Coaching reVOL-UTion: Schiano, Currie, and what school’s lawyers are analyzing right now

December 05, 2017 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

The Tennessee coaching search has produced high drama over the past two weeks. For Vol fans like myself, it has felt at times like absolute torture and at other times like just a little bit of torture. “Vol-nation” was in better spirits after the hiring of Phillip Fulmer as Athletic Director was announced, and many are pleased with the selection of master-recruiter and talented Alabama Defensive Coordinator Jeremy Pruitt as the next head coach of the Vols. Details surfaced early Thursday that Pruitt’s new contract is for 6-years at roughly $4 million per year.

Despite this stability, however, the University of Tennessee is far from out of the woods. That is because the administration is staring down the barrel of two potentially costly legal battles over separate memorandums of understanding (MOUs) with would-have-been head coach Greg Schiano and outgoing Athletic Director John Currie. As a legal blogger and avid college football fan, I have never been more excited to bring you legal analysis.

Schiano’s MOU

As you might recall, the Schiano hire at Tennessee was torpedoed after fans and boosters responded in an overwhelmingly negative way via social media and some alleged behind-the-scenes protests. It was later reported that Schiano may seek compensation for Tennessee backing out of an MOU that was allegedly signed by then-athletic director Currie. For starters, the biggest problem in giving any decided legal opinion is that we don’t have a copy of the MOU. In the absence of the actual Schiano MOU, most have looked to the MOU for current UT head basketball coach Rick Barnes for guidance about what might be in Schiano’s agreement. The Barnes MOU contains basic contract language, i.e., offer, acceptance, description of duties, compensation, and termination provisions. It is essentially a legally binding agreement and not an agreement to agree, even though it does contemplate the parties would sign a more detailed agreement later. The MOU contains standard for-cause/no-cause termination provisions outlining the parties’ duties in the event of a separation. The Schiano MOU is likely structured similarly.

While initial reports stated that Currie signed the document, reports have since surfaced that UT Chancellor Beverly Davenport did not sign the MOU, leaving some question about its enforceability. The question remains whether Currie’s purported signature on the MOU makes the document legally binding when UT’s top brass didn’t sign the agreement. The Barnes MOU states it would constitute a legally binding agreement “when fully executed.” I added the emphasis to “fully” because of the report that Currie’s is the only Tennessee signature purportedly on the agreement. By contrast, the Barnes agreement required the signatures of the athletic director, the chancellor, and the treasurer and CFO. That is consistent with Article IV, Section 8, of the UT Bylaws, which provide in pertinent part “all contracts . . . and other instruments of legal obligation shall be executed by the President or another University Officer after any required legal and fiscal review.” The position of athletic director—which Currie held—isn’t identified as a “University Officer” capable of executing such agreements. Thus, blank signature blocks for the university officers on Schiano’s MOU would tend to support the argument that although “executed,” the agreement wasn’t “fully” executed and therefore isn’t enforceable.

Schiano, however, may argue Currie had sufficient or at least apparent authority to bind the university so that Schiano could legitimately rely on Currie’s signature alone in believing the deal was done. Additional evidence about the university’s previous practice in such circumstances, such as other documents similar to the Barnes MOU, would be necessary to give a more definitive take on Schiano’s chances of success. But you can bet he and his agent are likely to push the issue, given that big money is at stake. A “no cause” termination would bring the MOU’s buyout clause into play. The Barnes MOU provided for a buyout worth $1 million per contract year remaining in the event of a no-cause termination. That was seemingly based on Barnes’ $2.5 million annual salary. Schiano’s MOU was likely worth much more, which would most likely result in a similarly higher buyout. Given the circumstances under which the deal crumbled, it is difficult to see how UT could argue it had cause to terminate the agreement. All facts pertinent to cause, including Schiano’s coaching history and The Washington Post article linking him to the Jerry Sandusky case at Penn State, were all well-known before negotiations began.

If Schiano presses the issue, UT will have to weigh its options in deciding whether to fight or try to negotiate a mutual resolution. That, too, could prove costly. A recent example can be found just down the road in Gainesville, Florida, in the form of (UT’s SEC East rival) the University of Florida’s termination of former head coach Jim McElwain. That termination, which was “for cause,” has reportedly resulted in a settlement paying McElwain roughly $4 million of his $12.9 million buyout. Since Schiano and McElwain reportedly share the same agent, the success of settlement negotiations in other termination cases may embolden Schiano to at least kick the tires with UT to see what he can get. 

