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Clash of the titan policies
From: California Employment Law Letter | 01/17/2022
by Mark I. Schickman, Schickman Law
It snowed in Washington, D.C., over January 6 and 7, and all federal buildings were shut down except for the U.S. Supreme Court, which makes its own hours and rules. The Court had set a special Friday calendar (an event even rarer than a live Friday night talk show) to consider two employment-related challenges to President Joe Biden’s COVID-19 regulations and decide whether they should be blocked while the legal cases proceed.
In the first case, a number of states (including Ohio and Louisiana) and several business groups took issue with the mandate that all employers with 100 or more employees must require either (1) vaccinations or (2) weekly testing and mask wearing. The states argued the regulatory bodies exceeded their power by imposing the requirements, while the business groups claimed they were prohibitively burdensome.
The second case opposed a Biden rule requiring the vaccination of all healthcare workers in facilities participating in the Medicare or Medicaid programs, a measure affecting 10 million workers. The opponents argued that, especially in rural areas, the rule would lead to more employment vacancies in a job sector already facing massive personnel shortages.
Before the merits were ever reached, the COVID-19 omicron variant loomed over the Court. Heretofore only Justice Sonia Sotomayor had worn a mask on the bench, and during the vaccine mandate hearing, she took the bench virtually from chambers down the hall. She suffers from diabetes and is therefore at greater risk of catching the virus. All of the other justices were masked except for Neal Gorsuch.
In a note of irony, the Ohio and Louisiana solicitors general had to appear remotely because neither could meet the Court’s strict virus testing protocol.
'Squeezing an elephant through a mousehole'
As readers of this publication know, it’s dangerous to predict the outcome of a case based on the questions asked during oral argument. If the COVID-19 vaccine questioning is to be given weight, however, it appears likely the healthcare worker mandate will be upheld while the general employee requirements may go down.
The three liberal justices (Sotomayor, Elena Kagan, and Stephen Breyer) are likely to uphold both rules. Justice Sotomayor was vocal in proposing the government has wide latitude to promote public health and safety. As usual, Justice Breyer reacted from a practical perspective:
There were three-quarters of a million new cases yesterday. . . . That's 10 times as many as when [the Occupational Safety and Health Administration or] OSHA put this rule in. The hospitals are . . . full, almost to the point of the maximum . . . with people who are not vaccinated, okay? How can it be in the public interest, which is a requirement, how can it be a balance of harms in this case [to stay the Biden COVID-19 regulations]?"
But the liberal wing is unlikely to get the swing vote of Chief Justice John Roberts, who suggested nothing in the congressional delegation of authority to the agencies contemplated mandatory vaccinations. “Yes, 50 years ago Congress passed a general provision, but I think it's certainly hard to argue . . . that it gives free reign to the agencies to enact such broad regulation that . . . was certainly unfamiliar to Congress in 1970. . . . [T]his is something that the federal government has never done before, right, mandated vaccine coverage?”
Justice Samuel Alito picked up on Chief Justice Roberts’ comment, arguing “this is fundamentally different than . . . anything that OSHA has ever done before . . . in at least two respects.” Because of the differences, he dismissed the federal government’s reliance on other cases supporting the agency's rulemaking as “trying to squeeze an elephant into a mousehole”:
First, most OSHA regulations affect employees when they are on the job but not when they’re not on the job. But, the shot mandate affects employees all the time. “If you're vaccinated while you're on the job, you're vaccinated when you're not on the job," Justice Alito noted.
Second, because some employees have an adverse physical reaction to a vaccine, Justice Alito pointed out, “There is a risk, right? Has . . . OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk, on the employee?” He may well argue the two differences allow the Court to strike down the vaccination mandates without disturbing the thousands of other administrative rules made all over Washington every month.
Justice Brett Kavanaugh grilled the lawyers defending President Biden’s rules, drawing comparisons to other cases in which the Court found an agency exceeded its powers by deciding a “major question.” Meanwhile, he lobbed softball questions to the challengers. Here is an example:
So, as I understand it, you're invoking the major questions doctrine and your statutory argument to say that based on the Constitution's separation of powers, Congress must act or the States must act and OSHA lacks authority under the current statutes to do this. . . . I want to give you an opportunity to explain the value of insisting on that congressional action for something like this at the federal level in an emergency situation and explain why we shouldn't defer more to the executive.
Expect Justice Kavanaugh to carry the same theme forward in striking down the regulations.
The Court isn’t deciding the vaccine cases on their final merits. Instead, the issue is whether to stay (or postpone) enforcement while the litigation is going on. Nonetheless, the questioning didn’t signal any continuing vitality for the employer mandate, either short- or long-term.
Healthcare worker shot rule likely to survive
A different fate is likely for the rule requiring vaccinations for healthcare workers at facilities participating in Medicare or Medicaid programs. Differentiating it from the broader mandate affecting all employers with at least 100 employees, Justice Sotomayor noted the healthcare worker mandate was a valid exercise of the federal government’s spending power, which allows it to impose conditions on the funds it gives out. If a facility wants Medicare money, it has to agree to Medicare’s rules.
Justice Roberts also seemed more sympathetic to the government’s position on the healthcare worker requirement because facilities receiving Medicare money signed contracts agreeing to abide by the agency’s rules.
Justice Kagan countered the argument that employees would quit over the rule, suggesting instead that other workers would return if they knew everybody was vaccinated. She added a vaccine mandate for healthcare workers also would serve sick patients who are afraid to come to a hospital for fear of contracting COVID-19.
But the maskless Justice Gorsuch looks likely to be a vote against the healthcare worker requirement, too. He asked: “Could [the government] also implement regulations about exercise regimes, sleep habits, medicines and supplements that must be ingested by hospital employees in the name of health and safety?”
The theoretical and the real
In the abstract, the cases raise broad and lofty issues. Congress is supposed to make the rules, and the executive branch is supposed to enforce them. So, unless lawmakers decided masks were mandatory for everyone working in a company with 100 or more people (which covers about two-thirds of the U.S. workforce), how can the executive branch declare and enforce the policy? On the other hand, it is the government’s obligation to promote public safety and welfare, so how can the Court block a mandate designed to do exactly that?
For better or worse, American law refuses to operate in the abstract. There always must be a “case or controversy” to which the law will be applied. For that reason, a well-known adage among lawyers is that “bad facts make bad law.”
As for the vaccine mandates, the facts can be found in not only the briefs but also the courtroom. Even though the Supreme Court building was cleared of spectators and every necessary participant must have gotten a negative COVID-19 test the day before the argument, seven justices were masked, and an eighth wouldn’t leave her chambers.
From the justices’ ivory-tower perch where precise logic and unemotional fairness are at the heart of the system, their questions were fraught with emotion and political heat, against which the Court hasn’t been immunized.
Bottom line
The actual question presented to the Court was by definition temporary: Should the two rules be stayed while the litigation challenges work their way through the courts? But how the Court deals with the two questions could have a more lasting, positive effect as an object lesson in how a reasoned, practical consensus might be reached. Somebody please develop a shot to accomplish that.
Mark I. Schickman is an editor of California Employment Law Letter, and you can reach him at Schickman Law in Berkeley, California, Mark@SchickmanLaw.com.
From: California Employment Law Letter | 12/06/2021
by Mark I. Schickman, Schickman Law
The Oakland . . . I mean Los Angeles . . . I mean Oakland . . . I mean Las Vegas Raiders have a tradition of high-profile litigation second to no one in sports. Al Davis’ “just win, baby” philosophy spilled off the gridiron and into courtroom battles as well. So, it comes as little surprise that Jon Gruden is suing the NFL for publicly trashing his reputation and conspiring to wrongfully fire him as the Raiders’ head coach.
Unsavory accusations
What is Gruden accused of as the lever to force his termination? Lots of inflammatory e-mails he wrote between 2011 and 2018, while he was an ESPN announcer and not affiliated with the NFL in any way. The e-mails were found during the league’s sexual harassment investigation into the team formerly known as the Washington Redskins.
Because Colin Kaepernick kneeled during the national anthem, Gruden opined in an e-mail to Washington’s former general manager, Bruce Allen, that “they should cut this f__k.” Gruden called NFL Player Association Executive Director DeMaurice Smith “rubber lips,” a term widely considered racist but that Gruden says was intended to imply only that the football union boss was a liar.
Gruden called NFL Commissioner Roger Goodell a “clueless anti football pussy.” He shared with Allen photos of topless Washington cheerleaders, among many other sexist comments and pictures. He made comments derogatory of female referees and against the change in the Redskins football name. He mocked the NFL’s concussion protocols and accused Goodell of pressuring teams to “hire queers.” The eight-year cache of Gruden e-mails undoubtedly yields many more cringeworthy quotes.
