All the Money in the World: Mark Wahlberg, Michelle Williams, and wage disparity issues

January 22, 2018 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

In the wake of the Harvey Weinstein scandal and the ongoing Hollywood reckoning, Kevin Spacey’s downfall was swift following accusations from Anthony Rapp that Spacey sexually assaulted him at the age of 14.  Since Rapp came forward, several others have joined him in accusing Spacey of sexual misconduct and predatory behavior.  Netflix suspended production of House of Cards, and director Ridley Scott began pursuing rapid reshoots to recast Spacey’s role in the true crime thriller All the Money in the World.  Ironically, efforts to eradicate Spacey’s shadow of sexual harassment allegations inadvertently led to a highly publicized discussion about sex-based pay disparities.

Regarding the reshoots necessary to replace Spacey with Christopher Plummer, Scott stated in interviews that all cast members (with the exception of Plummer) completed the reshoots free of charge.    Michelle Williams, one of the film’s stars, confirmed that she agreed to do the reshoots for free and that “it is our little act of trying to right a wrong.  And it sends a message to predators–you can’t get away with this anymore.  Something will be done.”

However, earlier this month, USA Today reported that another one of the film’s stars, Mark Wahlberg was paid $1.5 million for the reshoots while Williams received an $80 per diem totaling less than $1,000.  The fact both actors were represented by the William Morris Endeavor Agency (WME) added even greater fuel to the ensuing fire.  A social media storm erupted with many condemning the pay disparity between Williams and Wahlberg as yet another example of gender inequality in the workplace.  Just two days earlier, male and female stars (including Williams) had worn black to the Golden Globes as a showing of support for Time’s Up, an anti-harassment and gender equality initiative launched by Hollywood power players like Reece Witherspoon, Eva Longoria, Shonda Rhimes, Ashley Judd, Natalie Portman, and many more.

Mark Wahlberg responded to the film controversy by promising to donate $1.5 million in Williams’ honor to the Time’s Up initiative.  WME promised to donate an additional $500,000 to Time’s Up.  Williams released a statement saying, “If we truly envision an equal world, it takes equal effort and sacrifice.  Today is one of the most indelible days of my life because of Mark Wahlberg, WME, and a community of men and women who share in this accomplishment.  Anthony Rapp, for all the shoulders you stood on, now we stand on yours.”

However, the controversy has not ended there.  The Hollywood Reporter released a story that Williams reportedly was paid $625,000 for her work on All the Money in the World while Wahlberg took home $500 million, despite the fact they had nearly equal screen time in the film.  Renewed public outcry has called for transparency in pay discussions and equality in the workplace.  News outlets and social media are likely to bring us similarly high-profile stories raising pay disparity issues, and it seems that a growing number of actors have been emboldened to discuss pay and alleged inequalities.  Indeed, the National Labor Relations Board has repeatedly reiterated employees’ right to discuss pay, and an executive order issued by then-president Barack Obama extends a similar standard to federal contractors who are not covered by the NLRA.

While so many of these headlines involve Hollywood stars, employers in all industries should take note and embrace the opportunity to evaluate and continue to re-evaluate their own practices to ensure legal compliance and a healthy work environment for employees.  My colleague, Rachel E. Kelly wrote a great piece last week offering employer tips on the importance of transparency and establishing an appropriate workplace culture where qualified diverse candidates can thrive.  As Rhimes stated about the Time’s Up initiative, “It’s very hard for us to speak righteously about the rest of anything if we haven’t cleaned our own house.”  It seems that time is indeed up for those who put off necessary house cleaning.

 

When the floodgates open, expect water at your doorstep

November 13, 2017 - by: David Kim 0 COMMENTS
David Kim

About a month ago, my colleague Kristin Gray wrote about the breaking Harvey Weinstein scandal and best practices for employers to prevent harassment and discrimination from invading the workplace. And while I have no intention of reiterating any of the excellent points Kristin covered in her piece, it would be ignoring the obvious not to say that a lot has transpired since that breaking news story.

