Age, sex, and sports media

December 21, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Sports reporter Colleen Dominguez is 54 years old and has enjoyed a successful career in sports journalism including a lengthy stint at ESPN. Dominguez recently jumped to Fox Sports 1 and believes her age and gender are the only plausible reasons that FS1 has cut her broadcasting assignments and diminished her career. These are her allegations in a lawsuit filed recently in a California federal court. The complaint tells the story of a veteran, experienced reporter who has paid her dues but is being pushed aside by the men and the new pretty girl on the block. Can a media company make decisions based on the age and gender of its on-air talent?a young woman journalist with a microphone and a cameraman

This is not the first time this has come up in the TV and entertainment industry. In 1993 a Minnesota jury awarded 53-year-old sportscaster Tom Ryther $1.2 million in an age discrimination case. Ryther, a longtime fixture on TV news, was not renewed after his network commissioned a poll that showed he wasn’t having a “positive” effect on viewership. According to Ryther, at the time of his termination, the station manager asked him how it felt to be a failure at age 53.  No doubt that played well with the jury.

Ten years earlier, a Missouri court ruled against a female newscaster on her sex discrimination claim. She was replaced on air after a local survey showed she scored very low in categories dealing with “good looks” and the image of a “professional anchor woman.” The court rejected her arguments that the station’s appearance standards were discriminatory and were applied more leniently to men.

Equal Employment Opportunity Commission (EEOC) regulations state that the bona fide occupational qualification (BFOQ) defense isn’t available in a sex discrimination case when the adverse action is based on “stereotyped characterizations of the sexes.” Likewise, the BFOQ defense isn’t available in an age discrimination case unless the defendant can show that the disqualifying characteristic cannot be separated from age. Dominguez’s complaint alleges statements by FS1 personnel that link her reduced workload to perceptions about her age and her gender.

Anyone who consumes sports television cannot help but notice that it is male-dominated, and the few women one sees on screen skew young. Is Dominguez a victim of industry perception?  It will be interesting to see how FS1 frames its defense.

Go Scrooge yourself: 5 biz holiday party tips

December 07, 2015 - by: Ed Carlstedt 0 COMMENTS
Ed Carlstedt

‘Tis the season for your company’s annual holiday party. And while the notion of drinking, eating and generally enjoying merriment with your coworkers, subordinates, and superiors may seem innocuous, it is anything but. What seems like a festive occasion during the most wonderful time of the year is, if sledded incorrectly, a mine field of potential employment law mishaps. And while I don’t mean to be a Scrooge, this week’s lesson comes from a scene in one of my favorite holiday classics, the movie Scrooged with Bill Murray. What can we learn from this seasonal, cinematic favorite? Well, you can learn that, for purposes of the company holiday party, you should consider “Scrooge-ing” yourself. office holiday party

In the movie, Bill Murray’s character, Frank Cross (the modern day Scrooge), is visited by three ghosts, several of whom transport him back in time to certain life events that froze his heart and led to his hatred for Christmas. During one of his time-traveling trips, Frank visits his office during a wild late-1960s holiday party. People are seen drinking heavily, dancing, flirting with coworkers, and dressing inappropriately, and one woman, Tina (who is wearing a rather skimpy Santa’s helper outfit) is even handing out photocopies of her derriere.

As the coworkers are partying with reckless impunity, Frank passes through the party while completing his work tasks. Frank is wearing his work attire and isn’t drinking. The boss asks Frank to note the ongoing party and implies that he should join. Frank politely declines and advises his boss that he has several projects that he needs to complete. Tina then approaches Frank, hands him a copy of her “resume,” and appears particularly enthused to see Frank. Frank essentially brushes her off and goes about his work. The merry office party, like the little drummer boy, marches on.

So what lessons can we learn from this scene? For purposes of the company holiday party, go Scrooge yourself, at least a little bit. Here are my top five tips for conducting yourself appropriately at the company holiday party, regardless of whether you are the CEO or the most recently hired file clerk.

