Ranking the high court

December 01, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

When football season kicked off earlier this year, I took the chance to glean some insights for HR professionals from the difficult job facing the new college football playoff selection committee. Now that we’re coming up on the end of the football season, I’m turning to the committee once more for inspiration.shutterstock_105026918

As I write, the selection committee is chewing over this weekend’s results and will let us know its judgment on the four best teams (so far) in college football. Soon, they will choose the “final four” who will play a two-week tournament to decide the national champion. Right now, Alabama and Oregon are pretty much the consensus #1 and #2. Despite Florida State’s best efforts to play their way out of this thing, they keep finding ways to win and are generally #3 by default. Mississippi State (last week’s #4) took it on the chin from their archrival, Ole Miss, so the committee will apply its eye test and pick a new #4 (and leave an angry #5 and #6). My money is on TCU at #4.

I’m going to borrow the format and select my top four Supreme Court employment law decisions from the last five years. I’ve ranked them below, along with a capsule summary that explains why I’ve ranked it #1, and so on. Then, I’ll pair them up, play them off of each other, and pick the champion. Feel free to disagree in the comments!

The Final Four

Number 1: Wal-Mart Stores, Inc. v. Dukes (2011). This case is a true heavyweight, combining employment law and federal class action procedure. Wal-Mart won at the Supreme Court, which held that a nationwide class action of present and former female employees was inappropriate under the Federal Rules. Wal-Mart’s win in this case was a powerful blow against attempts to aggregate individual employment decisions under one lawsuit.

Number 2: New Process Steel, L.P. v. NLRB (2010). This one gets in on flash. The case garnered a ton of controversy, newsprint, and political attention at the time. The ultimate question, however, may have been a bit pedestrian: Eventually, New Process Steel prevailed when the Supreme Court held that two members of the National Labor Relations Board did not constitute a quorum of the board for exercising authority.

Number 3: Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (2010). Wait a minute – this one isn’t even an employment case! No matter. AnimalFeeds is a key component of a recent line of Supreme Court authority that supports the use of arbitration to resolve disputes. More and more employers are presenting arbitration programs to employees, and they will particularly like the holding in this case that class action arbitration is not available unless the parties specifically authorize it.

Number 4: Gross v. FBL (2009). This case sneaks in and will probably seem a bit esoteric to non-lawyers. Gross held that “but for” jury instructions are the rule for Age Discrimination in Employment Act claims, unlike status discrimination Title VII claims in which a lower “mixed motive” instruction is appropriate. Gross has already had one follow-up: University of Texas Southwestern Medical Center v. Nasser (2011), which applied the higher “but for” standard to Title VII retaliation claims.

The Predictions

In the Rose Bowl, top-ranked Wal-Mart v. Dukes will win a surprisingly close victory over Gross v. FBL. Gross is already punching above its weight, but just can’t overcome the sheer significance of the Wal-Mart opinion. Next, in the Sugar Bowl, AnimalFeeds and its arbitration impact will score a minor upset over New Process Steel. Finally, Wal-Mart claims the title of most significant Supreme Court decision in a championship game that is never all that close.

So … who thinks my crystal ball is broken?

Did I say that?

October 13, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Satya Nadella’s job was tough enough from the start. He followed Microsoft lifer Steve Ballmer and founder Bill Gates into the CEO role at a time when the company is looking to keep its businesses rolling in the face of a changing industry, slower PC sales, and serious pressure on its bread-and-butter Windows and Office products. Overall, the consensus is that he has done well. shutterstock_194661920 (1)

A misplayed comment last week, however, earned him some derision and led to a quick retraction. During the Grace Hopper Celebration of Women in Computing in Phoenix, Nadella suggested that women in the tech industry shouldn’t ask for pay raises and trust that their contributions would be rewarded in the long run. The audience didn’t exactly receive the advice well, and he quickly retracted the comment.

This episode is timely because arguments over gender differences in pay have been a hot topic in recent years. Folks on all sides of the issue can point to various statistical data to compare pay between men and women but, regardless of your take on the issue, the fact is that a number of federal and state laws make relative pay among men and women a key consideration for any personnel manager.