Misdirection play
Gruden notes he wasn’t affiliated with the NFL when he wrote the e-mails but rather a football commentator. He also challenges the motivation of leaking the e-mails to the press, accusing the league of forcing his termination to divert attention from the sexual harassment coverup within the Washington football team.
While Gruden lost his 10-year, $100 million contract with the Raiders, Washington was fined $10 million for the harassment as described in the NFL’s July 1, 2021, press release:
For many years the workplace environment at the Washington Football Team, both generally and particularly for women, was highly unprofessional. Bullying and intimidation frequently took place, and many described the culture as one of fear, and numerous female employees reported having experienced sexual harassment and a general lack of respect in the workplace. Ownership and senior management paid little or no attention to these issues. In some instances, senior executives engaged in inappropriate conduct themselves, including use of demeaning language and public embarrassment. This set the tone for the organization and led to key executives believing that disrespectful behavior and more serious misconduct was acceptable in the workplace. The problems were compounded by inadequate HR staff and practices and the absence of an effectively and consistently administered process for reporting or addressing employee complaints, as well as a widely reported fear of retaliation. When reports were made, they were generally not investigated and led to no meaningful discipline or other response.
While the NFL leaked the Gruden e-mails, which were found during but have little direct bearing on the investigation, the league confirmed it would say nothing more about its findings of harassment in the Washington football team organization and wouldn’t issue or publish a report: “When you make a promise to protect the anonymity, to make sure that we get the right information, you need to stay with it,” Goodell said. “And so we’re very conscious of making sure that we’re protecting those who came forward.” Everyone except Gruden, of course.
Gruden complains the NFL shielded the Washington team owners and executives from harassment charges, using his outsider e-mails to divert attention from the investigation and force him out. He claims that is unsportsmanlike conduct.
Gruden is suing the NFL and Goodell (but not the Raiders!) for the loss of his salary, endorsements, and reputation. He claims the league induced the Raiders to fire him, interfered with his contracts and business, and committed other wrongs against him. He also claims Goodell and the league were negligent in allowing their employees to release his e-mails to the press.
Litigation is a long process, and we are still early in the first quarter with no points scored yet. This Western Division battle has a long way to go.
Another show, another firing
Gruden might want to hold off counting on the eight-figure damages he seeks, if Kevin Spacey provides any example. Spacey made a brilliant career out of morally ambiguous characters, from Keyser Soze in The Usual Suspects, to a corrupt ex-cop in L.A. Confidential, to a flawed father in American Beauty, and finally to the deadly effective politician Francis Underwood in House of Cards. That moral complexity followed him home.
In late 2017, 35-year-old actor Anthony Rapp reported Spacey molested him at a party 21 years before when he was 14, a dangerous story at the height of the #MeToo movement. Soon thereafter, a 19-year-old man accused Spacey of groping him in a bar off the Massachusetts coast. The allegation led to criminal charges, which were dropped after the man refused to testify amid claims he had deleted telephone messages that could have exonerated Spacey.
Meanwhile, Spacey was the person who saved Netflix, his series House of Cards elevating the streaming service from a home for TV reruns into a major platform of original television programming. The show dominated the Emmys since 2013, Spacey winning lead actor from 2014 through 2016, among its 34 Primetime Emmy wins. But having reached the top, Spacey’s Francis Underwood character was primed for the fall.
In October 2017, House of Cards began principal filming on its announced final season on Netflix. Spacey shot two episodes before Rupp’s accusations were publicized, and the other allegations followed.
On November 2, 2017, CNN published a detailed report citing eight crew members’ allegations that Spacey often harassed male employees on the set. One crew member reported seeing the actor introducing himself to multiple people: “Say hello, greet them, shake their hand and pull their hand down to his crotch or touch their crotch.”
The House of Cards producer, MRC, claims the CNN story provided its “first notice whatsoever” of any such conduct. It suspended Spacey pending an investigation. It ultimately found Spacey, both as an actor and as an executive producer, breached workplace standard policies, and it fired him.
Adding injury to insult
MRC wasn’t done. It filed a claim in arbitration against Spacey alleging it lost more than $30 million because it had to rewrite the entire season without him and reshoot the two episodes in which he starred. According to the company, it could deliver and was paid for only eight episodes of the scheduled 13. Spacey filed a cross-claim for millions of dollars in salary he says he lost because MRC wrongfully terminated him.
A nine-day arbitration followed more than 20 depositions. The arbitrator sided with MRC and on July 10, 2020, issued a 46-page report. Three months later, after posthearing motions, the arbitrator awarded the company more than $1 million in attorneys’ fees in addition to almost $30 million in damages.
Spacey filed and lost internal arbitration motions, and on November 22, MRC filed a petition before the Los Angeles Superior Court to enforce the $31 million award. If the Internet consensus is to be believed, Spacey’s net worth is about $75 million, and he may lose nearly half of that to this judgment.
House of cards
I’m not suggesting the details of the two public fights are the same. One massive difference is that the MRC/Spacey contest squarely addresses alleged workplace misconduct, very different from Gruden’s interloping e-mails sniping at NFL policies and personalities from his ESPN booth on the sidelines. And without being dismissive of either category of harassment, the accusations against Spacey are about sexual touching, while Gruden’s are about offensive speech.
More important, neither legal action scratches the surface of the real issues, or hypocrisy, behind the stories. Will scapegoating Gruden do anything to remedy the prevalent sexism and homophobia in the NFL? No. Much more would have been done in that direction had the results of the league’s investigation into the eight Washington Redskins employees’ complaints been made public.
The NFL has had only one black president in its history and never a black majority owner. The arrival of openly gay players such as Michael Sam and Jonathan Martin in 2013 and 2014 was met with a league incapable of coping with them, evidence of a much bigger issue than the Gruden e-mails. Both the league and the entertainment industry have been steeped in prejudice for too long to make either of the individual personality exiles meaningful.
But both examples show some offenses carry no statute of limitations in the public mind, while other sins are forgiven. Within two years, legendary basketball announcer Marv Albert rebounded from his 1997 assault and battery conviction for his habit of literally backbiting prostitutes, and he was restored to his positions and inducted into the sports broadcasting hall of fame. Mel Gibson, after espousing a series of homophobic, antisemitic, misogynistic, and racist diatribes, is back from exile to direct the upcoming Lethal Weapon 5.
The public’s mood is inexplicable. At the end of the day, the episodes show the fickle, fleeting focus of fame, favor, and fortune. It all seems as stable as a house of cards.
Mark I. Schickman, an editor of the California Employment Law Letter, can be reached at Mark@SchickmanLaw.com.
From: California Employment Law Letter | 07/12/2021
by Mark I. Schickman, Schickman Law
The June jobs report showed a healthy gain of 850,000 new jobs, and employers are scrambling to fill them. We still have 6.8 million fewer jobs than before the COVID-19 pandemic, so job growth should stay on a rising vector while we fill the gap. Employers are finally in a position to reopen their doors and offer jobs to the employees they had to let go during the crisis.
Unfortunately, employers are finding the expected pool of returning employees often isn’t there. “Today there are more job openings than before the pandemic and fewer people in the labor force,” said Becky Frankiewicz, president of staffing company ManpowerGroup North America. “The single defining challenge for employers is enticing American workers back to the workforce.” She continued:
Child care challenges, health concerns and competition mean demand still outstrips supply, which is dampening the ‘big return’ of the American workforce. It’s a worker’s market, and employees are acting like consumers in how they are consuming work—seeking flexibility, competitive pay and fast decisions.
While we have a record number of available jobs, we have historical highs in workers quitting and retiring. Mathieu Stevenson, CEO of Snagajob in Richmond, Virginia, says “the overwhelming majority [of laid-off employees] said they wanted to work, but structural issues were keeping them out of the labor force, like family obligations and things still being in the process of reopening.” But other employees report they have found their comfort zone working from home and would rather change jobs and industries than return to an office schedule. Wages jumped for the third month in a row, another sign that employers are recruiting applicants with higher pay and workers are gaining bargaining power.
So, while companies such as Morgan Stanley and Bank of America are aiming for a September 1, 2021, full-time-office workforce, most other major companies seem to be opting for a hybrid model. Facebook has announced a wide range of jobs that will work mostly or fully off-site, and almost every employee will be given a number of days of scheduled off-site work.
Other major companies are opting for a three-day-a-week office/two-day-a-week home schedule, designed to avoid office crowding and capture both the advantages of collaboration and of focus and separation, harmonizing the values of connection and collaboration with flexibility and accommodation.
What do employees want?
Deloitte US recently surveyed clients’ approaches to returning to the workplace. Culture was the top concern, with 32 percent of respondents stating they were worried about “maintaining company culture” in a postpandemic world. As a takeaway, organizations should integrate well-being into the overall design of work so workers can perform at their best.
