Method to their madness, but what if Freddie the freelancer had stolen Don Draper’s idea?

April 18, 2014 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

I watched the opening scene of Mad Men (Season 7, Episode 1) and thought, “Wow, Freddie has really gotten his act together.” His Accutron pitch, so polished, so vivid, so moving. Don Draper himself could not have done better. Turns out Don couldn’t have done better, but only because it was revealed later that Don himself was feeding Freddie pitch ideas to use as a freelancer.

But what if the facts were slightly different? What if Don and Freddie were just two advertising guys eating sausage hoagies over lunch, casually sharing pitch ideas? And then what if Freddie took one of Don’s ideas and turned it into a successful pitch for which Freddie received credit and revenue? Could Don sue Freddie?

Don might consider a lawsuit for conversion under the theory that Freddie deprived him of the value of his property–his ideas–without consent. But Neshutterstock_80843131w York courts, like other jurisdictions, do not recognize conversion as a viable theory to recover intangible property such as intellectual property. Similarly, trade-secret action would likely fail because sharing an idea that may have commercial value with a potential competitor does meet the necessary proof element of whether the plaintiff took reasonable steps to maintain his idea’s secrecy.

A copyright infringement lawsuit would likely fail for similar reasons. Federal law extends copyright protection to works “fixed in any tangible medium of expression.” Don, however, could possibly pursue a common-law action against Freddie for misappropriation. This theory was at the heart of a years long legal battle between Taco Bell and a small design agency that claimed it invented the idea for the Taco Bell chihuahua.

If Don and Freddie were sophisticated–ha!–either one could have held an insurance policy that covered “advertising injury,” generally defined as the use of another’s idea in your advertisement or infringing on another’s copyright in your advertisement. Freddie could have invoked such a policy in case he had to defend himself against Don’s copyright infringement action. But Freddie needn’t worry. Don would likely have no viable action against Freddie, and the lesson is to keep one’s mouth shut until that brilliant idea has actually materialized into something tangible that merits legal protection.

Going forward, it’s worth noting that the current season of Mad Men takes place in 1969, before many of our current employment laws were even enacted. Title VII, however, was passed in 1964. As the season goes on, I’m sure my colleagues and I will be keeping an eye on Don’s replacement, Lou. Gladys Knight and the Pips? Oh my, such potential for race and gender discrimination lawsuits.

Men don’t [take] leave

April 14, 2014 - by: David Kim 3 COMMENTS
David Kim

At least that’s what former NFL quarterback Boomer Esiason and radio talk show host Mike Francesa believe. Their critical shutterstock_88182934comments of New York Mets second baseman Daniel Murphy, particularly those made by Esiason, recently created a storm of controversy that extended beyond just the sports world. Murphy missed the first two games of the 2014 regular season to be with his wife for the birth of their first child. In fact, Major League Baseball’s collective bargaining agreement with the Players Union provides that players can take up to three days for paternity leave. This provision was put into the collective bargaining agreement (CBA) back in 2011, a sign that the players lobbied and negotiated for such leave. Despite this, and despite the fact that Murphy played 161 out of 162 games last year, Esiason and Francesa ripped into Murphy. read more…