Virtually every day since then, additional allegations of sexual harassment and misconduct have been made against prominent public figures. Not just individuals in Hollywood (which include everyone from executives, producers, writers and actors), but also against politicians, publishers, and editors from various media organizations, news contributors, restaurateurs, and a slew of others. On top of these serious allegations, numerous individuals (both public figures and “regular” individuals like you and me) have used social media to share their own stories or harassment, not only sexually based but also other forms of harassment and bullying within the workplace.

Trending hashtag Metoo on concrete wallIt is not an exaggeration to say that this topic has quite literally been part of our daily news cycle for the past month. And it isn’t hyperbolic to state that employers need to be aware that, as a result, this topic is something they need to be able to address and address properly as harassment claims are likely to increase. There’s a reason why statistics demonstrate that Fair Labor Standards Act litigation increases after changes to wage and hour regulations are debated in the public realm, whether they are implemented or not. Sure, noncompliance is certainly a factor, but so is awareness, which results in empowerment, which results in action.

Now I am not comparing the clearly invidious acts of sexual harassment and other forms of harassment, which should be taken seriously at all times, with general wage and hour law. The reality, however, is that public awareness of these types of harassment allegations has undoubtedly increased the conversation regarding misconduct in the workplace. When celebrities talk about struggling with drug addiction, recovering from a severe medical prognosis, or dealing with another tragedy in their lives, they often want to share their story to motivate or inspire those with a similar struggle. While many hear these stories and are moved by the message, they might not be technically inspired to act since they didn’t experience what the person sharing their message did. But even if it’s not you, there is someone out there who has been motivated by that story in one way or another, whether it’s to kick their habit, resolve to overcome the disease they’ve been diagnosed with, or to simply fight harder despite the tragedy in their lives.

The same goes harassment allegations. It is no coincidence that the floodgates have opened since the Weinstein allegations came to light. People who have experienced similar forms of mistreatment have felt empowered to come forward with their own stories and the sheer number of allegations that have been levied make clear what we already know, that sexually based and other forms of harassment continue to exist in all forms of the workplace.

In March of this year, Senator Al Franken of Minnesota introduced a bill known as the Arbitration Fairness Act of 2017, which seeks to prohibit predispute arbitration agreements of employment, consumer, antitrust or civil rights disputes. Due to the recent spate of allegations regarding sexual harassment, those in favor of the bill have now specifically highlighted how victims of harassment in the workplace would benefit if they were not forced to go to arbitration, but rather could have the benefit of a trial by jury. While there are certainly contrasting arguments regarding the benefits to both parties in arbitrating claims, recent events of the last month demonstrate how social consciousness can affect the discussion of lawmaking.

But social consciousness also affects our everyday lives and workplaces. There can be no doubt that the social discussion surrounding sexual harassment will inspire and empower those in the workplace to also come forward with their stories, as it should. Employers, for their part, must be aware that they must be fully prepared to address any such allegations. Large companies throughout the country have instituted or fast-tracked mandatory harassment training in a direct response to the high-profile allegations in the news. All employers should consider these steps as well. As stated, the floodgates are open and employers must ensure that they timely treat these allegations completely and appropriately, or else risk drowning.

Harvey Weinstein: beauty and the beastly mogul

October 12, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Over the last week, the fallout from a New York Times article regarding Harvey Weinstein has been swift and significant. On October 5, the Times published an explosive story about Hollywood producer and media mogul Weinstein’s alleged sexual harassment spanning decades. More and more women have been coming forward since the story broke to accuse Weinstein of unwelcome sexual advances and sexual assault during his time at Miramax and the Weinstein Company. The Times quoted Weinstein as stating, “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know that I have a long way to go.”  Stop Sexual Harassment red stop sign held by a female

