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.

Steve Jobs, ‘product guys’ and ‘sales guys,’ and your payroll

January 05, 2014 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I have a complicated relationship with thick biographies. Intellectually, I know I should sit there and wade my way through the thick prose devoted to men and women of great consequence. In a way, it’s like broccoli: “Go on, eat it – it’ll be good for you, and what do you mean, ‘I’m not hungry’?”  Quick fiction is so much more, well … fun. I didn’t have to fight that internal dialogue when I read Walter Isaacson’s Steve Jobs. I’ve been an Apple consumer for years: My folks bought an Apple II-E in the early ’80s and it stuck with us through thick and thin for the next 15 years. I’m writing this column on a MacBook. Apple fandom, however, is no key to appreciating Isaacson’s masterful treatment of Steve Jobs. Jobs, as you almost certainly know, was a brilliant, complicated, interesting, and often horrifying figure. His polymath and autodidactic approach to life guarantees that just about anyone can take a nugget of something from his biography, and personnel managers are no different. read more…

Categories: Books / Management / Matt Gilley

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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“I meant, are you in here for drugs?”

December 16, 2013 - by: David Kim 0 COMMENTS
David Kim

Drugs are no laughing matter, except of course when it comes to the referenced exchange between Charlie Sheen’s character and Jeannie Bueller in Ferris Bueller’s Day Off. Yet, when it comes to our celebrity news cycle, drug use is as prevalent as steroid use has become in baseball.

The latest scandal involves Nigella Lawson, most well known as a food writer and television personality for a variety of cooking shows, including the currently running The Taste on ABC. Now, I’m neither a foodie nor a reality TV junkie. In fact, the only reality TV shows I watch are Top Chef, where half the time I have no idea what ingredients they are referring to, and Shark Tank, because I find it entertaining when Mr. Wonderful blasts an entrepreneur’s terrible business idea. And while I had never heard of The Taste, and barely knew of Nigella Lawson, the recent headlines involving her life have come front and center and have taken on a soap opera-ish feel.

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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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Moneyball redux: What can it buy you?

November 23, 2013 - by: Matt Gilley 0 COMMENTS
Matt Gilley

I’m not shy about going back to the well. Last month I posted some lessons HR professionals could take from Billy Beane’s roster management of the Oakland A’s, as told in the bestseller, Moneyball.

For my money, Beane’s innovations as GM of the cash-poor A’s put him in the upper ranks of baseball executives among the likes of Branch Rickey, who first made use of an organized farm system to grow talent for my beloved St. Louis Cardinals (before he went on to sign Jackie Robinson with the Brooklyn Dodgers). Now that Brad Pitt has played him in the theaters, people from all walks of industry are clamoring for a bit of Beane’s mind, and personnel managers have been at the front of the line.

If you have to ask why, look around you right now. You are probably reading this on a digital display set into a laptop, tablet, or smartphone. That device is tethered to the ether (likely through your employer) where a server down the hall, in Seattle, in Bangalore, or who-knows-where is making a little record that you, my poor reader, lingered over my humble musings.

Five minutes ago, it also noted the nasty joke you forwarded to a buddy in another office, and it saw that your buddy (not as good a friend as you thought) felt that your joke warranted HR’s attention and sent it to his office HR rep. If asked, the server holds a map of the 16 times in the last three months you’ve crossed this line, and is just waiting for someone to call up this information that will twist the knife you’ve stuck in your own back. (If you’re wondering what it knows about all that stuff you’ve been copying to the used one terabyte hard drive you bought online last week, well … let’s just say you don’t want to do that anymore.)

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Oh [no], Canada!

November 17, 2013 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

Unless you’ve been under a rock for the past couple of weeks, you’ve probably heard about Toronto’s crack-shutterstock_128700830smoking mayor, Rob Ford. No, I don’t mean that term in the figurative sense or as a commentary on some outlandish political policy he has chosen to pursue. I mean it quite literally, as Rob Ford admitted in a November 5 press conference to smoking crack cocaine while in one of his “drunken stupors.” (I’m not kidding. Those are his words.) And while we Americans all know Canadian beer is like moonshine, that’s hardly an excuse for an elected official choosing to dance with the devil—even one as offensive and scandal-ridden as Ford, who some have labeled as “Mayor McCrack.”

Sadly, Toronto is not the first major city to go through such a scandal. Most of us remember the time when Marion Barry, then mayor of our nation’s own Capital, was caught on tape himself smoking crack. Barry, of course, was arrested and served six months in prison, only to be re-elected mayor four years later. So maybe there’s still hope for Ford. And if you’ve read much of what he’s been quoted as saying, you might think a little time out of the spotlight would do him some good.

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Work hard, play hard work harder

November 11, 2013 - by: David Kim 0 COMMENTS
David Kim

As discussed in our previous blog post, the Richie Incognito-Jonathan Martin scandal has dominated the sports and national headlines. Lost somewhat in the midst of an Incognito-Martin-centric sports news cycle were the recent health scares of Denver Broncos coach John Fox and Houston Texans coach Gary Kubiak during week 9 of the NFL season. Fox, whose Broncos were on a bye week, experienced symptoms, including feeling light-headed, while golfing, and ended up having an aortic heart valve replacement procedure just days later. Kubiak, during the halftime of the Texans’ Sunday Night Football matchup with the Indianapolis Colts, collapsed on the field and was taken to a nearby hospital due to what doctors have described as a mini-stroke.

On the heels of these events, which occurred within 48 hours of each other, the health and work ethics of NFL coaches have come under scrutiny. Journalists, NFL analysts, and former players and coaches have discussed the need for the NFL to implement programs or procedures to create a healthier work environment for coaches. One former NFL player, Cris Collinsworth, has suggested the NFL implement a “7 to 7” rule, stating that teams should be forced to open its office doors at 7:00 a.m. and close them before 7:00 p.m. Others, including former head coach and NFL media analyst Brian Billick, state that the hours and pressure come with a job where you are judged on your performance week in and week out and that “we [coaches] do this to ourselves.”

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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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