Currie’s employment status

The fallout from the Schiano debacle is far from over. Just this past Friday, Currie was “suspended with pay” by Chancellor Davenport. Despite “suspending” and not “terminating” Currie, Davenport hired former UT head coach and Hall-of-Famer Phillip Fulmer to assume the AD duties full-time, effective immediately. The hiring of Currie’s replacement while he is still on staff likely means UT administrators and counsel are conducting an internal investigation to determine whether they can fire him for causea decision that may alleviate the burden of having to pay Currie’s own buyout, which reportedly stands at $5.5 million. Whether the university can establish he acted outside of his authority with regard to the botched hiring of Schiano and his MOU or whether Currie’s desperate “Hail Mary” attempts to hire Mike “the Pirate” Leach to succeed Butch Jones was the final nail in his coffin remains to be seen.

Remember, while all of this potential cash exchange plays out on your Twitter feed, Tennessee has essentially agreed to honor former coach Butch Jones’ $8.25 million buyout. Oh, to have been a football coach where “success” is measured by a committee and under-performance guarantees you money! Whatever, man, just Swing Your Sword.

Do not repeat the mistakes of your diva

January 03, 2017 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Preparation pays off. While it may be well known that “practice, practice, practice” gets you to Carnegie Hall, it appears you don’t even need to do the sound check to play Times Square on New Year’s Eve. Mariah Carey’s performance to close out the year may have felt like a fitting end to 2016, a year that has caught so much flack for surprise results and the loss of so many notable actors and musicians. Twitter was ruthless, as usual. Here it is, if you haven’t seen it (and you’ll probably watch it again even if you already have, just because). Like a train wreck in slow motion, you cannot look away.  BE PREPARED, message on business note paper

As the album version of her hit “Emotion” blared through the speakers, Carey attributed her Milli Vanilli impression to not having run a sound check. And herein lies today’s lesson for employers: Preparation Pays Off. Whether you’re a start-up company or a well-established brand, preparation in all thingsespecially HRis key. While Mariah Carey may be able to just say “S**t Happens” and move on, you and your company may not get off so easily.

In honor of the queen of the high note, here are a few tips for making sure you are prepared for 2017:

  1. Update your employee handbook. You know that thing collecting dust in the corner of your HR office or the electronic file you haven’t even tried to access since migrating to a new platform? Yeah, that one. Chances are if you put your handbook together in 2015 or before, at least some of the policies you drafted may have need to be revised. Even though the DOL’s overtime rule change didn’t go into effect, you may be headquartered or operating in a state whose employment laws changed slightly or significantly either through legislation or court decision, making your old policy out of date. The same applies if you made the effort to update one or just a couple of your handbook policies in the past years without revising the whole thing. While spot revisions are fine to ensure ongoing compliance, it is good practice to periodically review the entire handbook to ensure revisions haven’t created contradictions, either in wording or in practice. If any changes are made, be sure to re-circulate the new handbook to your employees.
  2. Train your managers. This applies regardless of whether your policies change. If you have read any of my previous posts on this blog, you might notice this commandment is a theme. This is because managers and front-line supervisors are so crucial to your company’s operations, especially when it comes to the application of employment laws. As far as the law is concerned, the company speaks through its managers, therefore, if your policies say one thing, and your managers say (or do) another, you are likely going to run into a problem sooner rather than later. And your problems will likely be a bit tougher to explain than a bad ear piece. Regularly training managers on the law and your company policies is the best way to ensure your managers don’t get your employees feeling “emotions” about the Company. (Okay, I’ll stop.)
  3. Audit your practices/positions. Do your operations remain stagnant year-over-year? Are you still doing the same thing you did 10 years ago? Are you doing it the same way? If the answer to one or more of these questions is “No,” and, even if not, it likely should be, then you should probably take a look at your position descriptions to be sure they match up with what your company is actually doing. Position descriptions are important both in the wage and hour context and in disability situations. Courts consistently look at a company’s position description to determine the “essential functions” of a job when analyzing whether an individual employee may be reasonably accommodated. So, keeping your descriptions up-to-date is the best way to ensure your managers and/or HR department is properly equipped to engage in the interactive process. In addition, making sure your position descriptions line up with employees’ actual duties is important when determining compliance with state and federal wage and hour laws regarding overtime exemptions, etc.

Use Mariah Carey’s final blunder of 2016 for good: resolve to prepare your company for a successful 2017!

 

 

Yes, Cher, you can ‘Turn Back Time’—you’ll just have to pay for it

November 07, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

By the way, if you haven’t heard, the Cubs won something called “the World Series.” Our long, national nightmarearrogant Cubs fanshas now officially begun. Now, onto things that actually matter.  Turn Back Time!

This past weekend, we rolled the clocks back. And though we got an extra hour of sleep (well, you may haveI have two children under four who didn’t realize it wasn’t time to get up yet), the cold, harsh reality is that the days are much shorter and the nights much longer, at least until March.