According to the Times, Weinstein has reached settlements with at least eight women over the years, and his former attorney, Lisa Bloom, has described him as “an old dinosaur learning new ways.” The growing list of allegations stands in stark contrast against Weinstein’s public image as a liberal, humanitarian, and champion of women. The Times quoted Ashley Judd as saying, “Women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”

Since the story first broke, the Weinstein Company has terminated Weinstein’s employment, board members and legal advisers have resigned, and Weinstein’s wife has announced she is leaving him. Meanwhile, the accusations have continued to mount. Gwyneth Paltrow, Angelina Jolie, and Cara Delevingne have come forward with additional allegations of sexual harassment. The New Yorker also published a story alleging that Weinstein has raped several women over the years.

Weinstein is reportedly entering a treatment program for sex addiction and has denied any accusations of nonconsensual sex. From former temporary employees to Hollywood A-listers, the accusers’ accounts have a similar narrative: young women hoping to find success in the industry but instead facing unwanted sexual advances from a top power player promoting a culture of fear. It sounds like a Hollywood film plot in the vein of 9 to 5, but this is far more serious and with real-life consequences.

Best practices for employers

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sexual harassment and discrimination in the workplace, though there are many state and local laws prohibiting the same. To maintain a sexual harassment claim, the plaintiff must generally establish that he/she was harassed based on sex, the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and there is some basis for holding the employer liable.

If the harassment is perpetrated by a supervisor but does not culminate in a tangible employment action, a defending employer may avoid liability if it proves the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Best practices for employers to maintain healthy working environments and prevent harassment and discrimination from invading the workplace include:

  • Implementing strong policies prohibiting discrimination, outlining various avenues for employees to complain (taking into account the possibility that complaints may be against the person at the top of the chain of command), and prohibiting retaliation;
  • Training employees on the available avenues for complaints;
  • Training supervisors and managers on how to respond to a complaint;
  • Immediately investigating complaints; and
  • Taking prompt corrective action when complaints are substantiated.

Bottom line. Employers must practice commitment, communication, and credibility. It is their responsibility to ensure that potential complainants understand they will not be subjected to retaliation, the complaints will be taken seriously and investigated appropriately (regardless of the position of the accused harasser), and they have nothing to fear from using the complaint procedure. Let us know your thoughts on this developing story in the comments below.

Another Period: trial by idiot

Kristin Starnes Gray

The sophomore season of Another Period is now in full swing with last night’s episode having quite a bit of fun with the judiciary. If you haven’t already caught this gem of a comedy, it is an American period sitcom spoofing both reality shows and Downton Abbey. The show follows the outrageous lives of the Bellacourts, the first family of Newport, Rhode Island, and their household staff at the turn of the 20th century. With the first season covering issues such as drug addiction, mental illness, incest, sexual harassment, and abortion, we can expect the second season to continue to merrily cross the line into the taboo.   Uncertain judge

Last night’s episode was no exception, as the groundskeeper (Hamish, played by Brett Gelman) stands trial for the murder of a local gossip columnist with a nasty habit of exposing some of the Bellacourts’ dark family secrets in the Newport Looky-Loo newspaper. Despite the fact that Hamish is innocent (at least of this particular crime), his chances look grim with the fantastically unqualified Lord Frederick Bellacourt (played by Jason Ritter) presiding over the trial. His chances are not helped by the facts that Lillian Bellacourt (played by show co-creator Natasha Leggero) is more concerned with fame than the truth of her upcoming testimony, and Beatrice Bellacourt (played by show co-creator Riki Lindhome) is hoping for a death sentence for her own entertainment.