Explore ways of redesigning the physical and digital environment, focusing on collaboration and the role of the physical workplace as a destination for innovation, networking, and culture building. For example, one employer changed the standard shift to match the bus schedule so employees could get to work more easily. Others adjusted hours to make it easier for parents with childcare demands.
You need to comply with ever-changing COVID-19 legal requirements as well. Under California’s current guidelines, fully vaccinated employees don’t need to wear a face covering except in certain situations and settings. You must document the vaccination status of fully vaccinated employees if they don’t wear face coverings indoors. You also must provide face masks to unvaccinated persons and make them available to vaccinated persons upon request.
Employees generally aren’t required to wear face coverings when outdoors or eating or alone, regardless of vaccination status, and fully vaccinated employees are explicitly allowed to wear a face covering without fear of retaliation.
You can screen for and respond to employees with COVID-19 symptoms, take temperatures with noncontact thermometers, and require masks during screening. You also may ask employees to evaluate their own symptoms before reporting to work.
Finally, you can and should create a generous, supportive, and nurturing work environment. That’s perhaps the true key to bringing back your most valued employees and filling the jobs you need to have performed.
Mark Schickman, an editor of California Employment Law Letter, can be reached at Mark@SchickmanLaw.com.
By Mark I. Schickman, Schickman Law Jul 2, 2021 HR Management & Compliance
Updated: Jul 2, 2021
Workplace violence has been a problem in California and across the nation for decades, and it appears to be getting worse. Some governmental estimates have identified up to 36 mass killings in California workplaces in the last decade, including five since the start of 2021. According to a Society for Human Resource Management (SHRM) study, more than two million people a year report being victimized by workplace violence, and the unreported number is probably six million more.
Source: Andrey Burmakin / shutterstock
When you read the reports on Samuel Cassidy’s behavior, you might ask yourself why nobody spotted and stopped him before he recently killed eight coworkers at San Jose’s Valley Transit Authority (VTA) maintenance yard:
Cassidy’s ex-wife reported that more than 10 years ago he displayed out-of-control anger and spoke about harming his coworkers;
In 2016, U.S. Customs and Border Protection officials detained him on his way back from a trip to the Philippines because of writings indicating he hated his coworkers and had an interest in violent terrorism; and
Coworkers described him as a disgruntled employee, and acquaintances said he was uncomfortable to be around.
Workplace violence experts note potentially violent employees often display anger, weak impulse control, and hatred or resentment toward coworkers. But, far and away, most people who display the signs will never act on them, and it’s likewise true that some perpetrators show none of the signs at all.
Nor is it accurate, or legal, to weed out all mental health issues from your workplace as a means of preventing violent behavior. As far as the problem goes, acting on the basis of stereotypical signals alone is a dangerous employment strategy.
As with the syndrome of workplace burnout, when given the same stimuli, some people are more prone to violent behavior than others. In both instances, the contributing factors likely include a sense of isolation, separation, or detachment from coworkers, frustration with office circumstances, and a feeling of helplessness, vulnerability, and lack of control. An important goal is therefore preventing the factors from coalescing.
That will be a more difficult task than usual in the coming months. As the COVID-19 pandemic winds down, employees may feel uncertainty about whether they have stable jobs, when offices will reopen at full strength, and how people will closely relate to one another after 15 months of varying degrees of separation. Anxieties will increase as employees try to reenter their central workplace after growing used to operating from home.
Employee families may have lost their housing, child care, or an income. Some still may be very concerned about getting sick. Others may feel general anxiety from the confluence of factors. If those are left unaddressed, common stressors ranging from traffic to office space to deadlines and criticism could be the trigger for an employee to lash out at a company or coworkers.
Recognizing the risk of violence exists a little bit in all of us, and more in some than others, we must do what we can to create and maintain an environment minimizing the risks:
Without a doubt, you should institute as strong a ban on guns at all workplaces and work sites (including parking lots) as your jurisdiction will permit.
Strong and effective workplace zero-tolerance policies can go a long way toward preventing problems before they start, but they aren’t enough to stop some violent employees.
Maintaining vigilant observance of employee behavior is also important, but again nowhere near 100% effective.
Another key is providing resources to help employees work out and cope with difficulties.
As we move through the reopening phases, try to give your returning employees as much flexibility and control as you reasonably can over the details of their reentry. Sharing timely data can provide them with a feeling of control even if your requirements are rigid. After all, an atmosphere of collaboration and control is often as important as the reality. In areas where it really makes no difference to you as an employer, let the employee call the shots.
It takes real desperation to commit the unspeakable act of workplace shootings. Unfortunately, the disruptions of the past 15 months and the insecurity of the return to work create circumstances out of your control, which may increase the feelings of desperation. Do all you can to prevent those conditions from taking tragic control.
Mark I. Schickman is an editor of California Employment Law Letter. You can reach him at Schickman Law in Berkeley, mark@schickmanlaw.com.
From: California Employment Law Letter | 04/12/2021
by Mark I. Schickman, Schickman Law
A recurring topic returned for oral argument before the U.S. Supreme Court in March 2021: Under American antitrust laws, how much control does a league of owners have over providing compensation to athletes? The matter once again raised the popular question of who is an “amateur.” The National Collegiate Athletic Association (NCAA) and schools say limiting payments to students allows them to protect the sacred concept of amateurism. The students argue the NCAA is unlawfully suppressing pay to the athletes while member schools collect billions of dollars.
NCAA athletes call foul
Shawne Alston played football for the University of West Virginia and is one of a class of former student athletes who sued the NCAA and its “Power Five” conferences in 2019 under the antitrust laws. Based on current NCAA rules, a student athlete may not receive more than $5,980 in cash payments per year in addition to “education-related benefits.” The class is challenging the regulation of what a student athlete may receive in the latter set of benefits.
Covered costs. In terms of education-related benefits, the NCAA’s bylaws allow a school to provide "full grant-in-aid,” which encompasses “tuition and fees, room and board, books and other expenses related to attendance at the institution up to [a cap] . . . as calculated by each institution’s financial aid office.“ The governing legislation permits a wide range of other payments above the cash cap (both related and unrelated to education). Without losing their eligibility, student athletes may receive:
Awards valued at several hundred dollars for athletic performance ("athletic participation awards");
Disbursements (sometimes thousands of dollars) from the NCAA’s student assistance and academic enhancement funds for purposes including academic achievement or graduation awards, school supplies, tutoring, study-abroad expenses, posteligibility financial aid, health and safety expenses, clothing, travel, "personal or family expenses," loss-of-value insurance policies, car repair, personal legal services, parking tickets, and magazine subscriptions;
Cash stipends of several thousand dollars calculated to cover the expenses of attendance beyond the fixed costs of tuition, room and board, and books, but used wholly at the student athlete’s discretion;
Mandatory medical care (available for at least two years after the individual graduates) for an athletics-related injury;
Unlimited meals and snacks;
Reimbursements for expenses incurred by student athletes’ significant others and children to attend certain sports competitions; and
A $30 per diem for "unitemized incidental expenses during travel and practice" for championship events.
Expenses not covered. Under the “Amateurism Rule," student athletes lose eligibility for intercollegiate competition if they "[u]se [their] athletics skill (directly or indirectly) for pay in any form in [their] sport” beyond what the above rules allow. Among the limits the NCAA places on the education-related benefits are:
Computers, science equipment, musical instruments. and other tangible items that might be described as “academic-related”; and
Six-figure academic internships to student athletes (a university also may not agree to cover $100,000 for three years of law school tuition).
The NCAA’s mission includes “retaining a clear line of demarcation between intercollegiate athletics and professional sports."
But, NCAA programs generated $4.3 billion in revenue for the Power Five conferences in the 2015-16 academic year, which was a $300 million increase over the previous year. And in 2016, the organization negotiated an eight-year extension (until 2032) of its multimedia contract for the broadcasting rights to March Madness, the annual men’s basketball tournament, under which the covered schools will take home $1.1 billion per year (an annual increase of more than $325 million).
Trial court issues split decision
The athletes asked a federal district court to issue an injunction declaring the NCAA rules unlawful and blocking their enforcement. The court considered the association’s argument that the public has an interest in and affinity for amateur sports, which would be lost if athletes were paid.
The court found some NCAA rules (e.g., the limits on the grants-in-aid, compensation unrelated to education, and cash awards for graduating or other academic achievements) promoted the consumers’ interest in amateurism by precluding "unlimited payments unrelated to education, akin to salaries seen in professional sports leagues." But the court concluded the limits on "non-cash education-related benefits" (e.g., posteligibility graduate scholarships or tutoring) don’t have the same effect because the benefits "could not be confused with a professional athlete’s salary" and would only "emphasize that the recipients are students."
Therefore, the court issued an injunction against the NCAA’s policy defining which compensation and benefits are "related to education," but it stayed the injunction pending resolution of a timely appeal to the U.S. 9th Circuit Court of Appeals (which covers California employers).