  1. Dress appropriately. A company holiday party is still a work event. It’s not a Vegas nightclub. Stay away from clothes that will draw a lot of attention to you and provide fodder for your coworkers. If you look in the mirror and question whether your outfit is inappropriate, it probably is. Go change and put on something more appropriate.
  2. Don’t flirt with coworkers (again, it’s not a Vegas nightclub) or engage in other inappropriate conversations such as office gossip, politics, religion, etc. If this effectively eliminates 95 percent of your conversation, you should consider skipping the holiday party and reading some books and newspapers to broaden your conversation base.
  3. Don’t drink excessively (see Vegas nightclub reference here). Know your tolerance and drink in a manner that will permit you to maintain your professionalism. You don’t have to go full Frank Cross, but drink in moderation. If you drink, consider calling Uber or taking a cab home.
  4. Don’t stay until the wee hours of the night (save that for the Vegas nightclub). If history and college tell us anything, it’s that very bad things can happen late at night, especially when people drink. Plan to leave before the scheduled end of the party and stick to that plan. If you feel yourself getting drunk, regardless of the time, arrange for an Uber or a cab and go home immediately.
  5. Don’t assume everyone celebrates a particular holiday (no applicable Vegas nightclub reference). Many holidays are celebrated during December including Kwanzaa, Hanukkah, Christmas, Festivus (see my earlier blog referencing Seinfeld), etc. Be sensitive to the fact that we’re a diverse country with diverse holidays and rituals.

Moral of the story: When it comes to the holiday office party, Scrooge yourself a little bit. In other words, do the exact opposite of what you would do in a Vegas nightclub. Happy holidays!

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.


Tricks and treats and trial briefs

October 26, 2015 - by: Brian Kurtz 0 COMMENTS
Brian Kurtz

Remember NBC’s The Office? I think some lawyers used to blog about it. Anyhow, one of my favorite episodes was “Costume Contest” where the Scranton employees threw a Halloween party at the branch office. The costumes in the episode were mostly tame, ranging from Justin Bieber (Ryan) to Lady Gaga (Gabe). Late in the episode Angela dressed up as “sexy nurse.” The employment lawyer in me was not amused.  Devils Not in Disguise

Halloween is a few days away, and many employers will be holding costume-themed events. Unless HR steps in with some firm rules about costumes and conduct, some of those parties will invariably end up as reported Title VII cases. Consider just a few examples:

  • In a 2009 New York case, the plaintiff, dressed as a punk schoolgirl, was asked by her supervisor whether her fishnet stockings were waist-high or thigh-high;
  • In a 2009 Massachusetts case, photographic evidence of the provocative costumes the plaintiff wore to Halloween parties was offered by the defense in her sexual harassment case;
  • In a 2006 Louisiana case, the plaintiff dressed like a cat, prompting her manager to comment that he wanted “that p***y”;
  • In a 1995 Eighth Circuit decision, a white officer came to the party dressed in blackface, wearing overalls and a black curly wig, and carrying a watermelon.

Don’t let this be your workplace. Take steps before the party to diminish the risk of liability. Prohibit or limit alcohol. Do not allow provocative costumes. If the party takes place at the workplace, have it end at a reasonable hour. Remind employees about the company’s harassment and discrimination policies. Nothing is scarier than being sworn in for your deposition. Happy Halloween, everyone.

The Cardinal Way

September 29, 2015 - by: Matt Gilley 2 COMMENTS
Matt Gilley

I’m a St. Louis Cardinal lifer so, for most Major League baseball fans out there, you probably assume I’m insufferable. (You may be right.) Still, don’t look for me to apologize that we’re in first place, have been for pretty much the entire season, and boast the best record in baseball. The postseason is upon us and, if all goes well tonight against Pittsburgh, we will wrap up another NL Central Division title and head into the postseason looking for yet another World Series championship. Yes, life is good.  Where the Cardinals play

One of the reasons so many fans find us insufferable is our talk of the “Cardinal Way.” Most people draw this link back to Branch Rickey, the pioneering baseball executive who first developed the Cardinals’ farm system before he went on to engineer Jackie Robinson’s entry into the Majors, thereby breaking down baseball’s color barrier.