This annual power to “Turn Back Time” always reminds me of Cher. Everyone remembers Cher, right? I mean, she’s been (or she was, depending upon your age) a pop star since the days of the Johnson administration (the second one, not the first.) Who could forget “I got you babe” sung with her late husband Sonny Bono? (I mean this literally. Who on this earth, who has seen Bill Murray’s Groundhog Day, can forget this song? It’s physically impossible.) And, of course, she made her fans’ kids think she was cool again with “Believe.

The Cher that I remember, however, was something in between the young, blossoming starlet and the aged musical diva. It’s the big-haired, modern-day Cleopatra in fishnet stockings telling a crowd of sailors how badly she wanted to alter the space-time continuum for their love. You know, the music video you couldn’t watch because your momma didn’t approve. Or maybe that was just me.

Anyway, Cher’s tribute to all things 80s aside, the end of daylight savings time brings with it a couple of employment law problems many employers may simply overlook. The first is how to pay nonexempt employees working the graveyard shift when the clock strikes 2:00 a.m. twice. The Department of Labor has issued specific guidance on its website to answer the question. According to the DOL:

  • On the Sunday that Daylight Savings Time ends at 2:00 a.m., the employee works the hour from 1:00 a.m. to 2:00 a.m. twice because at 2:00 a.m. all of the clocks are turned back to 1:00 a.m. Thus, on this day the employee worked 9 hours, even though the schedule only reflected 8 hours.

The Fair Labor Standards Act (FLSA) requires that employees must be credited with all of the hours actually worked. Therefore, if the employee works the scheduled shift, employers must compensate the employee for all hours worked. If this extra hour kicks the employee over 40 hours for the workweek, the employer must pay the employee the overtime premium1.5x the employee’s “regular rate”for all hours worked over 40. Employers must be careful to check automatic payroll calculation software or applications to make sure they account for the extra hour. In large operations, failure to pay for the extra time may cause the employer to incur significant liability in the aggregate.

In addition to payroll challenges, the time change can also bring about changes in employee mood due to lack of sunlight. Known more commonly as “seasonal affective disorder,” this extreme form of common seasonal mood cycles is actually considered a type of depression. According to the Mayo Clinic’s website, employees suffering from seasonal affective disorder may exhibit symptoms of major depression, such as:

  • Feeling depressed most of the day, nearly every day
  • Feeling hopeless or worthless
  • Having low energy
  • Losing interest in activities you once enjoyed
  • Having problems with sleeping
  • Experiencing changes in your appetite or weight
  • Feeling sluggish or agitated
  • Having difficulty concentrating
  • Having frequent thoughts of death or suicide

In light of these symptoms, employers presented with an employee claiming to suffer from seasonal affective disorder should begin the interactive process with their employees to determine what, if any, reasonable accommodation(s) may be available. Failing to pay attention to employee requests can lead to liability. For example, in 2012, the Seventh Circuit Court to Appeals upheld a jury verdict in favor of a school teacher who claimed under the Americans with Disabilities Act (ADA) that her employer failed to accommodate her seasonal affective disorder by refusing to transfer her to a classroom with natural light. (Yes, folks, this is real life.)

On the other hand, if you don’t have a window available, the Job Accommodation Network suggests four basic light products that may reasonably accommodate workers with this disorder, including: “Light Boxes,” “Light Visors,” “Flourescent Desk Lamps” or “Dawn Simulators.” Each of these is meant to mimic the natural sunlight employees are typically exposed to during other times of the year.

Employers also should not rule out the possibility of leave for an employee suffering from symptoms of the disorder. Leave may be covered under the Family and Medical Leave Act (FMLA) or state leave laws depending on the employee’s tenure with the company and state law requirements. Lastly, employers are reminded that, under the ADA, as amended, they cannot take into account the mitigating effects medication may have in improving the employee’s mood or condition, but must instead treat the employee as disabled at all times. At the same time, any negative side effects caused by such medication may also require accommodation.

And the beat goes on…

 

What we learned: talent placement lessons from UT football and U.S. Ryder Cup team

October 03, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Sports are about players making plays. Coaches and managers can break down film, scheme, and motivate all they want. But, when the game is on the line, execution is all that matters. As the ole ball coach said, “It’s not about the X’s and O’s, it’s about the Jimmy’s and Joe’s.” This truth was on full display this weekend in two, wholly unrelated sports: college football and … golf.  Buisness start

On Saturday, the Georgia Bulldogs hosted the Tennessee Volunteers “between the hedges” in Athens, Georgia, and the last 30 seconds was likely the wildest ending to a sports contest you’ll ever see. If you didn’t see the game, and have been under a rock all weekend, Georgia threw a 50-yard touchdown pass with 10 seconds left to take the lead, only to have Tennessee throw a 50-yard “Hail Mary” with no time on the clock to win the game. The ending defies all attempts at written description. Do yourself a favor and click the link above, and watch all the videos. (Full disclosure: I am a Tennessee fan. A hopeless, oft-heartbroken Tennessee fan.)

