprah delivers layoff news in person.” How to conduct a reduction in force to ensure compliance with applicable law is important to every employer. But let’s be honest. Oprah + massive layoffs = surefire number 1. To quote Ron Burgundy, “it’s science.”

Deflategate and the power of external investigations

May 12, 2015 - by: David Kim 0 COMMENTS
David Kim

After more than three months of waiting, we finally got the investigative report regarding the New England Patriots’ “Deflategate” incident that occurred during the NFL’s AFC Championship Game earlier this year. Was it worth the wait? Was the NFL’s subsequent punishment just? It’s pretty clear it depends on whom you ask.16350680255_56244e827d_o

Authored by Ted Wells and his team from the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, the investigative report (the “Wells Report”) comes in at a hefty 243 pages (with exhibits). Those who question the Wells Report point to inconsistencies and unsubstantiated conclusions that would undermine the report’s finding that “it is more probable than not” that two Patriots personnel were involved in deliberately deflating footballs and that “it is more probable than not” that quarterback Tom Brady was “at least generally aware” of these two individuals’ actions. Others find that enough circumstantial evidence exists (in the form of text messages, statements, and certain scientific data) to make such a determination.

The only thing that is absolutely clear is that the contents, findings, and conclusions reached in the Wells Report will continue to be debated for weeks and months to come. Which is why I’m not going to attempt here to delve into the specifics of the Wells Report, but rather let you soak in the report for yourself and any subsequent analysis. And frankly I don’t have close to enough space to cover all the issues.

What is more interesting to some was how the NFL was going to react. In essence, the Wells Report of “more probable than not” violations mirrors the NFL’s Policy on Integrity of the Game and Enforcement of Competitive Rules, which provides that the standard of proof to find a violation is a preponderance of the evidence. Therefore, the Wells Report essentially gives the NFL the basis to say a violation of its policy has occurred and therefore affords it the right to discipline the parties involved. While people can question the accuracy of the Wells Report all they want, there is no question that the NFL has the right to seek to enforce discipline based on the report’s findings. The only question was how much discipline the NFL would seek. Well, we found out just yesterday. How about a $1 million fine to the Patriots organization (the highest ever assessed by the NFL to a club), the loss of two draft picks (including a first rounder next year), and oh yeah, suspension of Brady for the first four games in the upcoming season.

And isn’t this the reason the NFL hired an outside law firm to conduct this investigation? The NFL has pretty much botched every internal investigation it has done in its turbulent past year (particularly with respect to domestic violence issues) and frankly needed the cover to claim it relied on an external and independent investigation. While one can debate whether this was an independent investigation (due to certain historical relationships), there is no doubt that this fairly large punishment would never have been levied by the NFL unless it could point to the Wells Report as support.

Employers often grapple with this same decision. While many employment-related disputes and complaints are internally investigated, and hopefully the company has provided training regarding how to properly conduct internal investigations, there are situations that may call for company leaders to hire an outside entity, particularly a law firm, to conduct an investigation for them. Perhaps an allegation involves a high-level employee, and an external investigation is needed to demonstrate and ensure impartiality. Perhaps a sensitive or complex situation needs an investigation that the company feels its current employees are not qualified to handle or that requires an investigation completely thorough enough to ensure no blow-back in the future. Of course, the cost of hiring an outside firm to conduct an investigation can be expensive. In addition, privilege issues can be extremely complex so the company may want to consider not hiring its normal litigation counsel to conduct certain investigations, or else risk the inability of using its normal counsel in any related litigation.

The positives, however, are that the company can demonstrate objectivity and show that they took a complaint or allegation seriously by hiring an independent third party to investigate. Reliance upon such an investigation will permit the employer to more effectively defend against discrimination and harassment claims, for example, and show that they appropriately responded once they were aware of any workplace misconduct. In certain cases, the existence of such a report and the employer’s reliance on the external report in making a reasonable business decision can result in dismissal of the case at the outset or make the plaintiff’s counsel’s views of settlement more aligned with yours.

While the Wells Report, and the subsequent NFL discipline, will continue to be hotly debated and analyzed, this is due in great part to the public nature of the individuals involved and the public realm and media frenzy in which the NFL operates. Despite this debate, tellingly, New England Patriots owner Robert Kraft had previously issued a statement noting his disagreement with the findings but ultimately stated that “knowing there is no real recourse available, fighting the league and extending this debate would prove to be futile . . . [we will] take the appropriate actions based on those findings as well as any discipline levied by the league.” Sure, after the discipline was handed down yesterday, Kraft issued another statement stating that the NFL’s punishment “far exceeded any reasonable expectation.” And sure, Brady will likely appeal his four-game suspension as is his right under the collective bargaining agreement between the NFL and the players’ union. It’s to be determined how successful Brady or the Patriots would be in challenging these penalties.

But ultimately, the Wells Report provides the NFL cover to issue some form of discipline in accordance with its company standards, policies, and agreements. Having such cover is beneficial to all employers, if it is something that can be feasibly done in the appropriate circumstances. Hopefully, however, the report of the third party you hire will be much shorter than 243 pages, or else you’re likely dealing with a whole host of other problems.

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