9th Circuit approves lower court’s ruling
On appeal, the NCAA advanced a single procompetitive justification: The challenged rules preserve "amateurism," which, in turn, "widen[s] consumer choice" by maintaining a distinction between college and professional sports.
The 9th Circuit agreed with the district court, however, that only some of the challenged rules serve the procompetitive purpose: limits on above-the-cap payments unrelated to education, the cap on athletic scholarships, and certain restrictions on academic or graduation cash awards and incentives (recognizing that removal of the restrictions could result in unlimited cash payments akin to professional salaries). But the remaining rules (restricting "non-cash education-related benefits") do nothing to foster or preserve demand because:
The value of such benefits, like a scholarship for post-eligibility graduate school tuition, is inherently limited to its actual value, and could not be confused with a professional athlete’s salary.
Moreover, the NCAA’s concerns that certain benefits will become vehicles for payments that are virtually indistinguishable from a professional’s salary were premised on an unreasonably expansive reading of the injunction. Rather, the 9th Circuit construed the injunction in "context" and "so as to avoid . . . absurd result[s]." The context here envisioned "non-cash education-related benefits" for "legitimate education-related costs," not luxury cars or expensive musical instruments for students who aren’t studying music. Thus, properly construed, the injunction doesn’t permit the type of unlimited cash payments feared by the association.
The 9th Circuit seemed offended by the argument that the district court impermissibly wrested control of college sports from the NCAA by empowering itself to determine which types of benefits qualify as "related to" education, instead of "leaving that task" to "the institutions experienced in and responsible for providing education." The appellate court added: “This allowance does not constitute judicial usurpation by a long shot.”
Supreme Court’s oral argument may spell trouble for NCAA
In the midst of the NCAA basketball finals, the Supreme Court heard oral argument on March 31, 2021. The justices were unusually active with questions crossing party lines.
Noting most student athletes never make it to the professional ranks, Justice Samuel Alito commented, “They are recruited, used up and cast aside.” Justice Elena Kagen said the NCAA’s argument “sounds high-minded,” but in reality competing colleges have formed the organization “with undisputed market power” to set salaries at far lower levels than in a free market. Justice Brett Kavanaugh, famously the coach of his daughter’s basketball team, called the association’s argument “entirely circular and somewhat disturbing”:
Schools are conspiring with competitors to pay no salaries to the workers who are making the schools billions of dollars, on the theory that consumers want the schools to pay the workers nothing.
Alston’s lawyers faced some tough questions as well. Justices Stephen Breyer and Sonia Sotomayor expressed concern over the Court becoming too involved in the day-to-day details of administering the NCAA’s rules. Justice Clarence Thomas (who rarely speaks during oral argument) wondered if the big teams and conferences would offer expensive perks to lure away the great players and was “perplexed” how the association “would be able to preserve [the] distinction between student athletes and professional athletes without constantly being involved in litigation?”
Justice Kavanaugh asked if college athletes would next seek the right to unionize. Chief Justice John Roberts likened the situation to the game of Jenga, in which “all of a sudden the whole thing comes crashing down.”
Bottom line
One cannot reliably predict Supreme Court outcomes from oral argument, but all indications show a broad coalition upholding District Court Judge Claudia Wilken's injunction against the NCAA. Only two liberal justices (Breyer and Sotomayor) appear to be clinging to the romantic notions of amateur collegiate athletics proposed by the holders of multibillion-dollar college sports contracts, leaving it to Justices Alito and Kavanaugh to channel Woody Guthrie in defense of the downtrodden worker. March madness, indeed.
Mark I. Schickman is an editor of the California Employment Law Letter and can be reached at Schickman Law in Berkeley, mark@schickmanlaw.com.
From: California Employment Law Letter | 07/20/2020
by Mark I. Schickman, Schickman Law
by Mark I. Schickman, Schickman Law
Every four years, I address in this column the need for the U.S. Supreme Court to stay above presidential politics. The Supreme Court can play its role in the balance of powers doctrine only if it remains apolitical. In today's polarized political environment, that's difficult to do. For better or worse, one saving grace is that Supreme Court justices get a lifetime appointment at the top of their profession, so they don't need any more political favors from anyone. As a result, the justices sometimes abandon the ideological position that got them appointed and become the kind of justices they want history to remember them as. For instance, the leader of the liberal Warren Court was a Republican governor appointed by President Dwight D. Eisenhower.
We may be seeing the same syndrome in Chief Justice John Roberts, exemplified by the Court's recent decisions interpreting elusive issues of statutory and constitutional rights. In one case, the Court determined that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation and transgender status. In that 6-3 decision, released on June 15, 2020, the Court ruled that Title VII's prohibition against sex discrimination protects gay, lesbian, and transgender employees. Justice Neil Gorsuch, a Trump appointee, wrote the opinion for the majority, joined by Roberts and liberal justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
The decision covered three separate appeals. Two of the cases presented a conflict between the federal circuits over whether Title VII prohibits sexual orientation discrimination, with the U.S. 2nd Circuit Court of Appeals finding that it does and the 11th Circuit saying it does not. The third appeal, out of the 6th Circuit, involved a transgender funeral director who was fired after she announced she would start living as a woman.
"Today," Gorsuch wrote, "we must decide whether an employer can fire someone simply for being homosexual or transgender." He asserted that the answer to that question "is clear": An employer that fires an employee "for being homosexual or transgender . . . fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision[—]exactly what Title VII forbids." The key is whether "changing the employee's sex would have yielded a different choice by the employer." Terminating a man who is attracted to a man when a woman who is attracted to a man wouldn't be terminated is a difference based on sex and is therefore illegal.
Because most states have not enacted laws banning discrimination based on LGBTQ+ status, the Court's decision has huge national implications. Moreover, although the decision is applicable only to cases filed under Title VII, its logic should apply to discrimination based on sex across the board. In that way, the Court's 6-3 decision does what Congress has been unable or unwilling to do for half a century. Justice Samuel Alito's dissent predicts that the decision "is virtually certain to have far-reaching consequences" and will "threaten freedom of religion, freedom of speech, and personal privacy and safety."
New alliances on the Court
Roberts and Gorsuch could have joined in the dissenting argument by Alito and Justice Clarence Thomas that Congress has had plenty of opportunities to expressly add sexual orientation to Title VII as a protected class and has chosen not to do so, and that the Court is legislating and creating new laws. They could have joined Justice Brett Kavanagh's dissenting opinion that the literal meaning of a word is not as important as its ordinary meaning and the ordinary meaning of "sex discrimination" doesn't include discrimination based on sexual orientation. They could have easily decided that few people in 1964 expected sex discrimination to include LGBTQ+ employment rights. But they did not.
Gorsuch also rejected the "elephant in a mousehole" argument—i.e., that the "elephant" issue of gay rights cannot be hidden behind the mousehole of sex discrimination. "This elephant has never hidden in a mousehole," he concluded. "It has been standing before us all along."
On the classic conservative versus liberal issue of gay and lesbian rights, Roberts and Gorsuch had plenty of opportunity to enforce a key conservative social practice, but they did not. Roberts is certainly taking a swing vote position, with Kavinaugh and Gorsuch joining that broader coalition from time to time. So it's important not to take for granted that a conservative appointee of a conservative president will be a reliable conservative vote. And as a set of religious exercise cases shows, that ideological crossover goes both ways.
Right wing and a prayer
Much more often than not, we can expect the Roberts Court to take the conservative approach, as it did on July 8 when it expanded on its decision in Burwell v. Hobby Lobby, ruling that corporations can refuse to extend contraception benefits to employees on the basis of religious beliefs—another signal that corporate religious status could grow as an exemption to Title VII protection. The case arose when Pennsylvania and New Jersey challenged an exemption created by the Trump administration that extends an employer's right not to provide contraception benefits. The Court was able to craft a broad majority protecting that right.
The 7-2 decision was written by Justice Thomas. Justices Ginsburg and Sotomayor filed a dissent, criticizing the majority because "in its zeal to secure religious rights to the nth degree, [the Court ensured that] between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services." But liberal justices Kagan and Breyer wrote a concurring opinion in which they join the conservatives to create the 7-2 majority.
On the same day, and by the same 7-2 vote, the Supreme Court expanded the "ministerial exception" to give religious schools free rein to terminate elementary schoolteachers without fear of age or disability discrimination claims. Because the U.S. Constitution protects religious institutions from government oversight, the termination of employees who perform "ministerial" duties for a religious institution isn't subject to judicial review. The question is, what constitutes a ministerial duty? The 9th Circuit, which covers California, found that teachers at religious schools are protected by age and disability discrimination laws, limiting the ministerial exception to those who play a "religious leadership" role—a test that didn't encompass elementary schoolteachers whose job is mainly "teaching religion from a book."