For his part, Ritter’s Lord Bellacourt gave us some excellent pointers on what a judge should not do during a trial, such as:

  1.  Proclaim himself “King of the Lawyers!”
  2. Have his twin sister (and secret lover) take over as judge while he goes “no. 1.”
  3. Return from a bathroom break to loudly proclaim from the bench, “I went no. 1 but while sitting down, just in case.”
  4. Allow an inebriated Mark Twain to represent the defendant in a capital murder case.
  5. Allow Mark Twain to nap during the trial.
  6. Entertain Mark Twain’s suggestion that he testify against his own client.
  7. Allow his father to interrupt the defendant’s testimony to provide a ridiculous alibi.
  8. Attempt to verify a defendant’s obviously made-up alibi by asking a female spectator to lift her skirts in the middle of the courtroom.
  9. Give the spectators (and me) nightmares about the coastline of New Hampshire.
  10. Accept a clearly unintentional and false confession from a minority spectator, because he’s ready to put down the gavel and flirt with his twin sister.

In short, never give a Bellacourt (especially Frederick, who enjoys “lawn canoeing” in his spare time) any level of power or responsibility.  For my fellow Another Period fans, use the comments section below to tell us your favorite part of last night’s episode.

Bloodline: We did a bad thing

December 11, 2015 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

“We’re not bad people, but we did a bad thing.” This is the tagline for the Netflix original thriller-drama Bloodline. If you haven’t seen it, run to add it to your watch list immediately. The show takes us into the lives of the Rayburn family, owners of a picturesque beachside hotel in the Florida Keys. Despite the gorgeous backdrop, this family is plagued by its dark and violent past. Pay attention to the opening sequence because a storm is certainly coming.  Woman Mugshot

When the oldest son, Danny, returns home after years away, the family reunion is anything but happy. Need proof? We know from the very start that Danny will end up dead by the hands of one (or more) of his siblings, but it will take the rest of the first season to unravel who kills him, how, and why.

During Danny’s descent into darkness (all he wanted to do was to give his toast at the anniversary party, right?), he and his family members commit any number of sins, many of which could destroy the family, not to mention the family business. To give but one example, Danny uses his criminal connections to threaten a witness and save one of his co-conspirators, Carlos, from some jail time after a fight. Danny ends up hiring Carlos to work at his family’s hotel, a cover for their actual moneymaking plan, despite (or, indeed, because of) Carlos’ criminal history and his recent run-in with the law.

This type of scenario is probably not what the Equal Employment Opportunity Commission (EEOC) had in mind when it released its enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, and national origin. Title VII prohibits employers from treating individuals differently based on those protected statuses, but it also prohibits employers from applying a facially neutral policy that has a disparate impact on individuals in a particular protected group.

The EEOC has warned that even when employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin. In short, employers must show that such exclusions are job-related and consistent with business necessity. The EEOC has called for a fact-based analysis whereby employers should consider (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense, conduct, and/or completion of the sentence, and (3) the nature of the job sought or held.

Danny, however, isn’t your typical employer. For his purposes, a criminal history is a virtue and an opportunity for exploitation. After all, how do you pay back your boss for having the prosecution’s star witness frightened out of testifying against you at your upcoming trial? Nothing good, I can tell you, but it certainly makes for an entertaining show. So tell us your thoughts in the comments section as well as your predictions for Season Two in the New Year.

Gall, Blatter

June 01, 2015 - by: Brian Kurtz 2 COMMENTS
Brian Kurtz

Joseph “Sepp” Blatter is a man whose name seems an adjective as much as a proper noun. Blatter, as you likely know by now, was just elected to a fifth term as President of the Fédération Internationale de Football Association (FIFA), the international umbrella organization for international soccer. The 79-year-old Blatter was his typically arrogant and tone-deaf self after his election victory, but one wonders if privately he is lining up some Ballon d’Or-caliber legal counsel.FIFA headquarter in Zurich, Switzerland

Because the Yanks are coming.

On Wednesday, May 27, the U.S. Department of Justice (DOJ) launched a studs-up tackle at FIFA, unleashing a comprehensive 47-count indictment that charged 14 individuals with racketeering, fraud, and money laundering. The indictment outlined 24 years of kickbacks, bribery, and outright corruption detailing how sports marketing firms bought off FIFA officials for lucrative broadcast rights to various FIFA-sanctioned tournaments. Nine of the 14 individuals indicted were FIFA officials. Some of the arrests were carried out in Zurich, Switzerland, with the cooperation of Swiss officials. The DOJ says this is only the beginning of its investigation, and there may be more arrests and indictments to come.