For all the excitement on the gridiron, the story begins and ends with the man who caught the game-winning pass for the Vols, Jauan Jennings. Jennings came to Tennessee in 2015 as a 4-star recruit as a dual-threat quarterback out of Murfreesboro, Tennessee. Jennings also was a two-sport athlete, earning looks from several schools for hoops after he was named MVP of the basketball state tournament in his junior year. Jennings was a promising QB prospect with a solid arm and superior running ability. But, Coach Jones and the UT staff had other ideas, converting Jennings into a wide receiver shortly after he stepped on the practice field in Knoxville. To his credit, however, rather than pout or request a transfer, Jennings took the challenge to become the best wide receiver he could be. Boy, has that decision paid off! Just last week, Jennings burned future NFL draft pick Jalen Tabor for the go-ahead touchdown against the Florida Gators. And now, he basks in the glory of catching the pass that kept Tennessee in the driver’s seat for winning the SEC East. For Jennings, it’s an inspiring story of trust and commitment. For the coaches, it’s a story of knowing your players and putting them in the best position to succeed.

A similar story of placement and execution played out on the links on Sunday, as America recaptured the Ryder Cup over Europe, winning by the biggest margin in more than 30 years. Fittingly, the final, cup-clenching point was earned by Captain’s pick Ryan Moore, whom USA Team Captain Davis Love III chose over Bubba Watson, the seventh-ranked player in the world. The potentially controversial pick proved fruitful as Moore earned Team USA 2.5 points over the weekend, including a win over European veteran Lee Westwood.

3 tips for employers

The wisdom of these coaches and captains can be replicated every day in your workforce. Your first goal as a manager or business owner is to identify an individual with the will to succeed on their own. No matter how good a business person you are, if your team members aren’t committed to advancing themselves, it’s unlikely they will see the benefit in contributing to your goals, either.

Second, focus on the facts. Too often during hiring, employers will ask questions that don’t pertain to the needs of the job. Take Jennings, for example. While he may have desired to be a quarterback, the facts pointed the coaches to another position (i.e., tall, jumps well, good hands, great speed = wide receiver!). Focusing on tangible and intangible qualities that have the ability to affect the outcome of a play (or an assignment) will streamline your hiring process. Plus, not straying off into topics that don’t matter will eliminate the possibility of asking irrelevant questions that can expose your company to liability.

Finally, check references. Players have ready-made reference sheets in the form of wins, losses, and personal stats. Your applicants and employees wont be as easy to evaluate. The best thing is to call on those who have previously worked with them. Typically, the employee will provide you with a list of references. If that list seems suspect, or if the people you call don’t have anything good to say about a candidate, that should be a sure sign he/she likely won’t be a great contributor to your goals, either.

Taking time to build a team with the right kind of talent in the right places can help put your company in a position to succeed.

Brilliant (but not bedazzled) baristas

August 01, 2016 - by: Josh Sudbury 2 COMMENTS
Josh Sudbury

A ton of us are drinking coffee. I have a paper cup full of “life juice” next to my keyboard as I write this post. Coffee is not the reason I get out bed, but it is certainly a large contributor to me not staying out for the rest of the day. And, consistent with our nation’s founding principles, Americans have the right to choose where to purchase their preferred stimulant.  Male barista making coffee - line design composition

Those who choose Starbucks may have a more colorful experience on their next fuel up thanks to a new dress code announced by the Seattle-based company last week for employees in the U.S. and Canada. (Though our northern neighbors still prefer Tim Horton’s to Starbucks.) The change comes after an online petition seeking changes to the dress code garnered a reported 14,500 signatures.

According to the Seattle Times, the new rules allow Starbucks employees to sport “unnatural” hair colors, so long as the hair colors are permanent or semi-permanent. No temporary dyes or sprays, glitters or chalks are permitted under the rule change. This means the person who regularly misspells your name on your mocha-frappa-whatever may now do so with pink and purple head sprouts, so long as he/she isn’t shaking a little something extra into your cup with each head turn.

The rules relaxation doesn’t stop there; employees may also sport something behind that well-recognized green apron other than the plain white or black shirt and khakis we’ve all come to expect. Starbucks’ new lookbook invites your friendly perk pushers to “wear a range of subdued shirt colors beyond black and white, including gray, navy, dark denim and brown.” But, the Company warns, “solids are your friend, and so are smaller, tighter, low-contrast patterns.” I agree. The last thing you want to see before you’ve brought the world into focus is a dizzying array of lines and patterns. 

But what about changes to your own dress code? Employers often seek to bring balance to the workplace or to project a particular image through their employee’s daily garb. As a popular fashion retailer found out last year, failing to know when to be flexible with these requirements can be costly. However, issue of safety or quality, as with Starbucks’ prohibition of temporary dyes, sprays, or glitters, can provide legitimate support for particular requirements.