Even if my Cardinals aren’t your cup of tea, bear with me for a bit because the franchise emphasizes several practices that offer some lessons for anyone managing a business that relies on contributions from everyone on the roster. Consider, if you will, the following:

  • Well Communicated Expectations:  Every player in the Cardinals’ system (down to the youngest player at the lowest level in the Minor Leagues) receives a manual of several dozen pages that details how the Cardinals go about playing the game. Every player in the system knows what the club expects of him on the field, off the field, and in the clubhouse. It is not a generic document, either, and management insists that players observe it. If you think about it, it’s not unlike an employee handbook, but I wager that the Cardinals put more effort than most of us into keeping their player manual up-to-date and in line with their real expectations. There’s a lesson to all of us when the time comes to review your manual–make it a living document central to running your business.
  • Habit: If you watch a Cardinal hit a home run, you will see the same thing nearly every time: The hitter rounds the bases, touches home, and heads to the dugout, and the players line up while the hitter goes down the line receiving congratulations from each and every player. The last guy in the dugout has a drink waiting for the hitter. It happens every time, with every player. In other words, the team makes sure they recognize accomplishments, and each member takes part in offering an “attaboy.”
  • Consistency in Management Ranks: Sure, there is some turnover; for instance, Jeff Luhnow left for the Astros and has built them into a contender (we won’t mention for now that the FBI is looking into whether some Cardinals’ personnel may have accessed the Astros’ computer systems).  Still, the general managers and ownership have been more stable than most over the years, allowing for consistent player development and assessment of personnel needs.
  • Succeeding Despite Roster Turnover: The first player to challenge baseball’s Reserve Clause 40 years ago was Curt Flood, a Cardinal outfielder. Flood lost his battle but the players won the war, ushering in the modern era of free agency. The Cardinals, however, have mostly avoided bloated free agent contracts and have been willing to lose players in free agency (e.g., Albert Pujols). The Cardinals usually don’t overpay for free agent talent (with some exceptions) and have preferred to restock their roster with players brought up through their farm system who have been steeped in the Cardinal Way for several years. In a similar sense, any business is bound to lose talent to other firms willing to pay a higher rate for their services–the question, however, is whether your business is developing new talent versed in your company’s culture and mission who can step forward when the time comes.

In all likelihood, no one reading this column runs a baseball team. You can, however, develop your organization’s culture, find people who honor the habits that keep it going, foster consistent management, and prepare your people to step forward despite inevitable turnover. It’s a model worth considering.

And one other thing–go Cards!

Game of Thrones: Trial by combat

August 17, 2015 - by: Kristin Starnes Gray 4 COMMENTS
Kristin Starnes Gray

Winter is coming, but not soon enough for those of us eager for Season 6 of Game of Thrones.  While we wait, I’d like to rewind to one of my favorite episodes from Season 4 involving Tyrion’s trial for the murder of his nephew. As you may recall, Tyrion’s long-time rivalry with his sister, Cersei, comes to a head when she falsely accuses him of murdering her son. Watching the ensuing trial should make us all thankful that Trial by combatwe do not live in Westeros. Tyrion stands alone, with no legal counsel, facing a panel of judges who can hardly be considered fair or unbiased. Indeed, Tyrion’s father seems the most eager to see him dead. After enduring one misleading and/or outright lying witness after another, without the opportunities for cross-examination or to present any evidence whatsoever, Tyrion realizes he will get no justice in that trial. His solution: Demand trial by combat.

Thankfully, our own court system is much more concerned about such things as fairness and justice, so employers aren’t forced to resort to trial by combat in employment litigation. For example, our system permits the parties the opportunities for cross examination and to present written documentation and other admissible evidence at trial. In addition, there are rules of evidence to determine what is or is not admissible and to weed out unreliable evidence such as hearsay.

Employers would be well advised to prepare for the potential for trial long before the threat of litigation has even presented itself.  Some general tips include:

  • Having clear written policies and procedures;
  • Consistently enforcing those same policies and procedures;
  • Keeping meticulous records;
  • Always having a witness present when issuing a disciplinary action or termination;
  • Periodically auditing disciplinary and termination procedures for consistency; and
  • Maintaining a pretermination checklist.

One other tip: Don’t insult or threaten the entire courtroom, though it was highly entertaining when Tyrion retorted, “I wish I was the monster you think I am. I wish I had enough poison for the whole pack of you. I would gladly give my life to watch you all swallow it.” While we all anxiously await Season 6, let us know in the comments about your favorite Game of Thrones moments. What do you think about Shae’s courtroom performance? Did you find her to be more likeable (or at least more sympathetic) in the book or on the small screen? Also, if you had to pick a champion for trial by combat, which character would you choose?

