Coaching reVOL-UTion: Schiano, Currie, and what school’s lawyers are analyzing right now

December 05, 2017 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

The Tennessee coaching search has produced high drama over the past two weeks. For Vol fans like myself, it has felt at times like absolute torture and at other times like just a little bit of torture. “Vol-nation” was in better spirits after the hiring of Phillip Fulmer as Athletic Director was announced, and many are pleased with the selection of master-recruiter and talented Alabama Defensive Coordinator Jeremy Pruitt as the next head coach of the Vols. Details surfaced early Thursday that Pruitt’s new contract is for 6-years at roughly $4 million per year.

Despite this stability, however, the University of Tennessee is far from out of the woods. That is because the administration is staring down the barrel of two potentially costly legal battles over separate memorandums of understanding (MOUs) with would-have-been head coach Greg Schiano and outgoing Athletic Director John Currie. As a legal blogger and avid college football fan, I have never been more excited to bring you legal analysis.

Schiano’s MOU

As you might recall, the Schiano hire at Tennessee was torpedoed after fans and boosters responded in an overwhelmingly negative way via social media and some alleged behind-the-scenes protests. It was later reported that Schiano may seek compensation for Tennessee backing out of an MOU that was allegedly signed by then-athletic director Currie. For starters, the biggest problem in giving any decided legal opinion is that we don’t have a copy of the MOU. In the absence of the actual Schiano MOU, most have looked to the MOU for current UT head basketball coach Rick Barnes for guidance about what might be in Schiano’s agreement. The Barnes MOU contains basic contract language, i.e., offer, acceptance, description of duties, compensation, and termination provisions. It is essentially a legally binding agreement and not an agreement to agree, even though it does contemplate the parties would sign a more detailed agreement later. The MOU contains standard for-cause/no-cause termination provisions outlining the parties’ duties in the event of a separation. The Schiano MOU is likely structured similarly.

While initial reports stated that Currie signed the document, reports have since surfaced that UT Chancellor Beverly Davenport did not sign the MOU, leaving some question about its enforceability. The question remains whether Currie’s purported signature on the MOU makes the document legally binding when UT’s top brass didn’t sign the agreement. The Barnes MOU states it would constitute a legally binding agreement “when fully executed.” I added the emphasis to “fully” because of the report that Currie’s is the only Tennessee signature purportedly on the agreement. By contrast, the Barnes agreement required the signatures of the athletic director, the chancellor, and the treasurer and CFO. That is consistent with Article IV, Section 8, of the UT Bylaws, which provide in pertinent part “all contracts . . . and other instruments of legal obligation shall be executed by the President or another University Officer after any required legal and fiscal review.” The position of athletic director—which Currie held—isn’t identified as a “University Officer” capable of executing such agreements. Thus, blank signature blocks for the university officers on Schiano’s MOU would tend to support the argument that although “executed,” the agreement wasn’t “fully” executed and therefore isn’t enforceable.

Schiano, however, may argue Currie had sufficient or at least apparent authority to bind the university so that Schiano could legitimately rely on Currie’s signature alone in believing the deal was done. Additional evidence about the university’s previous practice in such circumstances, such as other documents similar to the Barnes MOU, would be necessary to give a more definitive take on Schiano’s chances of success. But you can bet he and his agent are likely to push the issue, given that big money is at stake. A “no cause” termination would bring the MOU’s buyout clause into play. The Barnes MOU provided for a buyout worth $1 million per contract year remaining in the event of a no-cause termination. That was seemingly based on Barnes’ $2.5 million annual salary. Schiano’s MOU was likely worth much more, which would most likely result in a similarly higher buyout. Given the circumstances under which the deal crumbled, it is difficult to see how UT could argue it had cause to terminate the agreement. All facts pertinent to cause, including Schiano’s coaching history and The Washington Post article linking him to the Jerry Sandusky case at Penn State, were all well-known before negotiations began.

If Schiano presses the issue, UT will have to weigh its options in deciding whether to fight or try to negotiate a mutual resolution. That, too, could prove costly. A recent example can be found just down the road in Gainesville, Florida, in the form of (UT’s SEC East rival) the University of Florida’s termination of former head coach Jim McElwain. That termination, which was “for cause,” has reportedly resulted in a settlement paying McElwain roughly $4 million of his $12.9 million buyout. Since Schiano and McElwain reportedly share the same agent, the success of settlement negotiations in other termination cases may embolden Schiano to at least kick the tires with UT to see what he can get. 