The federal side of this equation goes back to 1963, when the Equal Pay Act amended the Fair Labor Standards Act. The EPA prohibits pay discrimination for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions….” The EPA will allow differences based on seniority, quantity or quality or work, a merit system, or any other factor other than sex. Congress routinely considers amendments to the EPA, like the Paycheck Fairness Act, to bolster the EPA’s remedial provisions and prohibitions.

Additionally, a 2007 Supreme Court opinion prompted Congress to pass the Lilly Ledbetter Fair Pay Act, which altered the statute of limitations for pay discrimination claims brought under a host of antidiscrimination statutes like Title VII of the Civil Rights Act of 1964. The practical affect of the Ledbetter Act is still a subject of question, particularly as to how far back in time plaintiffs may be able to go to recover damages in pay discrimination claims.

When Mr. Nadella walked back his statements, he assured everyone that if a woman believes she is due a pay raise, she should absolutely ask for one. Very true. And for any employer that receives such a request, you should take the chance to ask yourself whether the pay decisions the company has made are based on defensible reasons other than sex.

Ready for kickoff

September 03, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I live in the South. This time of year, that means college football; that also means otherwise healthy friendships will erupt with enough recrimination, envy, taunts, and ill will to put the Corleones and Tattaglias to shame. Everyone crows that this is their year , we’re going to come out on top, and what-do-you-mean-that-overtime-loss-last-month-means-we-can’t-play-for-the-championship? shutterstock_165900731(Except folks like me, a Wake Forest alum, who find comfort in high-minded humility, of course.)

College football has never really found a satisfying way to crown its champion. It used to be that sportswriters picked it; then the coaches started their own poll and jumped in the mix. They tried a championship game, and then the number crunchers came out with the BCS, a computerized system that seemed to factor in everything (unless it was important, and then it was left out).  Then Colorado walloped Nebraska–and Nebraska advanced to the championship game. .

Now the college football dons have shifted course again. We finally get a “playoff” among four teams chosen by a “selection committee” meant to take the edge off the BCS’s cold math and reintroduce a bit of the eye test back into crowning a champ. Semifinal games will rotate among the “Classic Bowls”–the Rose, Sugar, Orange, Cotton, Fiesta, and Peach (for any of you who shivered through 1980s-era Peach Bowls in old County Stadium in Atlanta, the “Classic” designation is probably worth a chuckle). The semifinal winners will advance to the championship.

Problem solved. Right?

Probably not. That fifth team surely won’t be happy. You can count on demands to expand the playoff in coming years. Why? One reason I expect controversy is the selection committee is going to be using the eye test to pick its contestants. For sure, they will look at objective factors like strength of schedule, overall record, and such, but when you get down to the difference between the fourth and fifth teams, subjective factors are going to have to enter into the equation.

The same is true for human resources professionals. As much as employers try to rely on the most objective hiring metrics they can, the subjective factors cannot be discounted. Will this person be “a fit”? If we have to reduce staff, who has the more flexible skills to take on added responsibilities in different areas?

You will eventually find yourself in a situation like the college football selection committee, having to explain the objective and subjective factors behind who was in and who was out. Subjective factors are by no means out of bounds. They often, however, are the factors that find their way into the center of employment claims. Documenting performance expectations, giving long and serious consideration, and developing a clear job-related rationale for choosing certain employees or prospects over others are critical to showing a legitimate, nondiscriminatory reason for your actions.

