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.”

read more…

“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.

read more…

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.

In her motion to dismiss, Silberkleit raises an interesting defense. She argues, “White males are not a member of a protected class under this section of the HRL.” Silberkleit is apparently contending that plaintiffs who are in the gender or racial majority cannot avail themselves of anti-discrimination statutes. Does she have a point?

Not likely. New York’s human rights law is modeled after Title VII.  It expressly prohibits adverse employment action on the basis of a person’s age, race, disability, and sex, among other categories. Nowhere, however, does it specify that “white males” are somehow excluded from coverage. Indeed, a 2003 New York district court case addressed this very issue and held that a white male plaintiff in a sex discrimination lawsuit did not carry a heightened evidentiary burden and was “not required to make any special showing of background circumstances in order to state a prima facie case of gender discrimination because he is male.” Looks like the white guys may get their day in court.

As of this post, the parties have briefed Silberkleit’s motion to dismiss and await the court’s ruling. Considering the colorful allegations in this case, if you want to know what happens next, you may have to read it in the funny papers.

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.)

read more…

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.

Aside from making the jobs of late-night talk show hosts extremely easy over the past couple weeks, Ford’s admission has supplied this blogger with the necessary segue to highlight an important employment law topic: drugs in the workplace.

A recent study by the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration shows drug abuse is still a major issue for employers. The study found that most illicit drug users in the United States are employed. In fact, the study revealed “of the 21.5 million current illicit drug users aged 18 or older in 2012, 14.6 million (67.9 percent) were employed either full- or part-time.” That’s a lot of current drug users inhabiting your workplace. Especially when drug use can result in lower productivity and lower quality work, increased absenteeism, and greater risk of on-the-job injuries. All of these things can negatively affect your company’s bottom line.

What employers can do

Employers aren’t powerless to combat drugs in the workplace. Drug- free workplace programs can be powerful tools in spreading prevention messages and intervening early with those who have already begun to use drugs. For many individuals, especially those who may deny that their use of drugs is problematic, workplace-based programs can be a critical step along the road to treatment and recovery. Every workforce is different and drug-free workplace programs should be tailored to match a company’s individual needs. Effective drug-free workplace programs generally include five elements:

  1. A written policy that provides a clear description of prohibited behaviors, as well as an explanation of the consequences for violating the policy.
  2. Supervisor training to ensure managers understand the policy and know how to recognize potential substance abuse issues as well as how to refer employees to professional help.
  3. Employee education programs that provide information on company policy, how to comply with the policy, the consequences of violations, and general information on the dangers of substance abuse.
  4. Employee assistance programs that help prevent, identify, and resolve issues relating to substance abuse, including counseling and referral to professional help, which can be an alternative to dismissal.
  5. Drug testing that deters and detects drug use and provides concrete evidence for intervention.

Due to the variance of state and local laws concerning employee drug testing, it’s critical that any decision to implement employee drug testing be reviewed to ensure that it is compliant with the laws of your jurisdiction. Many states encourage drug-free workplaces by offering protection from civil liability or a reduction in workers’ compensation premiums for employers that adopt compliant drug-testing policies and procedures. Other states prohibit employee drug testing or limit the manner and circumstances for which drug testing may be performed.

Check your state law

But wait. There’s more! To date, at least 20 states plus the District of Columbia allow their citizens to use marijuana for medical purposes. Two of those states–Colorado, and Washington–recently passed measures legalizing recreational use. While the provisions of state medical marijuana laws vary, generally state courts called upon to determine the extent of an employer’s obligation to accommodate employees using marijuana under the medical use laws have found no such obligation either express or implied. Some state laws, however, provide more protection for employees. For example, the laws in Rhode Island and Maine prohibit employers from penalizing an individual merely because of the person’s status as a medical marijuana user.

Arizona’s law goes even further, prohibiting discrimination against a registered qualifying patient based on that person’s positive test for marijuana unless the patient was impaired by marijuana on the employer’s premises or during the hours of employment. While the law doesn’t require an employer to permit an employee to ingest marijuana at work or to work while under the influence of marijuana, it also states that a registered qualifying patient is not considered to be under the influence of marijuana solely because that person tests positive for marijuana metabolites in an amount that is insufficient to cause impairment.

Because of the various approaches applied by the several states and the ever-developing nature of this area of the law, it’s important that you seek help from an experienced professional when developing and implementing a drug-testing policy.

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.”