Currie’s employment status

The fallout from the Schiano debacle is far from over. Just this past Friday, Currie was “suspended with pay” by Chancellor Davenport. Despite “suspending” and not “terminating” Currie, Davenport hired former UT head coach and Hall-of-Famer Phillip Fulmer to assume the AD duties full-time, effective immediately. The hiring of Currie’s replacement while he is still on staff likely means UT administrators and counsel are conducting an internal investigation to determine whether they can fire him for causea decision that may alleviate the burden of having to pay Currie’s own buyout, which reportedly stands at $5.5 million. Whether the university can establish he acted outside of his authority with regard to the botched hiring of Schiano and his MOU or whether Currie’s desperate “Hail Mary” attempts to hire Mike “the Pirate” Leach to succeed Butch Jones was the final nail in his coffin remains to be seen.

Remember, while all of this potential cash exchange plays out on your Twitter feed, Tennessee has essentially agreed to honor former coach Butch Jones’ $8.25 million buyout. Oh, to have been a football coach where “success” is measured by a committee and under-performance guarantees you money! Whatever, man, just Swing Your Sword.

Magnum, SMH

September 20, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Who could possibly sully the sainted memory of Thomas Magnum, fictional private investigator and iconic 1980s bon vivant? All 45 of these guys, apparentlyMan partying

Here’s a quick hit in case you don’t want to follow the link: Bachelor partygoers decided they would take in a baseball game in Detroit between the Tigers and the Chicago White Sox. All 45 partiers (if only I were so well-liked) dressed as television’s best-known Detroit Tigers fan, Magnum, P.I. The fellows must have left their Higginses behind because they weren’t on their best behavior (hijinks during a bachelor partyperish the thought!). Eventually, the Tigers brass kicked all 45 Tom Selleck doppelgängers from Comerica Park.

Their sins? One of them was smoking and others were catcalling women in the crowd (no mention whether all those red Hawaiian shirts also crossed a line). One member of the party despaired that the Tigers ruined everyone’s fun because of a few bad pineapples, but, honestly, who could possibly separate one naughty Magnum from the other 44 angels?

You may be asking, “Matt, this is amusing and all, but what does this possibly have to do with HR?” That’s a fair question. The HR intersection is that employers need to be watching their patrons’ behaviornot just their employees’to avoid a hostile work environment. Employers can be liable for the harassing conduct of visitors, vendors, and customers just as they can be liable for the actions of supervisors and co-workers. If you are aware that a third partyor third parties, like four dozen Thomas Magnum lookalikesmay be harassing your employees or causing a hostile environment, you have a duty to take prompt remedial action to correct the problem.

So bravo to the Tigers. We don’t know whether the revelry was directed at any team employees, but the team had a problem on its hands and immediately corrected it. Sure, it probably cost them some concession revenueafter all, 45 guys could drink a lot of Old Dusseldorf. Still, you should heed the team’s example and be vigilant of your patrons’ behavior for the benefit of your employees.

In fact, you’ll probably have to be more vigilant. Potential harassers are rarely this loud and in-your-face, and they almost never wear identical, splashy tropical shirts.

 

Train ‘em up

September 12, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

If you’re a poor soul who’s followed enough of my posts to spot patterns, you’ll spot one here. Maybe I’m a broken record, maybe I’m simple-minded, or maybe I really like baseball.  Personal development career

Baseball speaks to me. The U.S. is still a blip in the long course of human history. We cobbled together our identity from bits of preceding cultures, but baseball is one thing we claim as uniquely ours. Annie Savoy, Susan Sarandon’s character in Bull Durham, put it well:

“Walt Whitman once said, ‘I see great things in baseball. It’s our game, the American game. It will repair our losses and be a blessing to us.’ You can look it up.”

I never go very long without giving Bull Durham another look and, with the Majors moving into the stretch run, it’s been on my brain. Bull Durham serves you a tale of life at baseball’s lower rungs; the spring, summer, and fall rhythms of my adopted Carolinas; and the humor of dime-store philosophy. It’s also irreverent and bawdy, which naturally holds my attention. (I still laugh at the Little League coaches back in the day who took their teams to see the movie without doing their due diligence; those kids got an eyeful and an earful.)