Lies and statistics

July 24, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I keep coming back to books about baseball, but they’re just too valuable in terms of personnel management. A baseball manager (and his colleagues in the team office) function so much like an HR department. They have to pick the best roster and field the best lineup for the opponent each night. They have to fit payroll in a budget and make tough roster decisions. And, while their forebears in the past managed off instinct,shutterstock_34461571 modern baseball executives employ stats and other metrics to see which players are worth their salaries and their position in the lineup. That brings us to this installment’s book, Men at Work: The Craft of Baseball by George Will. Will, of course, is best known for his syndicated political columns but at heart he is a baseball fanatic. Men at Work devoted special attention to Tony LaRussa (a law school graduate in his own right), at that time the manager for the Oakland A’s. Twenty-five years ago, the A’s were an American League juggernaut that featured a marquee roster with the likes of Jose Canseco, Mark McGwire, Dave Parker, and Dave Stewart. Will was, of course, impressed with the talent walking around LaRussa’s clubhouse, but he seemed most fascinated with the manager’s command of and use of statistics to arrange his fielders, select pitches, and basically guide most of his decisions. In that era, LaRussa kept enormous binders with pitch charts, statistics of players in particular situations, and any number of other possibilities. He consulted the information constantly throughout each game, and his staff updated the information regularly. The point here is that while most managers were making decisions based on feel or instinct, LaRussa was making them based on data and history. Did Carney Lansford tend to hit this pitcher mainly to left field? If so, then Tony Phillips probably needs to have a bigger lead at second to give him a better chance to score on a single. Does this pitcher stay wild on a 2-1 count? If so, maybe this isn’t the time to put on the hit-and-run. Personnel management can take a page from this book. While courts still do approve of subjective evaluations if employed in the right way, the best practice to defend claims is to be sure that cold, hard facts guide your decisions as much as possible. Has one of your salespeople complained that some unlawful reason led to their exclusion from a key sales pitch? If so, you’re in a much better position if you can show them that they’ve not been successful with this prospective client’s industry in the past. Numbers and data, used well, are your friends. So, ask yourself this question: are you hiring and fielding a team because you think they’re the best ones to compete in the market, or do you know? It’s never 100%; after all, LaRussa didn’t come out on top every year. But he did enter the Hall of Fame with three World Series rings.

4 slam-dunk tips for HR pros from Spurs’ NBA success

June 16, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I’m a Wake Forest basketball fan from way back, so I’ve followed Tim Duncan’s professional career closely since 1998. All the sports fans out there are well aware by now that Duncan’s San Antonio Spurs won their fifth NBA title last night in convincing fashion over the Miami Heat. All the Spurs’ titles have come during Duncan’s career, and Duncan has only known one coach–Greg Popovich–since San Antonio selected him first in the 1997 NBA draft. shutterstock_173318291

The Spurs’ success since 1998 offers several tips and pointers for HR professionals. I list several below, in no particular order:

Continuity. The Spurs have maintained a remarkably consistent core during their 17-year run of success. They have had one coach, and Duncan has anchored the team in the middle the entire time. Early in their run, the Spurs built around Duncan and Hall of Famer David Robinson, a lifer in his own right. After Robinson retired, the Spurs’ core has included Tony Parker and Manu Ginobili, also Spurs lifers with no plans to head anywhere.

Acceptance of change. The fluid motion offense that gutted the Miami Heat bears little resemblance to the more plodding offenses the Spurs ran earlier in their run. At that point, Duncan and Robinson controlled the paint, defense was king, and their ball movement was focused on passing through Duncan or Robinson in the post. Today, the Spurs employ a more up-tempo style that features Tony Parker’s lightning quickness.

Assimilation of new talent. While the core remains the same, the NBA salary cap forces all teams to make some hard roster decisions. The Spurs have thrived by grafting serviceable, hardworking under-the-radar players onto their roster’s core. However, they do so by being choosy about who they bring in–it’s generally recognized around the league that you are going to change to become a Spur; they won’t change just to land you.

Casting broad new for talent. I suppose you could file this one under “diversity.” The Spurs have players on their roster from the United States, the U.S. Virgin Islands, France, Italy, Brazil, Canada, Argentina, and Australia. This is not happenstance, nor is it done for its own sake. First, the Spurs’ style lends itself well to players who grew up in the international game. Second–and let’s face it–San Antonio is a fine place but not on par with endorsement-rich NBA cities like New York, Chicago, LA, or Miami. The Spurs have to look for folks who fit their style and are hungry for a chance to play in the league. They’ve done quite well, thank you very much.