Writing for the Supreme Court majority, Alito rejected that conclusion, stating that the government may not presume to understand and appreciate the role played by every person at a religious institution, and the ministerial exemption can include a teacher with the responsibility of "educating and informing students in the faith." In that context, Alito continued, "judicial intervention into disputes between the school and the teacher threatens the school's independence in a way that the First Amendment does not allow." Predictably, Thomas and Gorsuch wrote a concurring opinion that would have gone further, and Ginsburg and Sotomayor wrote a dissent arguing that the constitutional analysis must go beyond "whether a church thinks its employees play an important religious role" and accusing the majority of adopting a "simplistic approach that has no basis in law and strips thousands of schoolteachers of their legal protection."
These cases may have far-reaching employment consequences. Corporate employers that claim they practice a constitutionally protected religion will test the limits of how far that protection can go, ranging from the need to provide benefits to the right to determine which nonreligious employees they can trust. If a religious institution can make somebody a "ministerial" employee just by saying so, that might create a huge enforcement hole in the discrimination laws for teachers, counselors, security officers, musicians, and just about anyone else who has any interaction with church members.
Unique issues on the horizon
Under recent configurations of the Supreme Court, every case discussed above would have been decided along ideological lines by a 5-4 vote, depending on whether swing justices Anthony Kennedy or Sandra Day O'Connor sided with the four liberals or the four conservatives. Justice Roberts has been able to broaden the consensus, sometimes bringing Kagan and Breyer along with the conservative bloc and sometimes convincing Gorsuch and/or Kavanagh to support a liberal result. In the interest of predictability for legal rule, a broader consensus is better.
I anticipate a slew of cases implicating civil rights issues, old and new. Will the broad societal trend to address centuries of discrimination lead to a change in employment discrimination laws? The coronavirus has raised new legal issues that will reverberate in about two years involving the interplay between discrimination laws protecting people based on age and disability and public health laws that seek to protect vulnerable populations. Restrictions and regulations are being placed on employers without the administrative protections we are used to, and the extent of governmental power to enact such rules will likely go to the courts. The best we can hope for is nine men and women who can stand above the political fray and decide the issues based on sound legal and constitutional principles.
For much of the next three months, you will hear both campaigns stressing the need for its candidate to appoint the next Supreme Court justices. I don't understate the issue, as the quality of Supreme Court justices is important. But I worry when presidential candidates promise to appoint justices whose politics are just like theirs and who will commit to ruling in a certain way on the chief societal issues of our day. Judicial candidates shouldn't promise results, only that they will render fair, reasoned, and smart decisions. I take solace in the notion that justices with a job guaranteed for life will leave biases behind and do what is lawful and right in their eyes. There may be legitimate gripes against our highest court and the judicial branch as a whole, but it has been reliably more logical and dependable and less political and corrupt than either of the two other branches of federal government.
Mark I. Schickman is an editor of California Employment Law Letter. He can be reached at Schickman Law in Berkeley, mark@schickmanlaw.com
Making our nation better, one workplace at a time
From: California Employment Law Letter | 06/22/2020
by Mark I. Schickman, Schickman Law
Remember seven months ago, when people were still traveling? I was speaking at the HRComply national human resources institute in Nashville, Tennessee, giving a presentation on job wellness and its evil twin, burnout. At the time, with low unemployment and surging business, the concern was how to keep a workforce happy, stable, and productive without being brought down by high-stress work or an unsupportive work environment.
Circumstances have changed since then. The threat to today’s workforce likely isn’t burnout. It hasn’t been named yet, but it is surely there and will be named soon. The diagnostic criteria for post-traumatic stress disorder (PTSD) expressly exclude the loss of a job, but our workforce as a whole will experience something like PTSD for years to come.
The distress arises from people worried about their jobs—if they will have them and how long they will last. The Federal Reserve and the Congressional Budget Office both project the unemployment rate will settle at 9.3% at the start of 2021 and remain at 6.5% through 2022. Earlier this year, the unemployment rate was 3.5%. Many of your employees will watch their colleagues and friends lose their jobs. That in and of itself is a big stressor.
While finances are the biggest employee worry, health concerns come in a close second, according to an April 2020 survey by MetLife. Not surprisingly, between the two overlapping stressors, almost 70% of the workforce is reporting higher incidences of stress.
But as big as that double dose of stress is, it has been eclipsed and forced out of the public consciousness by the social revolution arising over the past few weeks after the tragic killing of George Floyd in Minnesota. Even if the coronavirus hadn’t wrecked the economy and killed more than 115,000 Americans and counting, the workplace would have been on edge as protests and curfews were affecting life all over the nation.
This time it’s personal
The stressors are stronger than usual because each is personal and in-your-face. Your workers are unable to pay their rent, are hypervigilant and jumpy over coughs on public transport, are enraged about decades of personal inequality, and now feel empowered to express it. Some of your employees are resentful over a sudden and broad loss of personal freedom, experiencing a sense of house arrest. Some are passionately involved in the protest movement, while others may be angry about being unwittingly caught in the middle of a demonstration or worried about their safety if the local police are disbanded.
Each individual is personally worried about getting sick or losing a home or being endangered because of their race. This is the furthest thing from an academic or ethereal debate.
My general employment recommendation is to prohibit the discussion of heated politics in the office. But the three crises have so drenched our collective consciousness, any rule prohibiting their discussion would be honored only in the breach. If there is a silver lining to the current forced employee separation, it is that the social, medical, and economic debates aren’t as likely to be held in the office or spark tension among employees.
So how does an employer support its workforce through this trifecta of stressors? Start with pragmatic accommodations:
Be flexible with employees who are experiencing childcare difficulties.
Respect and accommodate employee requests to remain on leave.
Provide masks, shields, sanitation, and space to your workers while rigorously prohibiting visitors or customers from getting close unless they, too, take the proper precautions.
For most employees, that may be enough.
Lessons of burnout
Much of the concern is more than pragmatic, but emotional, too. Many employers are resorting to a standard bag of tricks, promoting employee assistance programs or offering a fixed number of hours of psychological counseling.
But a 50-year study of burnout also offers some lessons. Burnout begins with a combination of two factors: concern about the value of one’s work, coupled with an emotional reaction to workplace issues. But health professionals who studied the syndrome for the past five decades wondered why some employees faced with those two factors suffer burnout and others do not.
Organizations ranging from the Mayo Clinic to the World Health Organization use different terms to describe the disparate responses, but all agree one catalyst that amplifies and embeds the burnout syndrome is “disassociation” from the workplace—feeling alienated from other workers and uncertain about management rules and motives and the future.
The problem is almost everybody is feeling that disassociation now. Quite literally, employees are required to disassociate from one another, exacerbating isolation and the lack of support. They feel a lack of control over their own employment destiny, unclear about what the future holds in their own workplace. For some, the lack of remote support or the challenge of putting themselves in harm’s way for the sake of work creates a dysfunctional workplace—as surely as a bully or a badgering boss. In addition, social upheaval is creating barriers between people that feeds disassociation, literally an us-versus-them perspective of our place in America.
Employers need to find innovative solutions to the problem because the classic answer isn’t available. Ordinarily, the prescription is for more employee interaction in a closer office environment, where teamwork and mutual support are implemented and bonds among employees strengthened. That solution has been taken away from you.
Perhaps disassociation can be combated, however, through solidarity in a common purpose. Employees may not be able to be in the same place, but they can be working for the same goal. The goal might be creating a newer, stronger, safer office environment. The goal might be developing new skills and incorporating them into the job. The goal might be helping the company rebrand and recreate itself for its reopening.
Or one might think bigger, and the common goal might be to help develop a fair, nondiscriminatory, and equal office environment and turn it into a model of how to make our common nation better, one workplace at a time
From: California Employment Law Letter | 04/12/2021
by Mark I. Schickman, Schickman Law
Like many of you, to me the most amazing revelation coming out of Oprah's interview with Harry and Meghan was the disclosure that when the duchess of Sussex needed help in dealing with the British royal family, she went to HR. And as is so often true when a complaint is made about a family member in a family business, HR fell short.
An heir to a family business imports high-level outside talent, who was a star in her own right in her previous post. Senior managers, family members all, don't like the idea of bringing an outsider into the firm against long-standing tradition. Lacking support within the firm, and suddenly having to perform on one of the world's biggest stages, she finds nowhere to turn for help when her colleagues turn cold. She is attacked and hounded by the press, critical of how she is playing her role. The pressure mounts, affecting her mental health, perhaps making her suicidal.
So she speaks to a senior member of the firm, who tells her that seeking mental health assistance would not be good for the institution. Other colleagues tell her just to lay low and avoid the press. Many employees would let the matter drop right there, but the duchess went one step further, perhaps with the same instinct that you and I have—she went to HR.