One of the non-FIFA defendants named in the indictment is Aaron Davidson, president of Traffic Sports USA, a sports marketing firm. Davidson is a U.S. citizen. His U.S. citizenship, coupled with the DOJ’s assurance that the investigation is not over, makes one wonder if the government is also going to bring charges under the Foreign Corrupt Practices Act (FCPA).

The FCPA generally prohibits a U.S. citizen or entity from bribing a “foreign official” for the purpose of obtaining business. The definition of “foreign official” includes an officer of a governmental agency, department, “or instrumentality thereof.” According to the indictment, Davidson facilitated bribes to soccer officials from Trinidad & Tobago, Costa Rica, Nicaragua, and the Cayman Islands. The question then is whether the soccer federations of those nations are “instrumentalities” of their national governments.

The recent Esquenazi decision from the Eleventh Circuit appears to permit a broader reading of the statute. In Esquenazi the court defined “instrumentality” as “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.” There is evidence that some national soccer federations are under the control of their national governments. A bribe by a U.S. citizen to such an official could bring the act under the FCPA. Davidson’s legal troubles may not be over. For Traffic Sports employees who helped facilitate the bribes, their legal troubles may just be beginning.

The men arrested last Wednesday are not hardened criminals. Some or all of them might be singing to the feds already. We can only speculate whether the scandal will reach Blatter and truly reform FIFA. But considering the DOJ’s resources, the cooperation of the Swiss government, and the recent announcement by British banks that they will review whether any dirty FIFA money was funneled through their systems, I think it’s appropriate to invoke the chant of U.S. Soccer’s diehard supporters:  I believe!  I believe that we will win!

Equal opportunity offender

September 20, 2013 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

No discussion of the film Horrible Bosses is complete without covering Kevin Spacey’s character, David Harken. Although he is arguably the most intimidating and even frightening of the three horrible bosses (two of which I covered in earlier posts, #1 and #2), his workplace conduct gives rise to the lowest litigation value from an employment law perspective. Unfortunately for Harken, his jealousy combined with his unhealthy marriage ultimately lead him to a life of violent crime outside the office and his final downfall. For the purposes of this blog entry, we will focus on Harken’s workplace conduct and leave his more colorful personal life for your enjoyment at home with a tub of popcorn.

In the film, Nick Hendricks (played by Jason Bateman) has good reason to detest Harken. After dangling a possible promotion in front of Hendricks and watching Hendricks work tirelessly to meet Harken’s extremely high (and often inconsistent) expectations , Harken proceeds to award the promotion to . . . himself.  He then commences construction on an even larger office for himself.  Hendricks is understandably upset about this strange turn of events. Sadly for Hendricks, “unfair” and even “bizarre” do not equate to “unlawful.” In addition, case law has clearly established that federal employment laws aren’t general civility codes for the American workplace.

While Harken’s conduct is despicable and makes for a great storyline, there is no indication that his conduct toward Hendricks is based on any protected status. Indeed, Hendricks would have an uphill battle proving a discrimination claim given that: (1) Hendricks and Harken are in the same race- and sex-protected groups; and (2) it seems that Harken is equally horrible to everyone in the office regardless of race, sex, religion, etc. Harken’s conduct, however, clearly does lead to serious workplace morale issues that any proactive employer would want to address.

Thankfully, Harken’s evil nature and a clever navigation system operator land him in jail with a self-inflicted gunshot wound to the leg, but Hendricks’ celebratory mood seems destined to be short-lived. The final moments of the film indicate that Hendricks may have traded one horrible boss for an even more disturbing one. Just ask the guy trapped in the car trunk.