Overall, then, you may look to the Spurs for your own purposes. Do you have core talent committed to the organization and your mission? Are these folks accepting of change? Similarly, when you bring in new talent can you get them to buy in to your way of doing things? Finally, are you looking in all–and I mean all–the right places to find the talent you need? It’s not easy, but here’s an example to all for how you can make it work.

Donald Sterling: SMH

May 06, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I learned something last week. If you read a youngster’s text messages, you’ll notice shutterstock_104818202a complicated system of abbreviations, symbols, and symaphores that, when translated with your 7-year-old’s assistance, become more-or-less coherent English sentences. Anyway, I learned “SMH” means “shaking my head,” which is exactly what I do these days when I hear the words “Donald Sterling.”

Sterling made himself cannon fodder for anyone in sight, and our own Josh Sudbury ably tackled the issue last week. So why go back to the well? Quite simply, Mr. Sterling is the ol’ gift that keeps on giving.

Last week, DuJour.com managed to get a line in to Sterling. Catching the attention of a guy who is the subject of just about everyone’s morbid fascination is a nice little coup for any publication, so they went for it: They wanted to know Sterling’s thoughts about V. (Vivian?) Stiviano, his … correspondent on the infamous tapes (she calls herself his “Silly Rabbit,” but that’s beyond my ken). So, Mr. Sterling, Ms. Stiviano made tapes that have brought you public ridicule. They may cost you your team. What – say – you?!?!

“I wish I had just paid her off.”


Nevertheless, there is a kernel of a takeaway here for human resources professionals. If we give Mr. Sterling the enormous benefit of a very profound doubt, we can imagine he was referring to severance pay that he could have offered Ms. Stiviano. In that case, any employer offering severance needs to get a separation agreement in return. For separation agreements to make a clean break, though, you can’t treat them as boilerplate, and failing to have your counsel update them regularly or review them individually can stir trouble.

The potential topics are many, but here are a few words to the wise:

  • Don’t overreach. There are certain employment rights that cannot be waived, especially things like Fair Labor Standards Act (FLSA) and other wage claims. Furthermore, the Equal Employment Opportunity Commission (EEOC) and other agencies may view prohibitions against filing claims as unlawful (they’ve been litigating this issue recently, in fact). Appropriate drafting can give you a satisfactory resolution.
  • Don’t cancel out another agreement. Before signing a separation agreement with any employee, make sure you know the other agreements the company may have with this person (especially restrictive covenants). If those other agreements need to survive termination, be very careful about language in the separation agreement that purports to supersede prior agreements.
  • Know the law. I am still surprised that folks overlook the Older Workers Benefit Protection Act in their separation agreements. Also, if you’re doing an agreement in a state that’s relatively new to you, get some assistance.

And, finally, with a nod to Mr. Sterling, you should probably consider a paragraph requiring the employee to return all property and work product. Oh, yeah – and a confidentiality provision, too.

Selection show: seeding literature’s worst HR nightmares

March 23, 2014 - by: Matt Gilley 6 COMMENTS
Matt Gilley

March Madness always brings out our need to sort, rank, and compare. Personnel managers need not be any different and, since I’m nominally in charge of bringing literature to the discussion here and since we trace this blog’s heritage to speculating on Michael Scott’s employment law sins in The Office, let’s begin filling a bracket with the worst HR nightmares in literary history.   Brackets

We should have fertile territory. Literature, after all, is nothing but a retelling of human foibles. HR is nothing if not managing human foibles. I defy any of you to convince me that you don’t draw parallels to your coworkers when you’re making your way through a novel on the evenings and weekends.