HR's reported response was not perfect, but quite predictable: It punted, saying you're not an employee and there's nothing we can do for you. In fact, what could they do? Though it may be called an "institution" or "the firm" and it may earn 150,000,000 pounds a year and control a billion pounds in assets, it is first and foremost a family. The living poster for nepotism.
Can you imagine the conversation between the head of HR and the head of the royal family? "Hi, Liz and Phil. This is Sue, from HR? . . . An issue has come up with one of the royals who is having workplace issues, and I want to send her to the EAP. . . . Who is it? Respectfully, I think I need to keep that confidential. . . . You're commanding me to tell you? Can queens still do that? OK, it is one of the duchesses . . . OK, OK, the duchess of Sussex, you know, Harry's wife? . . . Yes, we told her to take it in stride, keep a stiff upper lip, it's all part of the job, but she's sensitive that Harry's mother died in this job, and it is getting to her. . . . Oh, you will take care of it unofficially? OK. Thanks. I'll go back to filling out my GB 101 forms."
Ultimately, the matter remained unresolved, and the executive couple quit, well positioned to land on their feet. Especially in family businesses, this is a sad and common tale. It translates to a personnel problem that would have been better served for everyone by early resolution—better for the duke and duchess of Sussex, better for the royal family, better for the prospect that "the sun never sets on the British empire." Better for everybody but Oprah.
So far, I haven't mentioned the word "racism," an important issue that stands independent of the problem of bringing any outsider into a tight-knit hierarchical family business, who then (fairly or not) perceives a hostile environment and an HR department ill-equipped to deal with it. The queen's press release supporting diversity was deftly drafted but created a Captain Louis Renault moment for an institution that at its core has less diversity than Archie Bunker's dream house. Is anybody surprised by the notion that the royal family lacks diversity? Really?
One can expect diversity directives, training, and procedures to vigorously flow down from the royal household, and you know the institutional HR department will be better equipped to handle it in the future. Whether those changes will have any effect on the strata in which the duke and duchess functioned is a more dubious proposition.
As for the royal family brand, its reign has lasted over 1,200 years, so nobody should count them out. But even in the United Kingdom itself, more and more people are asking if they really need a monarchy. Elizabeth is also the queen of Canada, Australia, Jamaica, the Bahamas, and 10 other countries, and you know the Royals' exits did nothing to shore up support there.
Like so many HR issues, the ripples go well beyond the personnel involved.
Mark I. Schickman is an editor of California Employment Law Letter and can be reached at Schickman Law in Berkeley, mark@schickmanlaw.com.
500-day journey to the new normal at work
From: California Employment Law Letter | 04/29/2020
by Mark I. Schickman
I hope all of you are safe and secure, wherever you are working or sheltering. With our persistent joint efforts and with all the help we can get, we will get through the coronavirus crisis. When will America's workplaces return to normal? My short answer is, we will never return to the normal we remember, but with a lot of effort, we should reach a new stasis in 2022. One thing is certain: The workplace in 2022 will look far different than it did two months ago.
Over the next 18 immensely important months, all of us will face short-term crises that will lead us to the new employment reality. Of course, we need to have a strategy to take us through the next year and a half, but we also need a vision of where we hope to be heading.
'The best-laid plans of mice and men often go awry'
That axiom by Scottish poet Robert Burns has never rung truer. We've all sat through dozens of long-range planning programs and disaster preparedness sessions without ever coming close to imagining the circumstances we're seeing today. We've endured programs in which we were asked to anticipate and train for disruptive technologies and the new skill sets some employees would need, but nothing approaching the current situation was ever put on the board.
Had anyone suggested a hypothetical training session on what to do if every employee was considered a potential carrier of a fatal contagion and most of America's workforce was ordered to shelter at home, most businesses were ordered to lock down, and the unemployment rate increased tenfold over the course of a month, nobody would have attended the program. So none of us was prepared for this. Still, employers across the country are rising to the many challenges we're now facing.
First, focus on the immediate issues
The current state and county limits on business operations and employee attendance at the worksite will determine our actions for the next month or so, dictated by public health needs. Hopefully, you've established remote work setups for employees who can perform their jobs at home. Essential businesses that remain open should have implemented and posted procedures for hand washing and sanitizing, wearing masks, and social distancing for employees who are still coming to the worksite as well as provided sufficient space, hand-washing stations, and supplies. Benefit policies and procedures should be designed to support operations while maximizing the benefits to which employees and former employees may be entitled. We'll likely remain in this crisis period for the next two months.
We won't stay in crisis mode past June 30, as employees and businesses cannot stay dormant and forgo income forever. But California and many of its counties, along with most of the nation, won't risk a return to the trends and patterns of contagion we saw last month; the spread of coronavirus will return with ferocity unless significant public and workplace restrictions remain in place. So, as we reopen commerce, we'll be subject to employment rules and norms quite different from those under which we've lived for decades.
Necessity will overtake some employment rules for at least a while. Despite 50 years of age discrimination law, expect rules that keep older workers at home while younger employees report to work. And despite a half century of disability law, expect rules allowing employers to take employees' temperatures before permitting them to report to work, prioritize the hiring of people who have the COVID-19 antibody, and bar employees from the workplace depending on where they've traveled or whom they've spent time with. The disability law principle that employees don't have a right to know anything about coworkers' medical circumstances or accommodations will likely be overridden by the doctrine of immediate threat because everybody will want to know the infection status of everyone else at the jobsite.
Ramp up for the return through 2021
On a practical level, the return to an active office environment will require some changes. Physical space between employees and between your staff and visitors or customers likely will need to increase ― which could be accommodated by flexible shifts or locations. New sanitation protocols and procedures and a ban on congregating anywhere at the worksite should be put in place. You might also consider a phased return of your workforce while your business ramps up. But remember that any decision to favor one employee over another could result in a discrimination claim, so be sure you have a clear and legal reason for your choices.
Public health concerns will remain foremost in the policies of employers and regulators during the next two years as the virus ebbs and flows. The spread of coronavirus will subside over the summer, but experts are wary of a rebound in the fall. It would be great if we had ª vaccine ready by then, but researchers say that's too soon. Similarly, while we're hoping for a rapid miracle cure to take the fear out of the disease, we can't count on that.
With luck, a vaccine should be developed by the fall of 2021, although we won't know for six months how well the first batch of the vaccine worked. I anticipate a stable, fully functioning employment environment in 2022. None of us know what the new normal will look like, but there are some clues to help us prepare for it.
The Coriolis effect: Where will the best workplace be?
"The Coriolis effect" is the proposition that as we aim toward a target on Earth, we need to account for the fact that the planet is turning, meaning the target doesn't remain stationary. The clearest example is two people throwing a ball to each other from opposite ends of a spinning merry-go-round. If you aim at the spot where the other person is, you'll miss because she will have spun away by the time the ball reaches her. Instead, you should aim at where she will be when the ball gets there.
Likewise, you cannot aim to reopen your business where and how it was six weeks ago because everybody and everything has been spinning in a new direction since then. Pointing employers toward the 2022 target might actually be a silver lining to this awful pandemic, forcing us to move in that new direction out of necessity.
Two months ago, many successful employers were stuck in a classic dilemma: How do we keep workers efficiently tasked in today's business environment while simultaneously retooling and retraining the workforce for tomorrow? We knew that disruptive technologies and new and different skill sets were a challenge to the existing workforce, and we were grappling with how to accommodate that change with minimal stress on employees ― who want the satisfaction of doing their current jobs productively.
One choice has now been made for us with office disruption a given and the old reality already shaken. We should recognize that and take this forced interruption to our businesses as the springboard for our new operations. Successful businesses will envision what and where they need to be at the beginning of 2022 and take steps now to get there. Don't aim toward where you were last month but rather toward were you will be next year. Here are some things to be aware of:
Your workforce will telecommute more. Whatever your past rules were, this crisis has proven that you can set up remote workstations if you need to, and the pressure to do so will mount. Employers will devote the money saved on rent to improvements in communication and technology. That creates challenges, ranging from keeping track of employees' working time, to preventing distractions in the home office, to enforcing employment law posting and occupational safety obligations.
Workforces will rely on fewer people and more technology. The value of personal contact will be replaced by the value of safe space. Many employers that are required to reduce the density of their workplaces will do so by supporting fewer employees with beefed up technology. Employees will need training in those (or other) new technologies. The current business lag could present the opportunity for that training to occur.
There will be a new balance between personal privacy and workforce safety. At least over the next year, job assignment decisions will often be made on the basis of age or medical condition, likely with proof-of-health standards heretofore unheard of. The Equal Employment Opportunity Commission recently issued emergency guidelines for employer inquiries into employees' COVID-19 exposure that broaden previously permissible inquiries. I expect public policy to change with those emergency rules, creating new personal and employer obligations to prevent disease from spreading in the workplace and beyond.