Bull Durham is also a story of molding talent and potential into professional success, which is an angle I suspect interests our readers. The movie’s wise sage, Crash Davis (Kevin Costner), is a veteran minor league catcher with not-quite-enough talent but a Hall of Fame professional bearing. His apprentice, Ebby Calvin “Nuke” LaLoosh (Tim Robbins), is a flamethrowing trainwreck of a young pitcher who’s as outlandish as his name. The big league club dispatched Crash to school Nuke in the ways of elite baseball and basic adulthood, and the two soon threw off a bit of a Yoda/Luke vibe (if Yoda were a switch-hitting whiskey aficionado and Luke had the maturity of a drunk baby).

Even still, it worked. Nuke caught on, learned to harness his wild pitches, and the big club pulled him out of the bus leagues up to the majors. Why? I think we have to credit Crash’s unconventional, wild, and uncompromising approach, which mixed odd philosophy with practical advice and forced Nuke to fail (and thus learn).

Consider the following examples that we can all adapt from time to time:

  • During a conference on the mound, Crash ordered Nuke, “Relax, all right? Don’t try to strike everybody out. Strikeouts are boring! Besides that, they’re fascist. Throw some ground ballsit’s more democratic.” Very good advice. We all have other people around us to carry the load. If Nuke didn’t slow down, he may have killed his arm and spent the next three decades selling encyclopedias.
  • By that point in their lives, Crash had forgotten more baseball than Nuke might ever learn; still, he waived off Crash’s pitchesa huge no-no for just about any pitcher.  Sure enough, the next batter blasted a home run. Again on the mound, Nuke wondered, “God, that sucker teed off on that like he knew I was going to throw a fastball!” Crash turned and said, “He did know … I told him.” Lesson given, lesson learned. Nuke dutifully threw the pitches Crash called from then on. Recognize that advice is meant to channel your potential, not to hold back your supposed natural brilliance.
  • Crash didn’t limit Nuke’s lessons to baseball. There were tips on handling the sports media. There were tips about life in the majors. And there’s this gem, which isn’t all that meaningful but is too good to leave out: “When you get in a fight with a drunk you don’t hit him with your pitching hand.”  Hey, you never know what advice is going to come in handy when.

So, dear readers, which one are you? If you are Crash, are you willing to take some time and give someone the chance to fail, all in the service of making them a better person on the other end? If you are Nuke, are you willing to recognize experience and wisdom, take your lumps, and emerge better for it? I’m willing to bet that the most successful mentoring, managing, and training occurs when one is Crash, the other is Nuke, and both are crazy enough to make it work.

I just don’t think I can look that up.

Standing ovation for Adam Jones at Fenway

Kristin Starnes Gray

Last Monday, the Orioles made headlines for more than just their 5-2 win over the Red Sox at Fenway Park.  Orioles player Adam Jones reported that Red Sox fans called him a racial slur several times and threw a bag of peanuts at him as he was entering the dugout. Police reportedly ejected 34 people, including the person who threw the bag of peanuts. The Red Sox, Boston Mayor Marty Walsh, and MLB Commissioner Rob Manfred all condemned the fans’ behavior.  Fenway park at sunset

The following day, fans welcomed Jones with a standing ovation at Fenway Park before his first at-bat. Despite recent hostility that has arisen between the two teams after Manny Machado injured Boston’s Dustin Pedroia, Red Sox starter Chris Sale stepped off the mound on Tuesday to allow more time for Jones’ ovation. In addition, Jones thanked two Boston players, Mookie Betts and David Price, for their supportive text messages. African-American players for other teams also have come forward about their experiences with being called racial slurs by fans during games.

While we typically think of harassment in the workplace as occurring between two employees, Jones’ experience is an example of how important it is to be vigilant about the reprehensible behavior of non-employees. Title VII  of the Civil Rights Act of 1964 is the federal law that prohibits discrimination in the workplace based on various protected categories, including race.  As the Equal Employment Opportunity Commission has explained, “Harassment can occur in a variety of circumstances . . . . The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee . . . . The employer will be liable for harassment by non-supervisory employees and non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.”