Space is limited so I can’t begin to fill out a full 64 (or is it 68?) team bracket, and I invite you to suggest additional contestants in the comments. The following, though, are a few who I consider to be locks and may be in contention for the higher seeds:

  • Jay Gatsby, The Great Gatsby by F. Scott Fitzgerald: Let’s just catalogue the red flags, shall we? For starters, he’s a nouveau riche playboy with designs on a wealthy man’s wife. Add to that the fact that he’s tied up with shady underworld characters, you can’t quite figure where they money comes from, and his associates come and go from his life with disturbing frequency and anonymity. Oh yeah – and his name’s not Gatsby! Remember the Fair Credit Reporting Act (FCRA), give your employees a compliant consent form, and run an appropriate background check lest Meyer Wolfsheim begin playing games with the payroll account.
  • Jake Barnes, The Sun Also Rises by Ernest Hemingway: Barnes, the book’s protagonist, is one of the most puzzling HR nightmares: the talented layabout. He’s constantly leaving the office for the bar, an unrequitable love interest drives him to distraction, and he runs off to Spain with a crowd of idle rich buddies. He’s crying out for some good old progressive discipline (a phrase he will surely hate, since he’s a good writer), and he’s an ex-pat, so if you want to fire him your immigration folks will have to get involved.
  • Governor Willie Stark, All The King’s Men by Robert Penn Warren: Lousiana’s bombastic Governor and Senator Huey P. Long (“The Kingfish”) inspired the story of Willie Stark, so pathological behavior is sure to abound. Indeed, Stark proves to be just as cynical, calculating, ruthless, and ambitious as you would expect. He also becomes a philanderer, so get ready for the complaints.
  • Okonkwo, Things Fall Apart by Chinua Achebe: Okonkwo is the proud leader of an African tribe in Chinua Achebe’s story of colonial impact in Africa (if you haven’t read this one, I highly recommend it). He also rules with an iron fist and a quick, nasty temper. He’s much like the tyrannical department head who keeps people on a steady march into your office threatening to quit if you don’t do something about him. You’ll need to train him up, but be careful – he’s not going to be happy about it.
  • Animal Farm by George Orwell: Take your pick here – Orwell’s jeremiad about collectivism’s dangers had its share of sociopaths and psychopaths. Napoleon the pig is the easy place to start. He chases off an erstwhile partner and capable rival, Snowball (man, do I ever feel ridiculous when I discuss this book), in a plot to solidify his own power. Napoleon is a metaphor for the managers who perceive threats from talented employees (rather than opportunities) and run off your best potential.

So, readers, do you have any suggestions to fill out the bracket?

Is age just a number? Lessons from Jay Leno’s departure

February 09, 2014 - by: Matt Gilley 1 COMMENTS
Matt Gilley

I’m beginning to feel my age. Last night, a good friend celebrated a milestone birthday (I won’t say which milestone, but you can probably guess). His wife asked everyone to come in 1970s garb or as a character from the decade, so I went as J.R. Ewing. Our babysitter (born in 1995) had no idea who J.R. was. Deflated, I sighed and quoted Journey’s classic rock ballad, “The Wheel in the Sky Keeps on Turning.”    shutterstock_96916121

She didn’t get that one, either.

Speaking of age, the New York Times recently addressed Jay Leno’s retirement from the Tonight Show. (I’m afraid to ask whether our babysitter knows about Johnny Carson.) Leno is surrendering his seat at age 63 to 39-year-old Jimmy Fallon, and the Times took the event as a springboard to examine some of Leno’s contemporaries and their views on retirement.

For personnel leaders, I think several realizations are important to avoid age from becoming more than just a personal concern:

(1)  Retirement is occurring later. The Times article quotes a study that the average age at which people stop seeking work is now around age 61, up from 59 in 2003 and 57 in 1993. Demographically and economically, I suppose no one should be surprised. In the last 13 years, the United States has witnessed two stock market crashes, which depleted some retirement savings. Additionally, the swell of Boomers approaching retirement, and the lesser numbers in later generations, will strain Social Security and Medicare, and age of eligibility has and is sure to increase. As a result, HR managers should prepare to handle generational differences between relatively younger workers and older workers who are sticking around longer.

(2)  Retirement is not necessarily a choice. In the Times article, Jay Leno remarked, “It’s not my decision,” when asked about his retirement. His experience is similar to many other unplanned retirements. Folks in their fifties and sixties may not be ready to retire. They may still be good at their jobs. They may still be productive. They may still be healthy and energetic. They’ve got valuable years of experience. Why wouldn’t they want to stick around and why wouldn’t their employers want them?