Even before this crisis, employees and applicants sought jobs that provided flexibility and a commitment to their well-being. Our experiences with coronavirus will reinforce those goals with a new intensity. Taking steps to create a safe workplace that allows a sense of flexibility and well-being will be the key to obtaining the best employees.
Solving crises while looking ahead
It's difficult to keep your eye on distant signposts while traversing a rocky precipice, but that's the job we have. Keep your eyes on the ground: Every early detail you get right helps lay the foundation for an 18-month course back to full operations and more robust business. More important, it can save lives. Containing the virus's spread and restoring public health has to be your first priority.
But you should also know where you want to be when this is over. Should your workforce look exactly like it does now? What new skills or resources will your employees need? Will you be in a position to attract the best talent for your organization's needs? How will you incorporate remote work in your business structure? Are you poised for the new needs of your customers or clients?
Nabil Sabio Azadi wrote, "When fishermen cannot go to sea, they repair nets." While some of our efforts are hobbled by the coronavirus, take the opportunity to prepare for the new horizons ahead. while staying safe, everyone.
Walking the fine line between worker safety, bias claims
From: California Employment Law Letter | 05/26/2020
by Mark I. Schickman
Public health experts are laying out a medically wise blueprint for repopulating the workplace. Among the recommendations is delaying the return of "vulnerable populations," which include all older workers and anyone with an "underlying medical condition." We can also anticipate calls for establishing a hiring preference for workers who can document they have coronavirus antibodies and for refusing shifts to anybody with a fever or a cough.
But that pragmatic advice about those return-to-work situations is likely illegally discriminatory under current law. Your best intentions about keeping your workers safe can lead to major litigation headaches in the months to come.
Who knows what statutory changes the future brings, but the current law was established decades ago in a case involving Johnson Controls, a company whose employees worked with a chemical known to cause birth defects. So the company established a rule preventing pregnant women and women of childbearing age from working around the chemical. Despite the employer's protective goal, the mandatory rule was found to constitute discrimination on the basis of sex and pregnancy. Thus, in some very simple and subtle ways, you must make sure your rules follow the law as well as your best intentions.
Review helpful new EEOC guidelines
The Equal Employment Opportunity Commission (EEOC) has just issued some useful guidelines on the issue, found at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. The guidance doesn't bind state or local employment or benefit rules and regulations, so you have to be aware of, and comply with, all of them. But it does anticipate and answer many of the tough questions you'll face, in a manner that generally will comply with state and local employment discrimination laws. The examples range from whether you can take an employee's temperature as a condition for working to whether you can defer a job offer's start date as a result of the current work and economic conditions.
One simple rule is, you can't ban from the workplace older employees or individuals with conditions that may put them at risk. If those workers want to come to work, the EEOC confirms it would be age or disability discrimination to say they cannot. A flat rule prohibiting their employment clearly violates federal antidiscrimination laws and any state or local counterparts.
Reasonable accommodation meets risk of substantial harm
The situation gets complicated when we apply two other doctrines. If a vulnerable employee has medical concerns about returning to work, you have to commence the "interactive dialogue" and undertake a "reasonable accommodation" analysis. As the EEOC confirms, many of the conditions recognized as "underlying medical conditions" to the coronavirus are also "qualifying disabilities" under the Americans with Disabilities Act (ADA) and its state counterparts: diabetes, heart conditions, asthma, high blood pressure, and so on. Everything you do to try to mitigate the virus—space separation, shift rescheduling, the provision of masks, telecommuting—should be viewed through the accommodation lens.
The second doctrine is the defense of "risk of substantial harm," which allows an employer to deny employment that's dangerous to an employee's health, even with reasonable accommodations. However, the test is extremely hard to meet. You cannot use a general test based on stereotypes about the employee's class, but must make an individualized assessment based on a reasonable medical judgment about her disability, using the most current medical knowledge and the best available objective evidence.
Only after going through and documenting all the steps, and providing facts to support your conclusion, can you establish that an employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation. In other words, you can't easily rely on the risk of substantial harm defense to defeat an ADA claim.
On the other hand, employers have much more leeway when it comes to protecting employees and customers from contagion. You can require employees to wear protective gear and engage in infection control practices, recognizing that a reasonable accommodation might be necessary (e.g., providing nonlatex gloves). The EEOC is clear that you may:
Take the temperature of every employee who enters the workplace;
Screen for COVID-19 symptoms; and
Require employees to stay home if they are symptomatic (even while remembering asymptomatic people can be contagious, too).
Final words
Wisely, the EEOC guidelines caution that the "guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information." In other words, the rules are likely to change again, so, despite all of the agency's good guidance, it's important to stay tuned.
Firing drummer was a protected act of free expression
From: California Employment Law Letter | 02/21/2019
by Mark I. Schickman
We are often asked whether being an "at-will" employer means a company can terminate somebody for a discriminatory reason—for example, because she is a woman or a person of color. The answer is no. The at-will-employment doctrine does not protect employers from the consequences of discriminatory job actions. But the 2nd District Court of Appeal recently held that some employers may be immune from the consequences of discriminatory terminations.
Eddie, hold on to me
Edward Mahoney is a rock and roll singer-songwriter better known as Eddie Money. Between 1976 and 1989, he had a handful of top 20 hits, including "Two Tickets to Paradise," "Take Me Home Tonight," and "Baby Hold On." He has played concerts across the country throughout his career, firing his band members when he isn't touring and rehiring them when he's ready to hit the road again.
Glenn Symmonds is a musician who worked for Money from 1974 until 2015. During that time, he performed primarily as a drummer at concerts and in studio and played in bands that opened for Money. He also sometimes managed merchandise sales at concerts. Unfortunately, Symmonds injured his back, making it difficult to lift heavy boxes. He also was diagnosed with bladder cancer, which required him to wear diapers.
Symmonds needed accommodations to perform his job, including taking breaks during assignments so he could recover from the exertion and change out of his soiled diapers or underclothes. Money would quip about his condition during concerts, referring to Symmonds as "Chemo the Drummer" and joking that the concert tour was sponsored by Depends, a brand of adult diaper.
In 2015, Money rehired his band after a layoff, but he didn't rehire Symmonds, opting instead to use a younger drummer who wasn't disabled. Symmonds maintained that he was better skilled and qualified than his replacement, and claimed his age, cancer, and back condition were actually the "substantial motivating reasons for his termination." He filed suit, arguing that Money's actions constituted unlawful discrimination, harassment, and failure to accommodate under the California Fair Employment and Housing Act (FEHA).
Money responded that he didn't discriminatorily fire Symmonds; rather, he wanted to perform with his adult children, which was why he didn't rehire his longtime drummer. He also noted that he is older than Symmonds, the Depends joke was a reference to himself, and other band members he did rehire are in their 50s. Ordinarily, that factual dispute would be resolved at trial, but Money used a special procedural device to stop the case from getting that far.
SLAPP you home tonight
After being sued, Money filed an early motion to strike Symmonds' discriminatory termination claims under a special provision of the California Code of Civil Procedure, commonly called an anti-SLAPP motion (i.e., a motion to stop a "strategic lawsuit against public participation"). Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from constitutionally protected free speech or petition rights that are a matter of public interest. If the defendant makes that showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.
The public policy asserted by Money was the First Amendment to the U.S. Constitution, which gave him the right to select anyone he wanted to perform music for the public with him. The trial court disagreed. It found that Money's jokes about Depends and Chemo the Drummer and his failure to engage in an interactive process to reasonably accommodate Symmonds' disability were not actions protected by the First Amendment.
The trial court found that although the termination affected constitutionally protected free speech activity, that didn't mean a discriminatory or retaliatory termination was an act in furtherance of free-speech rights. Because Money didn't meet his burden of establishing the first step, the trial court denied the anti-SLAPP motion and didn't address the second step.
No tickets to paradise
Money appealed, and the court of appeal reversed the trial court, finding that "music, as a form of expression and communication, is protected under the First Amendment." According to the court, acts that "advance or assist" the creation and performance of artistic works are acts in furtherance of the right to free speech for anti-SLAPP purposes. The court found that "a singer's selection of the musicians that play with him both advances and assists the performance of the music, and therefore is an act in furtherance of his exercise of the right of free speech." The court rejected the earlier cases to the contrary on which the trial court relied.
The court of appeal found that musical performances are matters of public interest, noting that Money "has sold millions of records, [has] hundreds of thousands of people following him on social media, . . . [and] continue[s] to perform at concerts across the country." As a result, constitutional protections applied in this case because his termination decision was an act in furtherance of his free-speech rights in connection with an issue of public interest. Because the discriminatory motive couldn't be separated from the termination itself, the termination was protected even if it was discriminatory.