Some important steps employers can take to prevent harassment in the workplace include, but are not limited to:

  • Establishing anti-discrimination and anti-harassment policies with complaint procedures;
  • Communicating those policies and procedures to all employees;
  • Training supervisors on what to do when an employee complains; and
  • Taking prompt and appropriate corrective action to address employee concerns.

In the meantime, let us take to heart these two teams’ classy showing of solidarity and mutual respect. Let this be an example to us of, not only good sportsmanship, but also the importance of treating each other with dignity and following the Golden Rule.

Developing a PIP that will make employees comeback heroes—Tom Brady style

February 07, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

I’m sure you all watched or heard about the Super Bowl on Sunday night: Despite the fact that his team was trailing by 25 points, Patriots quarterback Tom Brady led New England on the greatest comeback in Super Bowl history. Brady’s season began with a four-game suspension for his involvement in the “deflategate” scandal and ended as Super Bowl MVP. It’s a comeback within a comeback. Despite not knowing much about sports, as a New Englander, I would be remiss if I let this opportunity pass without drawing some sort of analogy to HR. Because my law firm is based in Atlanta, I admit, I’m cowering just a little.  Patriots' parade in Boston for winning Super Bowl XLIX

As HR professionals, we are often called upon to assist managers in addressing concerns with employees who appear to be falling behind company expectations. How can we encourage employee “comebacks” and assist supervisors by providing effective tools to help employees to do so?

When verbal counseling and written disciplinary action have not been successful at correcting performance-related deficiencies, a performance improvement plan (PIP) is often used as a means to correct performance and avoid termination. Developed and used properly, a PIP can be an effective tool. Here are recommendations for developing an effective PIP:

  1. Outline, with specificity, performance-related concerns, i.e., the reasons for the PIP. This section should be very detailed (in terms of facts and dates), include applicable requirements from the job description, and summarize/reference previous performance-related discussions/discipline.
  2. Establish specific quantifiable and realistic goals for the PIP so that the employee can clearly understand what is expected. The PIP should include consequences for failing to meet the goals.
  3. Provide a list of available tools. For example, the employee can be provided with training that targets any deficiencies, whether inside the organization or through a third party. Alternatively (or additionally), a mentor can be assigned to answer questions on an ongoing basis. The employee should be given an opportunity to discuss what tools he/she believes are necessary to meet the goals outlined in the PIP. The tools may change as the employee progresses through the PIP.  The employee should be given an opportunity during feedback meetings to discuss whether any additional tools are needed.
  4. The PIP should include a schedule for the feedback meetings, which should be frequent and meaningful. The employee should be aware of how he/she is progressing through the plan at all times. The meeting frequency may need to be adjusted depending upon how the employee is progressing. The discussions should be calm and free-flowing.
  5. The PIP should include a duration. The time period may need to be adjusted depending upon the particular circumstances. For example, if some progress is made and there is promise but the employee hasn’t yet reached a satisfactory level of performance, the time period may need to be extended.
  6. The PIP should be signed by the employee.

Hopefully, the PIP will result in the improvement in overall performance, even without the assistance of Lady Gaga falling from the sky.

 

Hope Solo: too little, too late?

August 26, 2016 - by: Kristin Starnes Gray 4 COMMENTS
Kristin Starnes Gray

Hope Solo’s derogatory comments about Sweden’s national women’s soccer team have earned her a six-month ban from U.S. Soccer and the termination of her contract. U.S. Soccer president Sunil Gulati released a statement this week saying, “The comments by Hope Solo after the match against Sweden during the 2016 Olympics were unacceptable and do not meet the standard of conduct we require from our national team players.”  However, many are questioning whether Solo’s punishment for calling Swedish players “cowards” is too little and too late.

Despite her World Cup title, two Olympic gold medals, 202 national team appearances, and 102 clean sheets, Solo has long been a loose cannon with her outrageous behavior overshadowing her performance as a player.  As examples:Women soccer team ticker parade

  • Solo was dismissed from the team during the 2007 World Cup after publicly criticizing her coach’s decision to bench her in the semifinals.
  • During the London Olympics in 2012, Solo criticized sports commentator Brandi Chastain, one of the team’s iconic former players.
  • In June 2014, Solo was charged with domestic assault after an incident involving her nephew and half-sister.
  • In January 2015, she was suspended from the team for 30 days following her husband’s arrest for driving under the influence in a U.S. Soccer van with Solo as his lone passenger.