Deflategate: Tom Brady’s fumble provides valuable lesson about spoliation of evidence

August 03, 2015 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

Tom Brady is one of the best quarterbacks in NFL history, but he fumbled big time when he ordered the destruction of his cell phone before he was to be questioned about his involvement in the deflation of footballs during last season’s AFC championship game. Importantly, prior to the phone’s destruction, NFL investigators had asked Brady for text messages and other electronic information stored on his phone. Although he continues to deny any wrongdoing, the NFL upheld his four-game suspension, concluding that his destruction of the cell phone proved he wanted to hide incriminating evidence of his involvement in the scandal.  Spoilation of Evidence tsk tsk Tom Brady

Destruction of evidenceoften referred to as “spoliation of evidence”refers to the destruction of documents, information, or other tangible items that are potentially relevant to a claim before the other side has had an opportunity to review the evidence. Spoliation of evidence can have dire consequences for offenders. As a result, employers should know the when, what, why, and how of preserving evidence to avoid liability and ensure a fair playing field.

When to preserve
In employment cases, the duty to preserve relevant records, documentation, and other evidence may arise when an employee files a discrimination charge or lawsuit against an employer. In certain instances, however, the duty to preserve arises even earlier if the employer has a reasonable basis to believe that the employee may pursue legal action against the employer. Thus, an employer should implement measures to preserve relevant evidence as soon as it reasonably anticipates that the employee may file a claim.

What to reserve
Generally, employers must preserve any evidence that is relevant, which means it tends to prove or disprove any material fact in dispute. In determining what may be relevant, employers should cast a wide net and preserve all information that may reasonably be related to the employee’s claim, including but not limited to the personnel file of the complaining employee, correspondence between the employee and employer (or co-workers), and the personnel records of any employees who are similarly situated to the complaining individual.

Of course, the duty to preserve evidence doesn’t just apply to official personnel records or paper documents kept in desks and filing cabinets. Relevant evidence also may be housed on network servers, laptop and desktop computers, smart phones, e-mails, text messages, voicemail, and other electronic devices.

Why to preserve
As shown in the case of Brady’s destroyed cell phone, spoliation of evidence may lead to an adverse inference of guilt. In other words, if a court concludes that a party has destroyed evidence, the judge may instruct the jury that the missing evidence would have been incriminating. Spoliation of evidence also may subject parties to financial penalties, exclusion of relevant evidence, and dismissal of defenses.

How to preserve
So now that you know the when, what, and why of preserving evidence, you will need to know how to do it. Usually the first step in the preservation process is to issue a litigation hold letter to those who may have custody of relevant information, which should include the employee’s supervisor and IT personnel. When asking custodians to preserve evidence, you should provide a broad description of the types of documents and other information that must be preserved and follow up as needed to ensure the appropriate measures have been taken. Based on the individual circumstances of your case, you also may want to collect electronic devices for safekeeping or have a virtual image made of a device’s hard drive to avoid the alteration or destruction of electronically stored information and its metadata.

In addition, you should instruct your business’s IT personnel (and the material witnesses) to suspend any automatic destruction policy and forego the routine purging of e-mails or other data. Although malicious spoliation of evidence is clearly wrong, even the negligent destruction of evidence may result in sanctions if the employer was on notice of a potential claim but failed to suspend its document-destruction policies. Therefore, if you are put on notice of a potential claim, you should immediately notify the appropriate personnel to suspend your business’s routine destruction protocols to avoid the inadvertent destruction of relevant evidence.

As Tom Brady can surely attest, spoliation of evidence may undermine your business’s ability to defend itself in a lawsuit and cast doubt on your credibility in the process. To protect yourself, at the first sign of a claim, immediately seek guidance from experienced employment law counsel. Working together, you can assess your business’s duty to preserve evidence and develop a winning game plan for identifying and preserving relevant information.

Avoiding the “own goal” at work: 3 lessons from Women’s World Cup

July 06, 2015 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

On Sunday, the United States Women’s National Team (USWNT) soundly defeated Japan to claim the nation’s third World Cup championship. With this year’s Women’s World Cup breaking TV ratings expectations at every turn, it’s likely you or someone you know was glued to the tube as this spectacular victory unfolded. I know I was. And as I watched “el jogo bonito,” I was reminded of three simple lessons that translate well from the pitch to the office. Soccer World Cup

#1: Deal with the draw

When the groups were decided for this year’s World Cup last December, things didn’t look great for the USWNT. Although ranked No. 1, the USA drew Australia, Sweden, and Nigeria—affectionately called “the Group of Death” due to its having the highest cumulative FIFA points of any group. After group play, the USA had to overcome the upstart Colombians, the Chinese, and Germany to make its way to a rematch against 2011 World Cup winner Japan. This was hardly the “easy road” to victory. Rather than shrinking away from the steep climb, the USWNT welcomed the challenge and used it as motivation during training.