Employers should also be wary of promulgating different requirements for men and women. While such differentiation is not illegal by itself, requirements that deny equal employment opportunities or place a greater burden on one sex over the other can be troublesome. Employers should also remain consistent in their application of these policies. Failure to equally enforce even the slightest requirements can raise animosity in and amongst the workforce, leading to other negative issues.

Along those same lines, employers should have a plan in place for dealing with employees who object to complying with the policy. Dress code policies (and any changes) should be clearly communicated to all employees to prevent employees from later claiming they weren’t aware of the requirements if they are found in violation. Employers should also take seriously any requests to alter the requirements by an employee claiming to need relief based on religious beliefs or due to a disability. While the requested change may not ultimately be necessary, failing to properly address the employee’s request can, in certain circumstances, give rise to a valid claim.

Learning from Orlando: addressing potentially violent employees

June 21, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

In the nine days since Omar Mateen opened fire in the Pulse nightclub, killing 49 individuals and injuring several others, a report surfaced that Mateen’s violent nature and potential to do harm to others was readily apparent to at least one of his co-workers. According to the Los Angeles Times, Daniel Gilroy, who worked with Mateen for about a year as a security guard at PGA Village South in Port St. Lucie, FL, complained multiple times to their employer that Mateen was dangerous, that “he didn’t like blacks, women, lesbians and Jews.” Gilroy claims his employer’s failure to respond to the complaints left him with no choice but to resign. “I quit because everything he said was toxic,” Gilroy to USA Today, “and the company wouldn’t do anything. This guy was unhinged and unstable. He talked of killing people.”  New York City

Last week, in the immediate aftermath of the Orlando shooting incident, Marilyn Moran, partner in the Orlando office of Ford Harrison, offered employers advice on how to help employees in crisis through empathy and counseling, while remaining compliant with state and federal employment laws. The situation also highlights another issue that confronts employers on a daily basis: the potentially violent employee.

Reports of a potentially violent co-worker bring many difficult questions to bear. What are the nature of the alleged comments? Who is the source of the complaint and does that person have ulterior motives? Most important, should we get law enforcement involved or can we handle this ourselves? Because most employers will encounter such a situation at some point, it is best to formulate a plan of action and train your front level managers/supervisors on how to respond.

First and foremost, human resources professionals and managers must remain engaged with their workforce. Allowing yourself to detach from your employees for great lengths of time, whether it’s to catch up on paperwork or tend to other issues, may permit small problems to fester into big ones. This is not to say you can control or prevent a violent employee simply by seeing him/her on a regular basis. What you can do, however, is assist your managers in recognizing and addressing any potential issues before they become unmanageable or more threatening.

Remaining engaged also will help you ferret out the real problems from the noncredible complaints. As with any complaint investigation, if you have no personal experience with the alleged violent employee or the complaining employee, you will be at a severe disadvantage in evaluating character and credibility. When the human resources department cannot gain face-to-face exposure to employees as easily, such as in larger workforces or employers with multiple locations, it is critically important to have managers who are actively engaged with the employees they supervise. This does not mean managers should attempt to be their employees’ best friend. They should, however, remain present in the workplace, approachable, and maintain the highest levels of credibility with their employees at all times. This will serve to foster open communication about any issues arising about or between employees.

Employers also should maintain clear and well-disseminated policies prohibiting violence or threatening conduct toward coworkers and third parties. This includes verbal threats of potential harm. Employees should know to whom they should report this kind of conduct, and employers should investigate all complaints.

Employers may be hesitant to take action against an employee due to concerns that the employee may claim disability discrimination. While mental disabilities are protected, direct threats to co-workers and others are not. Employers should be sure not to take action against an employee simply because he/she has a mental disability that has shown the potential to result in violent or threatening behavior in others, such as bipolar disorder. Actions should be based on the employee’s own actions exhibiting a potential threat and not the employer’s assumptions about what might occur.

If a complaint or other situation appears to be particularly serious, do not hesitate to involve law enforcement officials. Do not underestimate complaints of violence or threatened violence to avoid a “scene.” Law enforcement are specially trained to handle potentially threatening situations and/or individuals. They can help assess the seriousness of a reported threat and determine the appropriate response. At the very least, law enforcement will create a report documenting the situation and the employers response. Employers owe it to their employees and their communities to take every effort to address these issues head on.