Thereafter, Solo appeared to be trying to rehab her reputation and has also served as one of the faces of the team’s demands for equal pay compared to their male counterparts.  These efforts to salvage her reputation fell apart when Solo accused the Swedish players of being “cowards” following Sweden’s defeat of the U.S. team in the Olympics.

Given that the Olympics and the World Cup are now behind us, the suspension means Solo will be missing only some friendly matches for the U.S. team. Critics point out that the disciplinary action for relatively tame misconduct (compared to her past antics) comes at a time when the U.S. team has little to lose on the field and years to find another goalkeeper before the 2019 World Cup.  This leaves many questioning whether U.S. Soccer’s move is more symbolic than substantive.

As employment lawyers, we advise our clients to deal with disciplinary issues in a timely manner, be consistent, and document, document, document. Employers have additional risks of retaliation claims when the employee has recently engaged in some sort of protected activity, such as complaining of unlawful harassment or discrimination. With Solo’s sex discrimination charge still pending with the Equal Employment Opportunity Commission, it remains to be seen whether she will be pursuing any sort of retaliation claim. Regardless, given her misconduct and the fact that her fellow charge filers have not suffered any adverse employment action, Solo would likely have an uphill battle on her hands.  In the meantime, give us your thoughts on U.S. Soccer’s decision.

Olympics and the power of positivity and unity

August 15, 2016 - by: David Kim 0 COMMENTS
David Kim

They did it again. The Olympics sucked me in. I am an admitted hard core sports fan when it comes to my professional teams, but like most people I’m not usually watching swimming, beach volleyball, or [fill in the blank with virtually any other summer Olympic sport] in my free time. However, I always get captivated by the Olympics, and this summer’s Olympics in Rio is no different.  Excited group of runners with medals

Watching U.S. swimmers Michael Phelps, Simone Manual, Katie Ledecky, and many more achieve success in historic fashion had me on the edge of my seat. I haven’t screamed words of encouragement at my TV that much since Ramsey Bolton got his comeuppance in Game of Thrones this past season.

Watching the US women’s soccer team, the prohibitive favorite to win gold, lose to Sweden in penalty kicks was painful. I haven’t cursed at my TV that much since The Walking Dead decided to not tell us which character met his or her fate at the hands of Negan during last season’s finale (Yes, I’m still bitter about that). Those are just a couple of examples, as my viewing has taken me to uncharted waters, including archery (what if someone sneezes?), table tennis (strangely fascinating), and whatever sport Americans may have a chance to earn a medal (there are a lot of them).

Like many others, I’m obviously aware of the many problems related to these Olympics that don’t have your “warm and fuzzy” vibe. Whether it’s doping scandals, water pollution, Zika, violence in Rio, or the economic ramifications to the residents of Olympic host countries and cities, there are very important issues to be addressed. In fact, as an aside, Real Sports with Bryant Gumbel did an interesting piece on the corruption of the IOC and the negative economic impact of Olympics upon their hosts that is eye-opening to say the least.

While the aforementioned issues are undoubtedly serious concerns that need solutions, and hopefully will be remedied, I would be lying if I said I wasn’t still enjoying watching our nation’s Olympians and learning about the journeys they have traveled. So why am I and so many others interested in the Olympics? While some simply love the competitive and thrilling aspect of sports, there’s a sense of unity and positivity when watching the Olympics. Americans are proud of their country. They want their athletes to do well, their country to do well, and rooting for something that is universally unifying is a positive experience. Deep down, everyone wants something that is positive and uplifting.

Employees want that, as well. You know the sayinga happy employee is a good employee. Well, it’s generally true. There are also numerous studies that show that a happy employee is a more productive employee. But you can’t make an employee be happy. Seriously, you literally and legally cannot make an employee be happy. The National Labor Relations Board has held on a number of occasions that workplace policies that require employees to act positively in the workplace, or to maintain a positive work environment, are unlawful. The most recent ruling, a May 2016 determination, held that T-Mobile’s and MetrocPCS’ employee handbooks were unlawful, including provisions that required a “positive work environment” because this broad requirement could infringe upon employees’ Section 7 rights to discuss the terms and conditions of their employment. In other words, employees would be afraid to say anything that could be deemed “not positive” for fear of reprisal.