The same should apply to you when confronting difficult employee relations issues. The myriad challenges of managing personnel for any workforce can be daunting. Many times, we inherit the troublesome employees that another department or a previous HR manager didn’t want to deal with. Shying away from these employees or their problems will not make them go away. In fact, ignoring these problems will likely make them worse.

For example, say you have an employee whose production is severely lacking and has been for some time. Whenever you’ve tried to address the issue in a constructive way in the past, the employee gets defensive and makes a scene, which makes both you and the employee’s coworkers uncomfortable. So rather than proceeding past verbal warnings to a written discipline or performance improvement plan, you’ve decided to just sit on your hands and wait it out.

Perhaps, you’re hoping the employee’s performance will improve (miraculously) or he/she will find another job. But while your deft scheme of “wait and hope” may keep things quiet and cordial around the office, what you are really doing is telling the troublesome employee everything is OK with how they are performing now. Plus, you are sending the signal to your good employees that how they perform doesn’t matter either. Why should they keep giving extra effort if they can just be lazy and throw a hissy-fit to avoid consequences?

The point is, being an HR professional isn’t an easy job. That is why the other managers and C-level employees created your department—to deal with the tough issues. So, if you are faced with handling the “Employees of Death” at your company, take a tip from the USWNT and meet the challenge head-on.

#2: Avoid the “own goal”

Aside from the frequent flashes of brilliance, the Women’s World Cup also saw one of the most devastating sources of heartache in soccerthe “own goal.” With the game tied against Japan in the last minute of stoppage time, England defender Laura Bassett attempted to stop a cross by Japan by extending her right leg, only to see the ball deflect off her foot, over her goalkeeper’s head into the bottom of the cross bar, and fall across the line for a goal to Japan.

Unfortunately for England, this isn’t the first time the Brits have experienced a heartbreaking loss in the elimination rounds of a World Cup. (I’m talking to you, Diego Maradona.) What’s more, the resulting devastation wasn’t for a lack of effort. Indeed, had Bassett not reached out for the ball, it may very well have gone into the waiting feet of the Japanese striker for a one-on-one duel with the keeper. And had the ball hit Bassett’s foot at impact, it may have deflected out of bounds rather than into the goal, at least forcing the Japanese attack to reset for a corner.

The prospect of the “own goal” is no less real in the world of human resources. Try as you might to get a grasp on all the important issues in the world of HR, many situations require the help of a legal professional. A familiar illustration would be employee requests for accommodation. With the Americans with Disabilities Act’s loose definition of “disability” and the Equal Employment Opportunity Commission’s aggressive stance on disability issues, employers might be quick to accept an employee’s accommodation request just to keep from being labeled discriminatory.

On the flip side, the employer might be too quick to reject an accommodation (or fail to entertain the request altogether) to rid itself of an employee who the employer thinks may be trying to “game the system.” Either way, failing to consider all of the pertinent factors in making this decision is the equivalent of sticking your foot out and hoping for the best. While you might get away with it, the consequences of a bad bounce can have real, long-term effects on you and your company. Instead, in these tricky situations, consult a neutral third-party or a trusted legal professional to help you set up your best course of action.

#3: Best defense is a good offense

If you’re an American, I hope you watched the World Cup final. Not only was it played just one day after the celebration of our nation’s Independence, it was freakin’ awesome! Within just the first 15 minutes, the United States jumped out to a 4-0 lead, mainly on the right and left feet of Carli Lloyd. Lloyd put the cherry on top of her hat-trick by chipping Japan’s goalie from just across the midfield stripe—MIDFIELD!

The American onslaught put the USWNT so far ahead of Japan that it was almost certain, even with nearly 60 minutes of play left, that the daughters of the land of the rising sun would not be able to overcome the deficit. And they weren’t. Despite Japan’s two-goal effort and relentless attack in the final 20 minutes, America captured its first World Cup title since 1999.

In the workplace, getting out ahead of your potential problems is the best way of ensuring you stay in the lead when it comes to common employee issues. You can start by making sure your employee handbook and employment policies are up to date. These policies are often affected by state and local laws, which are subject to change any time the legislature is in session, and often with less press. Others can be changed by agency rulemaking, without the necessity of new legislation.