 

 

ABC, Kelly Ripa, Michael Strahan, and lessons on parting ways with key employees

May 17, 2016 - by: Josh Sudbury 6 COMMENTS
Josh Sudbury

What Kelly Ripa lacks in size, she makes up for in attitude. At just 5’3″, the petit daytime talk show star measures but a fraction of the size of her former co-host, Michael Strahan, himself a former New York Giants defensive end and Super Bowl champion. But Ripa’s actions since news broke of Strahan’s planned departure from Live! for a permanent slot on ABC’s Good Morning America show the pint-size starlet is anything but meek. key room

Strahan, in classic defensive end style, reportedly blindsided Ripa and the Live‘s producers with news of his move shortly after the show on April 19. Ripa, who was reportedly shocked and furious with the announcement and its delivery, was conspicuously absent from the show the following few days, allegedly celebrating her and her husband’s wedding anniversary. Despite Ripa’s being all smiles when she returned to the show, guests commented that interactions between her and Strahan were noticeably tense. On air, Ripa also got in some passive aggressive digs at her soon-to-be ex-co-host, making it clear to the viewing public Strahan wasn’t the only one skilled in the art of the sneak attack.

On the business side of things, Ripa and her producers bumped up Strahan’s exit to last Friday, May 13, rather than waiting until September as originally planned. According to an ABC spokesman, the move, which garnered the show more attention, was done so that Ripa and her team could “immediately begin the on-air search for a new co-host.” This past Monday, Ripa also changed the name of the show to “Live with Kelly” and released a new logo bearing the revised brand (mind you, a brand that is now very used to transition, having first been Live with Regis and Kathie Lee, and then Live with Regis and Kelly, before the recently defunct Live with Kelly and Michael.

Lessons for employers

The drama surrounding Strahan’s departure from the Live franchise underscores the importance of having a plan for dealing with key employee resignations. While the loss of an employee will no doubt affect your business, taking a few steps can ensure the impact isn’t fatal. For starters, employers should craft a plan for communicating the exit to the rest of the company. ABC’s communications to Ripa and the Live team regarding Strahan obviously left something to be desired. Instead, other key employees and team members should have been the first to know the change was likely happening, both to avoid the shock factor and to allow for ample time to plan for the replacement. On the flip side, it may have been advisable for Live’s producers to have a back-up transition plan even before the announcement, as a “just in case” precaution.

Another good step, which Ripa seemed to have taken, is to determine a date of departure that works best for the company. Details surrounding the employee’s payout can be worked out between the parties, and might even help shape a severance package if the company wants the employee’s exit to be sooner than the employee had planned, but is still willing to provide him/her with compensation for a time beyond that date. If the company is willing to provide such a severance plan, management should also attempt to negotiate a release of claims from the employee in exchange for the additional compensation.

Lastly, it is important that the company make a clean break with the employee and attempt to part on amicable terms if possible. Regardless of the circumstances of the employee’s departure, it’s best for management to avoid any lasting animosity that may fester into lawsuits against the company.

With a little planning and good execution, your employee transitions can be smooth and create the least impact on your business.

Peyton Manning and retirement–Super Bowl lessons on avoiding age claims at work

February 01, 2016 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

Super Bowl week is here. Everywhere you look (and I mean everywhere) this week, you will be reminded that the “big game” is this Sunday. You’ll be told what kind of chips to munch, the type of pizza to order, the beer, and soft drink to drink, the television or mobile app to watch it on, etc. It’s as if it’s some big media circus instead of a football game! NEWARK, NJ - JANUARY 26, 2014: Denver Broncos' Peyton Manning ar

If you listen closely, though, you might also hear about the two teams playing—the Denver Broncos and the Carolina Panthers. This year’s match-up offers great story lines that even the best WWE writer couldn’t dream up. The one you are most likely to hear about, though, is the battle between the two quarterbacks. The Broncos will field Peyton Manning (whose records and accomplishments should speak for themselves) and the up-and-coming Cam Newton, who led his team to a 15-1 regular season record and only the second Super Bowl appearance in the franchise’s history. The two quarterbacks’ personalities (and styles) couldn’t be more different. Manning’s persona is strictly business, and he frequently out-humbles even himself during interviews. Cam, on the other hand, is a bit flashier, having drawn negative attention throughout the season as a result of his penchant for dancing after scores.

Peyton Manning’s other competition this weekend is Father Time, a relentless competitor who remains undefeated across all sports. Peyton Manning is only 39. But, by NFL measure, he is practically ancient. To put it in perspective, he’s two years older than the next oldest starting QB (whom he defeated last week in the AFC Championship). He’s also the oldest QB to ever start in a Super Bowl, just ahead of his current boss and former Denver Broncos great, John Elway. To be sure, there is no mandatory retirement age in the NFL. Several QBs have played into their 40s. George Blanda even played until he was 48! But, with mounting injuries, that’s not likely to be the case for Manning.

Aging superstars are also likely part of your company. Indeed, a 2014 BLS study showed the U.S. workforce has never been older. Handling workers in their “golden years” can be somewhat tricky. Once an employee reaches the age of 40, he/she gains a new protected class status under federal lawage discrimination. Some states offer the same or similar coverage. It’s at this point that joking with an employee about his eventual retirement goes from playful to painful.