The Times asserted the answer often lies in the fact that older workers cost more in terms of salary and benefits, so that “metric-centric” employers may find themselves deciding whether to trim older employees as well during reductions in force. However, any reduction in force can be a perilous business, and the Age Discrimination in Employment Act (ADEA) and the Older Workers’ Benefit Protection Act (OWBPA) up the ante significantly if a company downsizes to the detriment of its older workers.

HR managers should step carefully and be sure to seek guidance on their ADEA and OWBPA obligations. For example, do you know whether your severance agreements are OWBPA-compliant?  Do you know the last time the OWBPA language was reviewed? Do you have any idea what I’m talking about? If the answer to any of those questions is “no,” you need to take a look at your severance agreements and RIF practices.

(3)  Creative employers can take advantage of the available talent.  Jay Leno didn’t want to retire, and believes he can still bring an audience. I think he’s right, and some network will capitalize on his newfound availability.

You can do the same. Experienced folks with talent and skill are hitting the market. Plenty of them are going to be looking for employment, whether on a permanent, short-term, or independent contractor basis; in fact, many retirees go through the “revolving door” and wind up back in their same position as a contractor. Do not overlook this talent pool, but remember that regulatory agencies at all levels are scrutinizing independent contractor relationships. Be sure to audit these relationships so the revolving door doesn’t send a liability walking in.

Steve Jobs, ‘product guys’ and ‘sales guys,’ and your payroll

January 05, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I have a complicated relationship with thick biographies. Intellectually, I know I should sit there and wade my way through the thick prose devoted to men and women of great consequence. In a way, it’s like broccoli: “Go on, eat it – it’ll be good for you, and what do you mean, ‘I’m not hungry’?”  Quick fiction is so much more, well … fun. I didn’t have to fight that internal dialogue when I read Walter Isaacson’s Steve Jobs. I’ve been an Apple consumer for years: My folks bought an Apple II-E in the early ’80s and it stuck with us through thick and thin for the next 15 years. I’m writing this column on a MacBook. Apple fandom, however, is no key to appreciating Isaacson’s masterful treatment of Steve Jobs. Jobs, as you almost certainly know, was a brilliant, complicated, interesting, and often horrifying figure. His polymath and autodidactic approach to life guarantees that just about anyone can take a nugget of something from his biography, and personnel managers are no different. read more…

Categories: Books / Management / Matt Gilley

Moneyball redux: What can it buy you?

November 23, 2013 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I’m not shy about going back to the well. Last month I posted some lessons HR professionals could take from Billy Beane’s roster management of the Oakland A’s, as told in the bestseller, Moneyball.

For my money, Beane’s innovations as GM of the cash-poor A’s put him in the upper ranks of baseball executives among the likes of Branch Rickey, who first made use of an organized farm system to grow talent for my beloved St. Louis Cardinals (before he went on to sign Jackie Robinson with the Brooklyn Dodgers). Now that Brad Pitt has played him in the theaters, people from all walks of industry are clamoring for a bit of Beane’s mind, and personnel managers have been at the front of the line.

If you have to ask why, look around you right now. You are probably reading this on a digital display set into a laptop, tablet, or smartphone. That device is tethered to the ether (likely through your employer) where a server down the hall, in Seattle, in Bangalore, or who-knows-where is making a little record that you, my poor reader, lingered over my humble musings.

Five minutes ago, it also noted the nasty joke you forwarded to a buddy in another office, and it saw that your buddy (not as good a friend as you thought) felt that your joke warranted HR’s attention and sent it to his office HR rep. If asked, the server holds a map of the 16 times in the last three months you’ve crossed this line, and is just waiting for someone to call up this information that will twist the knife you’ve stuck in your own back. (If you’re wondering what it knows about all that stuff you’ve been copying to the used one terabyte hard drive you bought online last week, well … let’s just say you don’t want to do that anymore.)

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