Of course, this doesn’t mean you are saddled with negative employees. Typically, a “negative” employee acts out this frustration through behavior that may violate other policies and workplace rules, whether it be interacting appropriately with customers and coworkers, meeting job requirements and deadlines, or otherwise performing the essential functions of one’s occupation. It just means you cannot terminate an employee on the basis that they are not being positive at work.

So while you can’t require people to be positive at work, it of course is important for employers to take steps to create a positive workplace culture so that employees are in fact happy and productive. This comes down to developing and maintaining good morale through communication, motivation, and respect, which starts at the managerial and supervisory level. If you can find a way to create unity within the employees in your workforce, they will naturally be more positive and productive. It’s not easy to do and will take a lot of commitment and planning. But if the Olympics have taught me anything, it’s that commitment can ultimately pay off in the end.

Great expectations? Let’s tip off with reasonable expectations

June 27, 2016 - by: David Kim 0 COMMENTS
David Kim

Expectations are a funny thing. They can be good in that they set forth an objective measure for expected performance, goals, and standards of conduct. On the other hand, they can turn bad if they are unreasonable or prone to differing or subjective interpretations.

Watching the NBA draft last week, I was struck by how these young men (most of whom are still teenagers) are immediately saddled with expectations: expectations from fans, expectations from the team and its front office, expectations from NBA analysts and media members, and countless others. Without even having played a second of professional basketball, Ben Simmons and Brandon Ingram (who went first and second in the draft to PhilaBasketball going through the hoop at a sports arenadelphia and Los Angeles, respectively) have already been anointed the saviors of 76ers and Lakers basketball for the future. My Boston Celtics selected Jaylen Brown with the third overall pick and were almost universally criticized, by fans and pundits alike, for “reaching” for Brown rather than selecting a better talent at that spot or consummating a trade for the pick. And on and on the analysis went with every subsequent player selected.

Whether it’s the NBA or any other professional sport, you always hear of the number-one-overall picks who ended up being busts and never amounted to anything professionally. With respect to the NBA, these names include Greg Oden, Kwame Brown, Michael Oliwakandi, and the list goes on. Then there are those generational talents with unquestionable Hall of Fame credentials such as LeBron James, Shaquille O’Neal, and Tim Duncan, to name a few. But what about those who are very good, solid NBA players?

Take player A,  for example. Last year he averaged 21.4 points a game and 8.4 rebounds and had a Player Efficiency Rating (or PER, a statistic that attempts to boil down a player’s overall contribution into one number) of 22.22. He was injured for a good portion of last year, but these numbers are in line with his statistics the prior year as well. Player B averaged 21.2 points a game and 6.8 rebounds and had a PER of 26.11 (higher than player A due to exceptional defensive performance).

Player A is Blake Griffin, the number one overall pick in 2009. Player B is Kawhi Leonard, the 15th overall pick in 2011. Both are undoubtedly great NBA players. Yet, Leonard is considered a “steal” at his draft slot, having outperformed expectations, as well as a future cornerstone of the Spurs (or another team if he bolts when he is a free agent). Griffin is by no means a disappointment and is still one of the top players in the game, but it can be legitimately argued that Leonard is the better overall player. Toss in the fact that the reigning two-time league MVP Stephen Curry was selected six spots after Griffin, and it’s no surprise that Griffin, despite putting up gaudy numbers, has been criticized for not meeting certain lofty expectations.

What employers can learn from NBA’s approach to expectations

Expectations, whether right or wrong, set the baseline for every relationship, whether it be in the realm of professional athletics or in the context of an employer and an employee. Even if an employee doesn’t have an actual written agreement, expectations are often set forth in the company’s policies, manuals, and procedures. It goes without saying that employers need to ensure that these written policies are clear, unambiguous, appropriately disseminated, and updated as needed.

An employee’s expectations, however, are often reinforced through the employee’s communications with managers, supervisors, and/or human resource representatives as well as through the course of conduct with the employer. It’s not enough that the written policies and procedures provide for a specific type of mechanism. It’s equally important that employers train supervisors, managers, and HR people on how to implement the written policies in an objective and consistent manner and that these individuals are aware of the proper way to handle an inquiry or question about company policies, benefits, or procedures.

