If Bill Cosby is wearing a garish sweater, this must be 1980s TV!

March 27, 2014 - by: Andy Tanick 0 COMMENTS
Andy Tanick

A few weeks ago, I saw a news story about how the last of the baby boomers are turning 50 in 2014. “Wow, that’s old,” I thought, until I realized that I’m 53. Then, as if I needed any further reminders of my elder statesmanship, one of the legal assistants in our office, a 20-something, accused me of “making up” the fact that there used to be a popular singer named Bing. Sigh. (And for the record, he was popular way before my time.)  CosbySweater

That’s it, I decided. Time for a blog post about popular culture from an era that none of those rascally whippersnappers will even remember: the 1980s.  That’ll teach ‘em not to be so darn … er, young. So charge up your brick-sized cellular phone, press “play” and “record” simultaneously on your 150-pound manually-operated VCR, and run your comb through that mullet: We’re going to take a spin through “Employment Law in1980s TV-Land.”

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Trash talk or abuse? NFL debates banning the N-word

March 16, 2014 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

In any other NFL offseason, with the hype over combine results all over the television and free agency in full swing, it’s likely many football fans might not notice the NFL Competition Committee meeting in the background. But this year, the committee is making news as it mulls over a controversial potential new rule that could result in individual players being penalized for using the N-word. The potential move is another effort by the NFL to clean up its image in the wake of scandals such as the Richie Incognito/Jonathan Martin scandal that surfaced during last season.shutterstock_10634185

The debate over the new rule has brought about opposition from at least a few current NFL players, such as Seattle cornerback Richard Sherman, who told Sports Illustrated’s Peter King that banning the N-word is “an atrocious idea,” adding that he feels its “almost racist” for the league to target only one word. Sherman stated that the N-word is present “in the locker room and on the field at all times” and that he hears it “almost every series out there on the field.” Free agent linebacker D’Qwell Jackson sees it a different way. According to King, Jackson told him he feels the rule would be great for the game, assuming the NFL could get it implemented, although he noted that enforcing the rule could prove difficult. As King’s article points out, the penalty’s stigma could be significantly more far-reaching than the yards assessed: read more…

I believe you have my stapler

March 04, 2014 - by: David Kim 2 COMMENTS
David Kim

shutterstock_44644189Ever flip through the channels on a lazy Saturday afternoon and come across an oldie but goodie? This happened to me recently with the movie Office Space, a workplace classic. While I can’t imagine a world where everyone hasn’t seen Office Space, here is a quick plot summary.

Peter Gibbons (played by Ron Livingston, pictured here) generally has no motivation in life. He hates his job as a programmer at Initech, and hates his boss Bill Lumbergh, a smarmy coffee-mug-holding you know what who makes Peter work weekends and constantly bugs him about the status of his “TPS reports.” Convinced to attend an occupational hypnotherapy session where the therapist dies of a heart attack after hypnotizing Peter, he wakes up relaxed and with a new take on life.  He ignores Lumbergh’s calls and, instead of heading into work over the weekend, goes to Chotchkie’s (a T.G.I. Friday’s parody) and asks out Joanna, a waitress played by Jennifer Aniston, whom Peter seemingly has had a crush on for a while.

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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 Deadspin.com 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 that.football 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.”

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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.

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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.”

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Arbitration: then (in a Michael Crichton novel) and now

November 01, 2013 - by: Matt Gilley 3 COMMENTS
Matt Gilley

The late Michael Crichton had an interesting contrarian streak for a popular fiction novelist. In one of his last novels, State of Fear, he stuck his thumb in the eye of the global warming/climate change “consensus” (it remains the only novel I remember reading that had footnotes). 

Readers saw his contrarian streak a decade earlier, too, in Disclosure which also became a motion picture featuring Michael Douglas and Demi Moore. Dislosure hit shelves at a time when sexual harassment was taking a prominent place in news media reports about the corporate world but, in a twist, the plot centered on a Machiavellian ploy by a female executive to use harassment allegations to edge out a male counterpart.

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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.

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Skeevy TV raises harassment threshold for sitcom writers

August 12, 2013 - by: Brian Kurtz 1 COMMENTS
Brian Kurtz

Law school will ruin your life in so many ways.

I used to watch television in a state of blissful ignorance. Holes in the plot? Didn’t notice. Inconsistent character behavior week to week? Didn’t care. Offensive, sexually charged dialogue? Didn’t mind at all.

Then I became a lawyer, and now my clients are employers who do mind that last kind of thing when it happens in their conference rooms, around their water coolers, or wherever else their employees congregate to ogle one another. Sexual harassment is a serious thing, the public loves salacious stories, and juries love to punish the wallets of companies that permit drooling, predatory managers to roam the hallways. When the boss whispers all sorts of naughty things to his secretary, it’s a lawsuit. When he does it on my Sony HD during prime time, it’s entertainment!

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