In a recent case, for example, a physician practicing at a Pennsylvania hospital filed suit alleging that when he had expressed an interest in renewing his contract, hospital administrators commented that they assumed the 63 year old would be retiring. The court held the administrators’  statements could form a basis for a jury to either disbelieve the hospital’s asserted reasons for terminating the physician’s contract. Similarly, an Alabama district court recently allowed a pharmacist’s lawsuit to proceed to trialeven where his employer cited numerous examples of the pharmacist’s poor performancebecause his supervisor made certain age-related remarks including asking the pharmacist whether he “planned to retire soon.”

These examples show that age-related comments can undermine even the most legitimate disciplinary actions. Employers would be well served to take certain steps to minimize this risk, including keeping HR professionals directly involved in the performance management process, which includes the communication of employment decisions to employees. Managers should be coached on how to discuss possible adverse actions with employees, to ensure they are aware of sensitive topics to avoid. In particular, managers should be counseled to avoid asking the employee about his/her retirement plans unless required by the business at hand. As Peyton Manning would tell you, preparation is key in all things.

3 tips for appropriate performance appraisals

January 05, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Each new year brings new resolutions. You might not be surprised to learn a 2015 Nielsen survey showed getting in shape was the most common new year’s resolution for last year. This year is likely to bring more of the same. I know in my own household, Santa brought my wife and me matching Fitbits for Christmas. (St. Nick thought we’d prefer the Charge HR model over the original step counters or the souped-up Surge.) Apparently, we weren’t the only ones getting into the Fitbit craze this holiday season. performance rating and appraisal form

I am happy to report my first foray into “wearable” tech has been pretty successful. I now have documented proof of my sedentary, slothful lifestyle instead of just a strong assumption. The Fitbit gives me feedback on all sorts of things related to my personal fitness. In addition to counting my daily steps, the device allows me to measure walks/runs, monitor my heart rate, track sleep, and estimate calories burned and the number of floors I have climbed. With the app, I can also track my calorie intake (although that requires both effort and a complete lack of shame) and both set and manage fitness goals such as exercise, weight loss, and sleep. Maybe—just maybe—the Fitbit will guilt me into changing that in the new year.

In the world of HR, the new year brings more than resolutions, it also brings the dreaded performance appraisal. Yes, that time when you and your managerial staff must work together to recall and recount an entire year’s worth of effort for each of the umpteen employees under your control. Performance reviews are the kind of thing you’re all gung ho about at the beginning, begin to get tired of about halfway through, and are so tired of doing by the end that you wish you’d never started. If that is you, don’t feel alone. According to the Washington Post, nearly 10% of Fortune 500 Companies report they have either severely diminished the role of the performance review or completely done away with the practice altogether. But if your company is part of the 90% that still utilizes this process, your annual reviews might benefit from these helpful tips.

1. Be honest

This is a point I try to drive home with my clients over and over. Your review process is not worth the effort if it fails to accurately assess the employee’s performance. Too often, managers tend to shy away from the potential conflict caused by a negative review and instead opt to fill the assessment with lots of back-patting or, worse yet, meaningless fluff. This does you and your employees no good. As an employment lawyer, I couldn’t help but notice the helpful parallels between the feedback I get from my Fitbit and the feedback your employees get from the performance appraisal. The little devil on my wrist lets me know exactly what I have accomplished and, maybe more important, exactly what I have not. Indeed, the numbers produced by my Fitbit are honest and sometimes brutally so. But a funny thing happens when I look down and see how few steps I’ve taken or the negligible amount of calories I have burned: I am motivated to do better! An honest performance review can have the same effect. So this year, don’t skimp on reality, even if it may hurt a little. You can’t build a bridge without making a few cuts.

2. Avoid the “Horns or Halo Effect”

Let’s face it, remembering is tough. The Horns or Halo Effect refers to our tendency to form a generalized positive impression of an employee based on a recent good or bad interaction. This can cloud our judgment and lead to a disproportionately high or low rating on all criteria even if the employee’s performance over the entire rating period doesn’t deserve it. If we rely on our memories alone to fill out a performance review, we are bound to miss something—likely several somethings. This is why it’s important to document the ups and downs of an employee’s performance throughout the year. Doing so will help you avoid unfairly skewing an employee’s ratings.

3. Set objective goals

Lastly, to best avoid allowing unnecessary bias to influence your ratings, it’s best to set objective criteria for the employees to meet on the front end, and assess whether your employees met those goals. While these goals do not have to be the same for everyone, the goals you set should accurately reflect the duties of each employee’s position. This is especially true for new employees. For example, my Fitbit allows me to personalize my fitness goals by adjusting settings up or down. Here in the beginning, it’s likely not smart for me to set a goal of running 20 miles a week. (Trust me—that ain’t happening!) But I can set a goal to run for 30 minutes, three times a week, and build from there. These clear objectives give me something to work toward while not feeling discouraged by the enormity of the task. Likewise, your employee’s objectives should be tailored based on their experience and expected outcomes. Setting unrealistic, or unachievable goals at the beginning can discourage your employees and make failure feel inevitable. On the flip side, setting realistic goals will encourage employees to perform, while giving you and your management team clear, objective metrics by which to assess their performance.