Not only does this consistent treatment assist a company in defending against applicable federal and state discrimination, retaliation, and leave laws, but employers should be aware that in some states  a duty of good faith and fair dealing exists in connection with every contract. In some states this contract can simply be based on the employment relationship itself or on handbooks or other written policies (particularly if there is  no valid disclaimer). In such circumstances, an employee can file a claim based on the reasonable expectation of some benefit (whether it be through written policies, communications with supervisors, or even the general course of conduct with the employer), including for alleged promised compensation, bonus, promotion, or other employment-related benefits.

Therefore, employers with clear and consistent messages about their company policies greatly minimize the risk of claims based on an employee’s purported reasonable expectations. So it’s important that you make sure everyone in your operation, from management on down, is on the same page and that you also consider implementing procedures or spot-checks to identify any inconsistencies before they become a problem. And for all you sports fans out there, let’s try to keep our expectations as reasonable as possible, particularly when it comes to these young draftees and their potential immediate impact. If all else fails, there’s always next year.

U.S. Women’s National Soccer Team alleges gender wage discrimination

April 01, 2016 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Five star players of the U.S. Women’s National Soccer Team (Carli Lloyd, Alex Morgan, Megan Rapinoe, Becky Sauerbrunn and Hope Solo) made headlines this week by filing a charge of discrimination with the Equal Employment Opportunity Commission alleging gender wage discrimination against the U.S. Soccer Federation.  In their charge, the players allege that they should be paid at least as much as (if not more than) the players for the Men’s National Team.  The players filed the charge amid contentious negotiations over a new collective bargaining agreement, which have already resulted in a separate lawsuit and serious questions about whether the team will be participating in the Summer Olympic Games in Brazil. Soccer Stars

In their charge, the players allege that they are paid as little as 38 percent of what the Men’s National Team Players earn.  More specifically, the charge alleges that top-tier Women’s National Team Players earn $72,000 per year to play a minimum of 20 exhibition games (“Friendlies,” with no additional pay for games beyond the 20unlike the men’s team which is paid for each game played) and that they earn $99,000 if they win all 20 Friendlies.  Meanwhile, the men earn $100,000 if they lose all their Friendlies and can earn up to approximately $260,000 if they win.  As for the World Cup, the women’s team earned a total of $2 million last year for their championship performance in Canada while the men’s team was paid a total $9 million despite their failure to advance past the top 16 in the 2014 World Cup in Brazil.

If the matter proceeds, the women’s team players will have the burden of proving that: (1) higher wages were paid to a male employee, (2) for equal work requiring substantially similar skill, effort, and responsibilities, and (3) the work was performed under similar working conditions.  Assuming they are able to meet this burden, the federation may offer a variety of affirmative defenses, such as the pay differential being based on any factor other than sex (e.g., economic benefit to the employer).

Anticipating that the U.S. Soccer Federation will respond by offering a nondiscriminatory business reason for the pay disparity (such as women’s professional sports being less popular and less lucrative), the players allege in the charge that the women’s World Cup win and victory tour dramatically increased U.S. Soccer’s bottom line from a projected $430,000 deficit for 2016 to a $17.7 million profit.  Indeed, the numbers released by Fox indicate that last year’s telecast of the women’s World Cup Final against Japan was the most watched broadcast in the U.S. of a soccer game (men’s or women’s) ever.

The President of the U.S. Soccer Federation, Sunil Gulati, responded on Thursday stating, “We think very highly of the women’s national team and we want to compensate them fairly, and we’ll sit down and work through that with them when all this settles down.”  A federation spokesman, Neil Buethe, has also called some of the revenue figures in the charge “inaccurate, misleading, or both.”  The federation has argued that the players’ pay was collectively bargained and that the women’s team players opted for the economic security of a salary-based system (plus provisions for severance/injury pay, health benefits, maternity leave, and other benefits not available to the men’s team) as opposed to the bonus-centric plan under which the men work.  In addition, as U.S. Soccer noted, the World Cup prize money is determined by FIFA rather than by the federation.