Take, for instance, the U.S. Department of Labor’s recent announcement of their proposed amendments to the Fair Labor Standards Act’s (“FLSA”) “white collar” exemption tests for executive, administrative, and professional employees. The proposed rule more than doubles the annual salary required for an employee to be considered exempt from overtime or minimum wage under the FLSA’s white collar exemptions. Such a rule likely will drastically affect many employers’ operations should it take effect in some form or another.

Employers must stay on top of these changes to avoid getting tripped up by changes in the law. A thorough review of your policies will make sure your company is in the best position to deal with new changes to the law. You also should make sure your workforce receives notice of any changes and that you train your supervisors on how to deal with the administration of any new policies. In the employment world, your supervisors’ actions can be imputed to the company, so it’s important they understand the important points of any new changes.Failing to ensure your workforce is adequately trained can nullify the impact of having gone through all the trouble to update your policies in the first place.

Lastly, audit your practices. Many business practices develop far beyond the watchful eye of the HR department out of a necessity to meat business needs. By continually auditing what your company actually does, you can make sure you are doing your part to prevent potential legal blunders that may arise from the daily grind.

Mad Men ends: What have we learned?

May 19, 2015 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

The seven-season-long nonstop drink-and-smoke-a-thon that was Mad Men has come to a close. Were you entertained? Were you satisfied? Better yet, did you learn anything?800px-Mad_Men_(logo).svg I will spare you my personal thoughts on the merits of the ending as there are countless commentaries available on the Web. (Really, it’s amazing how many there are.) Suffice it to say that the “ending” appeared to bring more new beginnings than closure: Roger Sterling’s (third) marriage to Marie Calvet; Joan’s new production company; Pete Campbell’s new job at Lear Jet; Ken Cosgrove at Dow Chemical; Peggy and Stan finally admitting they loved each other (though no one makes falling in love more awkward than Peggy Olson); and, last but not least, Don/Dick Draper/Whitman with his back to the California coast dreaming of the most iconic Coca-Cola ad of the 20th Century.

From the perspective of an employment lawyer, one of the most notable developments that occurred in the last few episodes, however, was not one of the evolution (or devolution) of the individual characters, but the constant upheaval at the advertising behemoth, McCann Erickson. The second half of the final season begins with the revelation that McCann’s acquisition of Sterling Cooper was not a partnership but, rather, Jim Hobart’s mastermind plan to fold the old competitor into McCann’s ever-increasing portfolio–even at the expense of several expensive conflicts-of-interest. But, the Titanic of the ad world can’t hold on to it all. And, companies of all sizes and industries can take a few lessons.

The first example is the unrelenting sexual harassment of Joan Harris, which results in an out-of-court settlement. While Joan’s parting gift is likely a drop in the bucket to McCann financially, the nonmonetary cost is a bit more significant. The company not only lost Joan and her ever-burgeoning professional prowess, but also her Rolodex. Sure, McCann has lots of people with connections, but they could still have Joan’s, too, had they not been such pigs. Also, there is nothing said of any recourse to responsible harassers within McCann. Because the setting is 1970, it’s easy to conclude that Jim Hobart feels Dennis and Ferg are infinitely more valuable to McCann than Joan. In today’s world, however, this view is shortsighted to say the least. Having not been counseled, the harassers are likely to repeat their actions, setting the scene for potential legal action down the road. Moreover, the company’s failure to respond to complaints of alleged harassment damages its ability to establish the affirmative defense in later litigation. Companies should have dedicated lines of communications for employees to communicate complaints of this nature and must respond with internal investigations and, where necessary, disciplinary action.

Then, there was the swift exit of Pete Campbell to Lear Jet. While I never personally liked Pete’s character, a consistent staple of the plot line was his solid ability to manage clients. As a result, his contract with McCann was apparently airtight, and his buyout sizable. Still, this didn’t keep him from making the move when a better opportunity came calling. The lesson here is not so much legal as it is practical: Employees come and go–especially talented ones. Such is the natural order of things. So, the best thing an employer can do is to make sure it is protected if and when this turnover occurs. If you have employees like a Pete Campbell, who represent your direct contacts with your clients and customers or who have access to confidential, trade-secret information, you should take steps to protect those business interests.