 

3 tips on firing employees—Les Miles/Mark Richt “silly season” edition

December 01, 2015 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

With the college football regular season coming to a close, you may have noticed that a different kind of season has begun, a time referred to by authors and sports bloggers alike as “silly season.” The fun (and farce) is typically kicked off by the mid- to late-season rumors that a formerly promising coach of a prominent program will be shown the door as soon as the clock hits zero at the last game. Many times their replacementthe one who will certainly be able to finally take us all the way!is an unproven coordinator from a rival school, an up-and-coming head coach from a lesser conference or division, or even more hilariously, a head coach recently given the boot by another program. Laid off-Head in hand

This year, the biggest rumors surrounded LSU head coach Les Miles, a man with a career winning percentage above 75% at LSU, a national championship, an SEC championship, multiple SEC West division championships, and seven seasons with 10 wins or more. And let’s not forget Les also had a buyout provision in his contract worth a reported $15 million, which allegedly was “not an issue” for the LSU booster club, despite the fact that the university itself is on the verge of bankruptcy. Thankfully, cooler heads prevailed after the Tigers took down Texas A&M in Baton Rouge 19-7.

The ending wasn’t so positive for Mark Richt at Georgia. Shortly after the Bulldogs beat rival Georgia Tech 13-7 to finish the regular season 9-3, Richt was asked to step down, even though he will be allowed to coach in the bowl game. If UGA wins, it would be Richt’s 10th season with 10 wins or more at Georgia. Doesn’t seem too terrible for a program whose only national championship came 35 years ago on the legs of Herschel Walker, arguably the most talented running back in NCAA history. Take it from a Tennessee fan: Bulldog nation, you may be in for a long, hard ride.

When it comes to your company, however, there are times when termination is the best option, be it due to consistent poor performance, inappropriate behavior, or any number of other factors. When that time comes, you don’t have to end up looking like a flustered athletic director after scanning the online message boards. Instead, take these few simple tips on how to prepare for, and carry out, terminating a troublesome employee.

1. Make sure the offense warrants the punishment

It may seem like a no-brainer, but before you terminate someone, it’s probably best to have more than a gut feeling that termination is necessary. Try not to put yourself in a bad position by acting on emotion. Doing so may lead to inconsistent outcomes, which affects your credibility with the rest of your staff.

Instead, if you feel an employee’s conduct or performance warrants termination, take a step back and review the facts and circumstances on which the discharge would be based. Was the employee’s performance truly sub-par, and was that employee in control of those outcomes? Did the employee actually violate company policy? Has he/she been warned before? Did others receive lesser punishments for similar conduct? If so, why? While you should not let the need for reflection lead to inaction, thinking through a termination decision is certainly preferable to the potential cost of a poor decision.

2. Stick to the facts

Too often, I find myself representing an employer whose need to justify a termination resulted in them playing fast and loose with the true reasons for the decision. While it may seem smart to tack on a few violations (strength in numbers, right?), the end result is just the opposite. Adding facts detracts from the true reason for your actions. This may confuse the employee as to why he/she is being terminated. (“You never mentioned this before. What is this doing here?!?”)

It can also negatively affect your credibility when you are later asked to explain the reasoning behind your actions. The inability to zero in on the exact reason for the employee’s termination may mean you should re-think your decision. Once you have formulated the reason for the termination, be sure you are prepared to communicate it to the employee without extraneous explanation or facts.

3. Treat the employee with respect

I have said in this blog and during many presentations that the #1 reason employees sue their employers is because they feel they were mistreated or treated unfairlynot necessarily illegally. Termination is an embarrassing moment for the employee. There may be a lot of explaining the employee has to do to spouses, children, friends, etc. This is not to say you should be apologetic for your decisionif you didn’t have to terminate them, then why are you? But, it’s OK  as an employer to show empathy for the personal implications of the termination.

Treating the employee with respect includes meeting privately with the employee and one witness, preferably of a managerial level, giving the employee time to let the decision set in, escorting rather than throwing him/her out, and offering to have another employee gather the personal belongings. By allowing the employee to maintain a bit of dignity, you may be able to avoid potential backlash such as a lawsuit or administrative charge.

These are just a few tips that can help you successfully navigate a difficult termination decision. As with most employment decisions, I encourage you to seek out the advice of trusted counsel to help talk you through the process. Doing so may go a long way toward reducing your company’s potential exposure in the future.

 

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