By contrast, Solo stated in an interview, “In this day and age, it’s about equality. It’s about equal rights.  It’s about equal pay.  We’re pushing for that.”  She also stated, “We are the best in the world, have three World Cup championships, four Olympic championships, and the [men] get paid more to just show up than we get paid to win major championships.”  Players for the men’s team, such as Tim Howard and retired player Landon Donovan, have offered their public support for the women’s team.  Hilary Clinton has also voiced her support.

This isn’t the first time the women’s team has raised issues of gender equality.  Abby Wambach led a group of players in filing a complaint in Canada about the artificial turf playing surface and pointing out that the men’s World Cup is played on natural grass.  The issue came up again during the team’s victory tour when a game in Hawaii was cancelled due to the artificial turf being deemed unsafe by the players.

As for the currently pending charge, U.S. Soccer will likely have the choice of participating in mediation in an effort to resolve the charge or proceeding with the investigation and submitting a statement responding to the allegations and outlining U.S. Soccer’s position.  In the meantime, submit your comments below and let us know whether you would like to face these women on the field or in the courtroom.

Peyton Manning and retirement–Super Bowl lessons on avoiding age claims at work

February 01, 2016 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

Super Bowl week is here. Everywhere you look (and I mean everywhere) this week, you will be reminded that the “big game” is this Sunday. You’ll be told what kind of chips to munch, the type of pizza to order, the beer, and soft drink to drink, the television or mobile app to watch it on, etc. It’s as if it’s some big media circus instead of a football game! NEWARK, NJ - JANUARY 26, 2014: Denver Broncos' Peyton Manning ar

If you listen closely, though, you might also hear about the two teams playing—the Denver Broncos and the Carolina Panthers. This year’s match-up offers great story lines that even the best WWE writer couldn’t dream up. The one you are most likely to hear about, though, is the battle between the two quarterbacks. The Broncos will field Peyton Manning (whose records and accomplishments should speak for themselves) and the up-and-coming Cam Newton, who led his team to a 15-1 regular season record and only the second Super Bowl appearance in the franchise’s history. The two quarterbacks’ personalities (and styles) couldn’t be more different. Manning’s persona is strictly business, and he frequently out-humbles even himself during interviews. Cam, on the other hand, is a bit flashier, having drawn negative attention throughout the season as a result of his penchant for dancing after scores.

Peyton Manning’s other competition this weekend is Father Time, a relentless competitor who remains undefeated across all sports. Peyton Manning is only 39. But, by NFL measure, he is practically ancient. To put it in perspective, he’s two years older than the next oldest starting QB (whom he defeated last week in the AFC Championship). He’s also the oldest QB to ever start in a Super Bowl, just ahead of his current boss and former Denver Broncos great, John Elway. To be sure, there is no mandatory retirement age in the NFL. Several QBs have played into their 40s. George Blanda even played until he was 48! But, with mounting injuries, that’s not likely to be the case for Manning.

Aging superstars are also likely part of your company. Indeed, a 2014 BLS study showed the U.S. workforce has never been older. Handling workers in their “golden years” can be somewhat tricky. Once an employee reaches the age of 40, he/she gains a new protected class status under federal lawage discrimination. Some states offer the same or similar coverage. It’s at this point that joking with an employee about his eventual retirement goes from playful to painful.

In a recent case, for example, a physician practicing at a Pennsylvania hospital filed suit alleging that when he had expressed an interest in renewing his contract, hospital administrators commented that they assumed the 63 year old would be retiring. The court held the administrators’  statements could form a basis for a jury to either disbelieve the hospital’s asserted reasons for terminating the physician’s contract. Similarly, an Alabama district court recently allowed a pharmacist’s lawsuit to proceed to trialeven where his employer cited numerous examples of the pharmacist’s poor performancebecause his supervisor made certain age-related remarks including asking the pharmacist whether he “planned to retire soon.”

These examples show that age-related comments can undermine even the most legitimate disciplinary actions. Employers would be well served to take certain steps to minimize this risk, including keeping HR professionals directly involved in the performance management process, which includes the communication of employment decisions to employees. Managers should be coached on how to discuss possible adverse actions with employees, to ensure they are aware of sensitive topics to avoid. In particular, managers should be counseled to avoid asking the employee about his/her retirement plans unless required by the business at hand. As Peyton Manning would tell you, preparation is key in all things.

 Page 1 of 5  1  2  3  4  5 »