Veronica Mars: Return to Neptune

April 04, 2014 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Thanks in large part to a record-breaking Kickstarter campaign, legions of “Marshmallows” and I recently got to enjoy new adventures of Veronica Mars on the big screen. Although Veronica left the small screen back in 2007, that did not stop my favorite private detective from diving right back into action (and danger) in the film version. The premise of the film is that Veronica’s ex-boyfriend, Logan Echolls, is suspected yet again of murdering a girlfriend. Lucky for Logan, Veronica is willing to leave behind her life in New York (including a stable relationship with Piz and a high-powered legal career) to help, even when it means risking her own life. What else would you expect from someone who received a private investigator’s license for her 18th birthday?   KristenBell An interesting tidbit is that Kristen Bell, the actress who plays the titular character, had recently given birth at the time of filming. You would never know it watching Veronica hunt down the killer and narrowly avoid becoming a victim herself. This got me thinking about dangerous professions and pregnancy. Where would Logan (and all the devoted fans) be if a pregnant Veronica Mars was not permitted to do her job and catch the bad guy? According to the U.S. Supreme Court, employers may not lawfully deny jobs to women because of hazards to unborn children. Such decision have to be left to women. According to the Court, denying jobs to women due to hazards is biased because fertile men, but not fertile women, are given “a choice as to whether they wish to risk their reproductive health for a particular job.” Subsequent decisions have clarified that, although employers are generally prohibited from deciding for a pregnant employee what course of action is best for her, this prohibition does not constitute a requirement that an employer make alternate work available.  In other words, the Pregnancy Discrimination Act (PDA) doesn’t require an employer to provide preferential treatment for a pregnant employee. For example, a hospital isn’t required to make an exception to its policy that nurses treat all patients assigned to them when a nurse refuses to treat a patient with a contagious disease based on her pregnancy. Other decisions, however, have gone on to say that the PDA doesn’t preclude policies that take into account the reality of pregnancy in assisting women in balancing the work and family conflict and that federal law doesn’t prevent an employer from temporarily transferring a pregnant woman, at her request, for the protection of her unborn child. As for Veronica, these aren’t issues she has to address at the moment, though they could make for some interesting plot lines in a sequel. In the meantime, are you Team Piz or Team Logan?

“You’ve got mail! And it just might be a warrant for your arrest”

February 13, 2014 - by: Andy Tanick 0 COMMENTS
Andy Tanick

You don’t have to try very hard these days to find employment law references in pop culture. Movies and TV shows examine issues of employment discrimination, politicians seem unable to resist the urge to text photos of their private parts to their disgusted subordinates, and professional athletes provide ample fodder for lawyers in desperate search of HR blog topics. But when’s the last time a major news story emerged about the Health Insurance Portability and Accountability Act, or HIPAA? Now it is true that HIPAA made the news when it was initially signed into law by President Clinton, because (to greatly oversimplify) it served the laudable goal of guaranteeing continued health insurance coverage for employees who change jobs, without regard to preexisting conditions. But since those initial kudos, publicity about HIPAA has been about as hard to find as a day of calm weather in the American winter of 2013-14. AOL

That all changed last week, when the CEO of AOL, Tim Armstrong, publicly blamed unpopular changes to the company’s 401(k) policy on costs AOL had incurred because of two employees’ “distressed babies.” Specifically, Armstrong stated that AOL had to enact the new policy because, in part, “We had two AOL-ers that had distressed babies that were born, that we paid a million dollars each to make sure those babies were OK  in general. And those are the things that add up into our benefits cost.”  Suddenly, every pundit and commentator in the country became a HIPAA expert.

What was all the fuss about? Well, in addition to guaranteeing the “portability” of group health insurance, HIPAA also protects individuals from certain disclosures of their “protected health information,” or PHI. Of course, HIPAA only covers certain types of entities, only protects certain people, and only applies to certain information. Did it apply to Armstrong’s comments?

First, it does appear that HIPAA would apply to AOL’s group health plan. The law’s coverage includes certain health care providers, health care clearinghouses, and group health plans. AOL’s group health plan is a self-insured group health plan, meaning that while a carrier might administer claims, AOL would be intimately involved in the claims process and its benefits administrators and company executives might receive PHI obtained through the group health plan to administer and make decisions about the health plan.

Another relevant inquiry is how Armstrong received his information about the “distressed babies.” If he received it through employment records, as opposed to from AOL’s health plan, the information might not be considered PHI, and there would be no HIPAA violation (although other violations might have occurred).  However, if he received it in connection with the group health plan, a HIPAA violation was possible.