The reality is that Fox and Kubiak are exempt employees and therefore are paid a salary for all hours worked and aren’t entitled to overtime. Absent specific industry or other regulations, or any applicable collective bargaining agreement, there is no limit to how many hours an exempt employee may work to perform his or her job. And since exempt employees aren’t entitled to overtime, employers often don’t care how many hours their exempt employees do in fact work.

Due to its public image, the NFL may evaluate whether to change its policies with respect to the working hours of its teams’ coaches or other employees. It may not. For most other employers, the belief is exempt employees have the ability to weigh the pros and cons of any position and choose to work in exempt positions that may require longer work hours, but provide a higher compensation in return. That doesn’t mean employers should turn an entirely blind eye to the work hours and habits of its exempt employees.

For obvious reasons, employers want to create a productive and efficient workplace, as well as retain the best talent, which means ensuring a certain quality of life for its employees and monitoring their performance. In addition, heart attacks, strokes, exhaustion, chronic fatigue, or other issues resulting from long working hours could entitle employees to workers’ compensation under applicable state law.

Although employers scrutinize–and for good reason–the hours worked by its nonexempt employees to ensure compliance with applicable wage and hour laws, being aware of the work hours and habits of all its employees, including exempt employees, is simply good practice. By doing so and taking the initiative, employers can be aware of potential issues before they manifest themselves, such as whether an exempt employee’s hours and production have fluctuated due to an apparent “disability” or other medical issue, thereby creating an obligation for the employer to engage in an interactive process regarding reasonable accommodations. Defense may win championships, but as they say, sometimes the best defense is a good offense.

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.”

Martin had reportedly been the target of Incognito’s hazing for some time. It’s unclear whether the Dolphins knew about the conduct all along or first learned of it after Martin stormed out of the team facility last week. From the HR/employment law perspective, it doesn’t really matter. At this point, if you’re the Dolphins, you’re trying to limit your liability.

Title VII of the Civil Rights Act of 1964 prohibits a hostile work environment on the basis of an employee’s gender, race, religion, or other protected classification. The test for a hostile environment is whether the complained-of conduct is severe and pervasive enough that it effectively alters the employee’s working conditions. Take another look at that voice mail and read the articles about the conduct Martin reportedly endured at the hands of Incognito and possibly others leading to his decision to walk out on his team.

With Incognito calling Martin a “half n—– piece of s—,”  the reports of systematic harassment, and Martin’s absence from the team, the Dolphins ran out of options with Incognito. An employer’s defense to coworker-on-coworker harassment is that upon learning of the conduct, it promptly investigated and took appropriate remedial measures. Whether or not the Dolphins knew about the Incognito-Martin dynamic earlier than last week, they knew all they needed to when they heard that voice mail.

There are other interesting legal and HR aspects to this story: bullying on the job and workplace violence; Martin’s potential causes of action against Incognito, the Dolphins, or the NFL;  jock culture. This blog may address those in future posts as the saga of Martin and Incognito unfolds.

The narrative of the pro football season has shifted. Roger Goodell was just getting his arms around head injuries. Now, he has to deal with hurt feelings. Welcome to the NFL!

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.

Disclosure wouldn’t give us a very interesting column on sexual harassment since the harassment details are fairly pedestrian a few decades later. Disclosure, however, was interesting for another reason: The company, the female executive, and the accused didn’t play out their dispute in a courtroom drama, but during employment arbitration in a stale, anodyne law firm conference room. “Alternative dispute resolution” was a new legal trend at the time (hey, lawyers can be edgy, too!) and what better setting to explore a cutting-edge practice than Seattle in the early ’90s?

Two decades later (boy, was that hard to write), employment mediation has grown up (translated, the Supreme Court has said a few things about it) so it’s worth some time to see how mediation’s promise stacked up against its record in reality:

  • First, arbitration won people over (not the least of which were five Supreme Court justices).  Over the last several Supreme Court terms (particularly since 2010 with Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp.), the Supreme Court has taken several opportunities to approve of mediation for dispute resolution as opposed to requiring parties to litigate in a court of law.  This year, in American Express v. Italian Colors Restaurant, the Court approved of waivers for class and collective actions.
  • Second, arbitration may have overstated its cost savings but has proved to have undeniable advantages. Anecdotally, I hear from arbitrators that they don’t believe they save the parties in litigation costs or maybe even time, but the advantage of a (supposedly) neutral, professional, and dispassionate fact-finder cannot be overemphasized.

Therefore, the cutting-edge process we saw in Disclosure is all grown up now. I think we’re all the better for it, too.

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