Noncompete, nonsolicitation, and nondisclosure agreements are not always necessary but can be very helpful in some cases. More important, these documents don’t draft themselves and magically appear when you need them. Business owners must take the time to put thought into the specific business interests they are seeking to protect and should typically enlist the help of a professional to tailor these agreements to their needs and the laws of the states in which they may be applicable. Even if the agreements are in place, when  an employee or former employee challenges or breaches these agreements, the company must make a business judgment on how far it is willing to go to enforce such an agreement, as this type of litigation can have ancillary consequences to client relationships or market reputation.

Lastly is the real McCann’s handling of its role in the show. If you have read any commentaries about the show or are familiar with the world of advertising, you may be aware that McCann is actually a real company. While reports state McCann wasn’t consulted on the details of the show’s plot, the company has apparently played along by commenting on Twitter about the ups and downs of its made-up history on the show. (Though — it is apparently true that McCann was responsible for that iconic Coca-Cola ad seen at the end of the finale.) Credit should go to McCann for its good-spirited response to its role in show. While the company certainly could have responded negatively to being used as the villainous backdrop for the final season, it has instead chosen to play along, which has resulted in an uptick in its notoriety. Granted, not every circumstance can be handled with the stroke of a pen. In this situation, however, McCann’s savvy serves as a lesson to business owners about the ability of a well-crafted response to diffuse conflict in many instances.


Business lessons from WrestleMania 31

March 30, 2015 - by: Josh Sudbury 3 COMMENTS
Josh Sudbury

The biggest sports entertainment event of the year is in the books. Did you miss it? Nope, I’m not talking about the NCAA Tournament or even the Cricket World Cup—by the way, you can rest easy since Australia beat New Zealand by 7 wickets to capture its 5th Championship—I’m talking about WrestleMania 31. Yes, the penultimate event for the more-than-semi-scripted man drama took place on Sunday before a live audience of 76,976 at Levi’s Stadium in Santa Clara, CA, and countless millions watching at home on pay-per-view. wrestlemania

WrestleMania didn’t just deliver at the box office. The event featured show-stopping action from big name headliners, both past and present. For those of you who missed all that glorious “wrastlin,’” I’ll give you the 30-second recap: The Big Show defeat 20-plus wrestlers to take home the trophy in the 2nd Annual Andre the Giant Memorial Battle Royal; Triple H (who entered the ring dressed as the Terminator) defeated Sting after both “D-Generation X” and “nWo”—including The Real American himself, Hulk Hogan—intervened on behalf of both fighters; John Cena defeated Russian fighter “Rusev” (who entered the venue on nothing less than an actual TANK!) to win something called the “United States Championship belt”; Daniel Bryan climbed a ladder and out-head-butted Dolph Ziggler to grab the “Intercontinental” Championship belt; The Undertaker laid to rest Bray Wyatt with a move known as the “Tombstone Piledriver”; and, most importantly, Seth Rollins curb-stomped his way to the WWE World Heavyweight title, defeating Brock Lesnar and Roman Reigns. Oh yeah, and Dewayne “The Rock” Johnson called on Women’s UFC Champion Rhonda Rousey to clean up a little trash in the ring. Whew! I’m tired just describing it.

But what the public doesn’t see in this grand spectacle is the small army of attorneys, agents, and other business people it likely takes working behind the scenes to put an event like this together, both logistically and in terms of arranging appearance agreements for the special guests such as The Rock and, well, I will stick to calling her “Ms. Rousey” out of both respect and fear. The business of the WWE is entertainment—in massive, action-packed doses. And there is no doubt it takes an equally large amount of planning and negotiations to make that happen.

Although your business may not be to the same scale, it is likely that it takes more than just flipping the lights on to turn a profit. Your employee relations are no different. Successful employee relations takes planning.

Do you have an employee handbook? No—you should probably get one. Woooooooh!

Got a handbook? Good—when was the last time it was updated? Never? Uh-oh. If your handbook’s last revisions bear the same date as Brutus “the Barber” Beefcake’s last title bout, you’ve probably missed some important changes in the law.

Handbook: check. Updated: check. OK, Mr. Wonderful, good job. But, to ensure you and your company are in the best position to prevent and/or defend against lawsuits by current and former employees, you should audit your operations, at least annually, to make sure your managers and supervisors are properly interpreting and applying these policies on a day-to-day basis. Forget this step and you could get “clotheslined” by a lawsuit.

Taking these few, simple steps can go a long waytoward helping your company prevent unnecessary litigation and ensure you retain the belt as the undefeated, heavyweight champion.

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