Armstrong also didn’t identify the babies at issue, let alone their parents. Can a violation occur when the employee isn’t specifically named? Again, the answer is “maybe.” To violate HIPAA, the inappropriate disclosure need not specifically identify the person with the condition; the law also applies where “there is a reasonable basis to believe [the disclosed information] can be used to identify the individual.” While most of AOL’s 5,000 employees probably had no idea who Armstrong was talking about, the mother of one of the “distressed babies” reported that within minutes of Armstrong’s statement, her husband began receiving calls from curious colleagues. Clearly, some co-workers were able to surmise from Armstrong’s statement the identity of the employees at issue.

Finally, while a comment about “distressed babies” clearly isn’t very specific about the medical conditions at issue, HIPAA prohibits statements about a person’s “physical condition,” among other things, as well as “the provision of health care to the individual” and the “payment for the provision of health care to the individual.” Armstrong’s comments here hit the trifecta: He commented about the babies’ physical condition, he made it clear they were receiving significant health care, and he mentioned the payment for the care.

Having said all of that, we don’t know what information Armstrong received, how or from what source he received it, or what independent investigation he might have done, all of which would be relevant to a detailed analysis of the issue. If either affected employee files a complaint with the Department of Health and Human Services, these are just a few of the questions the agency will ask Armstrong and AOL. Meanwhile, his comment has caused a whirlwind of negative publicity, culminating in AOL’s rescinding its 401(k) policy change.

What can an HR official learn from all of this? When it comes to employees’ health, conditions, health care, or payment for that health care, the less said, the better. HIPAA includes some significant potential monetary penalties, not to mention criminal penalties such as imprisonment for up to 10 years. While it’s unlikely that an inadvertent mention of an employee’s health condition will land a company official in the hoosegow, the lesson here–like the lesson in so many HR situations–is that when discussing employees, discretion is the better part of valor.

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.

From Gattaca to GINA: Use of genetic information in workplace is problematic

February 03, 2014 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

If there is one thing that is universal about the entertainment world, it’s that it makes us all feel inadequate. Yes, with the airbrushed photos and the digital editing techniques, the stars and starlets who grace the covers of magazines and show up on the big screen all seem to have something (or multiple things) that we regular folk just don’t. I’d even bet most of the beautiful people look better rolling out of bed in the morning than I do on my best day.   GeneticEngineering

It’s true that in certain ways we are not all created equal. Each of us has our own genetic make-up, which is little more than the pooling of the genes—both good and bad—from our parents, and their parents, and so on. The combination of these genes determines things like our height, athletic ability, and our predisposition to certain medical conditions such as cancer. read more…

Punter’s legal claims may be blocked

January 10, 2014 - by: Andy Tanick 3 COMMENTS
Andy Tanick

When they asked me to join the rotation of writers for Ford Harrison’s EntertainHR blog, I was a little nervous. After all, while we Minnesotans make headlines for things like our weather (the high temperature here last Monday was 13 degrees below zero) and electing professional wrestlers to high political office, we haven’t had a juicy HR story up here since Lou Grant paid Mary Richards less than her male colleague Murray because she didn’t have a family to support. And that was fictional. Then it happened, just as my deadline was fast approaching: the headline, dateline Minneapolis. “I was an NFL Player until I Was Fired by Two Cowards and a Bigot.” Thank you, Chris Kluwe.  As both an employment law attorney and the newly crowned champion of my fantasy football league, I might just be qualified to write about this. For those who haven’t heard, Kluwe was the Minnesota Vikings’ punter for eight years, until the team released him in May 2013. In the fall of 2012, Kluwe had become a media sensation due to his outspoken opposition to a proposed amendment to the Minnesota Constitution that would have defined marriage as “only a union of one man and one woman.” Many observers gave Kluwe part of the credit for the eventual defeat of that proposed constitutional amendment, which would have prevented the Minnesota legislature from legalizing same-sex marriage. Just a few months later, the legislature–encouraged by the defeat of the proposed constitutional amendment–did just Now, Kluwe claims the Vikings “fired” him because of the allegedly homophobic views of his Special Teams Coach (the “bigot”) and the alleged failure of his Head Coach and General Manager (the “two cowards”) to stand up to those views. To nobody’s surprise, he has also announced that he’s hired a lawyer. And pundits, fans, and observers everywhere are asking the same question: “Is Kluwe going to sue the Vikings?” While at first glance it certainly seems like Kluwe’s claims, if proven, would support some claim under federal or state law, it’s actually not all that clear. Let’s take a look at the most likely legal theories. Discrimination? Not really. Kluwe doesn’t claim that the Vikings cut him because he belongs to any protected class. He doesn’t profess to be gay himself–indeed, he has stated that he is not, and his wife would likely corroborate that. A more likely legal theory would be retaliation. State and federal discrimination laws prohibit employers from taking adverse action against an employee because the employee engaged in “protected activity.” Protected activity in this context means either opposing a practice believed to violate those same discrimination laws, or participating in an employment discrimination proceeding. Kluwe never did the latter, so he would have to prove the former: that the Vikings released him because he opposed a practice prohibited under state or federal discrimination laws. As Kluwe describes it himself, however, the Vikings replaced him because he supported marriage equality, not because he opposed anything prohibited by anti-discrimination laws. Certainly, by supporting same-sex marriage, Kluwe was implicitly opposing the state law that, at the time, banned such unions. But opposing an existing law that some believe to be discriminatory isn’t really the same as opposing a practice or act that is specifically forbidden by civil rights laws, e.g., employment discrimination, sexual harassment, failing to accommodate a disabled employee, etc. What about Kluwe’s right to free speech, you may ask. The Vikings couldn’t fire the man just for speaking his mind on a highly charged political issue, could they? Well, actually, yes, they could.  Despite what TV and radio pundits might think, the First Amendment’s guarantee of free speech doesn’t apply to private employers such as a football team. While the law protects some types of speech, such as organizing a union, most speech by private employees is not protected. Indeed, exercising their nonexistent right to “free speech” has been the downfall of many employees. Chris Kluwe, of course, was not a typical “at will” employee; as an NFL player, he belonged to a union, and it’s possible (albeit unlikely) that his union’s collective bargaining agreement protects players from being released due to their political statements. But even if that were the case, Kluwe would probably have to pursue his claim initially through a union grievance, not a lawsuit. Plaintiff’s employment lawyers, of course, are nothing if not creative, and win or lose, Kluwe’s case would provide his lawyer with a lot of irresistible free publicity. And many people would find it objectionable if the Vikings really did let Kluwe go because of his political views. But being a victim of an unfair employment practice, no matter how troubling, doesn’t necessarily translate into having an actionable legal claim. So while Chris Kluwe’s situation may have saved this new blogger from having to write about Minnesota weather for the time being, when it comes to legal action, Kluwe may be forced to … punt.

Robertson a sitting duck after controversial quotes released

December 19, 2013 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Duck Dynasty patriarch Phil Robertson and his family are most likely not enjoying a Happy Happy Happy Holiday after his recent GQ interview hit newsstands. In the interview, Robertson is quoted as saying:

“It seems like, to me, a vagina—as a man—would be more desirable than a man’s anus. That’s just me. I’m just thinking: There’s more there! She’s got more to offer. I mean, come on, dudes! You know what I’m saying? But hey, sin: It’s not logical, my man. It’s just not logical.”

When asked what he considered sinful, Robertson elaborated:

“Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men . . . .”

[For greater context and to get Robertson’s full quotes on the subject, I encourage you to read the entire GQ article, which you can find here.]

In response, A&E Networks put the eldest Robertson on “indefinite hiatus” from filming, issuing a statement saying the network is “extremely disappointed” to read Robertson’s comments, which A&E notes “are based on his own personal beliefs and not reflected in the series Duck Dynasty.”

read more…

Save the white males!

December 05, 2013 - by: Brian Kurtz 6 COMMENTS
Brian Kurtz

For decades the most heated gender-related dispute in the world of Archie Comics wasshutterstock_91545035 whether Archie was more into Betty or Veronica. But a recent lawsuit by five white male executives of Archie Comics against the company’s female co-CEO is enough to whiten Reggie Mantle’s hair.

The five men (and one woman) allege that Nancy Silberkleit engaged in a lengthy pattern of harassing, bullying, and demeaning conduct, including referring to each male employee simply as “penis.” For example, the complaint alleged that Silberkleit once interrupted a meeting, pointed at each of the four men present, and said “penis, penis, penis, penis.”  The complaint, filed in the Supreme Court of Westchester County, New York, alleges gender discrimination under the New York State Human Rights Law and asserts various state law causes of action.

In her motion to dismiss, Silberkleit raises an interesting defense. She argues, “White males are not a member of a protected class under this section of the HRL.” Silberkleit is apparently contending that plaintiffs who are in the gender or racial majority cannot avail themselves of anti-discrimination statutes. Does she have a point?

Not likely. New York’s human rights law is modeled after Title VII.  It expressly prohibits adverse employment action on the basis of a person’s age, race, disability, and sex, among other categories. Nowhere, however, does it specify that “white males” are somehow excluded from coverage. Indeed, a 2003 New York district court case addressed this very issue and held that a white male plaintiff in a sex discrimination lawsuit did not carry a heightened evidentiary burden and was “not required to make any special showing of background circumstances in order to state a prima facie case of gender discrimination because he is male.” Looks like the white guys may get their day in court.

As of this post, the parties have briefed Silberkleit’s motion to dismiss and await the court’s ruling. Considering the colorful allegations in this case, if you want to know what happens next, you may have to read it in the funny papers.

Offensive personal foul

November 06, 2013 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Suspended Miami Dolphins offensive lineman and last-guy-to-realize-people-save-voice-mails-and-texts Richie Incognito is 6’3″ and weighs 319 pounds. He is (was) a member of the Dolphins’ players leadership council, and he was a 2012 Pro Bowler. Incognito, however, may finally be facing an insurmountable opponent: the corporate employment lawyer. The Dolphins put Incognito on indefinite suspension after reportedly hearing a voice mail he left for teammate Jonathan Martin in April 2013. According to reports, the voice mail said:

“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I'm going to] slap your f—ing mouth. [I'm going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

Martin had reportedly been the target of Incognito’s hazing for some time. It’s unclear whether the Dolphins knew about the conduct all along or first learned of it after Martin stormed out of the team facility last week. From the HR/employment law perspective, it doesn’t really matter. At this point, if you’re the Dolphins, you’re trying to limit your liability.

Title VII of the Civil Rights Act of 1964 prohibits a hostile work environment on the basis of an employee’s gender, race, religion, or other protected classification. The test for a hostile environment is whether the complained-of conduct is severe and pervasive enough that it effectively alters the employee’s working conditions. Take another look at that voice mail and read the articles about the conduct Martin reportedly endured at the hands of Incognito and possibly others leading to his decision to walk out on his team.

With Incognito calling Martin a “half n—– piece of s—,”  the reports of systematic harassment, and Martin’s absence from the team, the Dolphins ran out of options with Incognito. An employer’s defense to coworker-on-coworker harassment is that upon learning of the conduct, it promptly investigated and took appropriate remedial measures. Whether or not the Dolphins knew about the Incognito-Martin dynamic earlier than last week, they knew all they needed to when they heard that voice mail.

There are other interesting legal and HR aspects to this story: bullying on the job and workplace violence; Martin’s potential causes of action against Incognito, the Dolphins, or the NFL;  jock culture. This blog may address those in future posts as the saga of Martin and Incognito unfolds.

The narrative of the pro football season has shifted. Roger Goodell was just getting his arms around head injuries. Now, he has to deal with hurt feelings. Welcome to the NFL!

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