The court of appeal reversed the trial court's denial of the anti-SLAPP motion and sent the case back to the lower court, where Symmonds will be required to sustain his burden on the second step of the anti-SLAPP analysis and prove he has a likelihood of prevailing on the merits. If not, his claims challenging his termination will be dismissed. Only his termination claims were the subject of Money's anti-SLAPP motion, so his other claims (ranging from a failure to accommodate his disability, to sexual harassment of his wife ) are unaffected by the ruling. Symmonds v. Mahoney (California Court of Appeal, 2nd Appellate District, 2/1/19).
Bottom line
The court of appeal noted that "balancing the compelling need to protect employees . . . with free speech rights can . . . present very difficult questions . . . [in] cases like this one, in which antidiscrimination protections run up against an employer's free speech rights. . . . [R]easonable minds may differ on the proper resolution." The California Supreme Court is currently reviewing several anti-SLAPP cases, so the law on this issue may soon change. But for the moment, putting together a backup band is a constitutionally protected act of free expression—it's not only rock and roll
Was Perry White an Abusive Boss?
By Mark I. Schickman, Sep 28, 2018 , HR Management & Compliance
If I asked whether a manager can demand solid job performance from an employee who reported or witnessed alleged acts of harassment, we would all say yes. If I asked whether a manager could threaten or retaliate against that employee, we’d all reply with an emphatic no. We’ve all been presented with scenarios that lead us to ask, is the employment action we’re about to take legitimate supervision, or is it retaliation? Sometimes, taking the extra step of asking that question makes all the difference. Such a scenario recently arose at CBS News, in a familiar context.
The gruff editor is an iconic American archetype hero, challenging reporters to solidify their sources before publishing a story. Think of Perry White killing Lois Lane’s exposé of Lex Luthor because her witness disappeared or Ben Bradlee putting the brakes on Bob Woodward and Carl Bernstein’s Watergate scoop, which eventually brought down Richard Nixon. CBS News reporter Jericka Duncan was investigating the latest accusations against CBS leveled by the New Yorker, which published the sexual harassment claims of seven women against Jeff Fager, a longtime 60 Minutes producer and former chairman of CBS News. When Duncan contacted Fager for comment, he texted her: “If you repeat these false accusations without any of your own reporting to back them up[,] you will be held responsible for harming me.” Is that the boss’s improper interference with an investigation or a proper admonition we’d expect from any good editor? In other words, “Don’t just take what you hear at face value, but do your job.”
Let’s assume what Fager said was OK to that point. But he added, “There are people who lost their jobs trying to harm me[,] and if you pass on these damaging claims without your own reporting to back them up[,] that will become a serious problem.” Duncan complained about Fager’s text, and CBS wasted no time in terminating him, with Duncan dramatically breaking the story on CBS Evening News. Anchorman Jeff Glor made the unusual move of expressing the support of everybody at CBS Evening News for Duncan.
Fager concurred that he was terminated for sending the text, but he objected to the move, saying: “My language was harsh and, despite the fact that journalists receive harsh demands for fairness all the time, CBS did not like it. . . . One such note should not result in termination after 36 years, but it did.” True, as Fager notes, it is common to demand fairness and solid sources from reporters. We all sympathize with the journalistic principle that stories should be independently investigated, and a veteran 36-year executive producer has the right to demand that due diligence. The same is true of any manager in your organization who demands solid performance, honesty, and diligence from his subordinates in any function. But Fager ignored two cardinal principles that you and your managers shouldn’t ignore.
First, when you’re the subject of an investigative report, you have no business supervising it. You cannot be objective, and perhaps worse, you can’t possibly look objective. Any manager who is confronted by a subordinate’s charges of sexual harassment needs to stand mute, knowing he can challenge the charge vehemently to HR, but not by responding directly to or lecturing his accuser.
Second, counseling and business direction may be fine, but threats are not. Fager likely would’ve gotten away with the admonition to Duncan to investigate both the charge and his denial fully and fairly before going on air with her story. But what could he possibly have been thinking when he texted her that others had been fired for going after him, and if she was unfair to him, “that will become a serious problem”?
After spending 36 years on the inquisitor’s side of the microphone, Fager should know better than to threaten a subordinate who’s investigating a hot story—especially in writing! Perhaps he believed his threats would be enough to silence Duncan and was tone deaf to the sound of his words in the height of the #MeToo movement. More likely, he wasn’t thinking at all—the common denominator that’s behind most of the acts of sexual harassment and follow-up retaliation that cross my desk and yours.
There may be one silver lining for CBS, which is already touted as the most watched network. Sexual harassment has become a high ratings staple of the news. From Les Moonves, to Charlie Rose, to Jeff Fager, CBS does seem to have the most material to work with.
Politics at work: Lessons from Nazis, Google, and Top Dog
From: California Employment Law Letter | 09/12/2017
by Mark I. Schickman
There are two basic rules employers need to remember about political speech. First, you cannot control or punish employees’ political thoughts or actions off your premises or off the job. Second, you can and should prevent all political speech or conduct by employees while they’re at work.
Forty years before the state made employment discrimination illegal, California prohibited employers from terminating employees because they adopt “any particular course of political action.” Like today, the nation was awash in political debate in 1937: over protections for union workers, the Communist movement, recovery from the Great Depression, and America’s role in stopping Hitler, a debate that led to war. However you stood on any of those issues, California law protected you. California Labor Code Section 96(k) was enacted in 1999, extending that protection to all “lawful conduct occurring during nonworking hours away from the employer’s premises.” Note the word “lawful”; fighters and looters lose the law’s protection.
Freedom of thought
Freedom of thought is a prerequisite to our constitutional freedoms of religion, speech, and assembly. The Jefferson Memorial stands tribute to our third president’s “hostility against any form of tyranny over the mind of man.” Indeed, Jefferson wrote, “Without freedom of thought, there can be no such thing as wisdom.”
But, of course, freedom of thought includes the right to have stupid, venal, hateful thoughts. It is no test of democracy to protect popular politics; Mom and apple pie require no shield. Rather, the test is how we protect unpopular thought: the rights of suffragettes a century ago, ridiculed for supporting the prospect of gender equality; Martin Luther King, Jr.’s right to bring the fight against segregation to Birmingham and Selma, Alabama; and the rights of Vietnam War protesters 50 years ago, and of LGBT activists 25 years ago, against an establishment and a population that derided them both as dangerous threats to society.
When I teach about Section 96(k), I often ask the gathered HR professionals whether any of them would fire an employee because she marched in a weekend gay pride parade. Not a hand goes up. I then ask the same question, but change the example to an HR generalist photographed at a Sunday Ku Klux Klan rally. This time, the audience isn’t so sure. But the rule is the same because constitutional protections are content-neutral.
The issue was fixed for me in a case that went to the U.S. Supreme Court in 1978 when the American Nazi party sought to march in the heavily Jewish Chicago suburb of Skokie. As a son of Holocaust survivors, I know the pain and hurt that march was intended to, and did, cause the thousands of Holocaust survivors living in Skokie, but I agreed with the ACLU that unless the Nazis have the right to march in Skokie, I can lose my right to protest them if they ever take control. So let them march and then call them out for the dangerous, prejudiced menace they are. The march came and went.
Who’s Top Dog?
Until mid-August, Cole White worked at Top Dog, a hot dog joint adjacent to the University of California-Berkeley campus. On August 12, 2017, he was photographed in the TIKI-torch-carrying crowd at the “Unite the Right” rally in Charlottesville, Virginia, political activity that’s quintessentially unpopular in Berkeley. His picture was posted on @yesyoureracist, where he was quickly identified. It’s unclear whether he was fired or asked to resign, but Top Dog quickly posted a sign reading, “Cole White no longer works at Top Dog,” later adding ominously that employees “are free to make their own choices but must accept the responsibilities of those choices.”
My blood runs cold at the thought of the bigots in the Unite the Right crowd chanting, “The Jews will not replace us.” But outing members of unpopular groups is the definition of McCarthyism, a threat to free association. If White lost his job because he lawfully marched in support of the world’s worst political ideology, Labor Code Sections 1102 and 96(k) were made for him. A recent Pew survey shows that nine percent of Americans hold varying anti-Semitic attitudes, and it’s none of my business whether the guy bagging my fries is one of them.
The best employment practice is to prohibit all political discussion in the workplace. Make the topic off-limits, like discussions about religion. But if you allow political discussion to occur at your place of business, be prepared to protect all sides from any hostile or adverse reaction. At the same time, your employees are permitted to take any off-duty political stance they want.
Hey, you can’t say that around here!
Your own work rules override employees’ First Amendment protections in your workplace, so take advantage of that. You are entitled to develop and promote your own corporate culture. If that includes equality and diversity programs, an employee has every right to disagree with that approach in his heart, but he has no right to challenge or undermine it in the workplace.
Google tested the limits of that employer power when it terminated engineer James Damore on August 7, two days after Gizmodo.com published his lengthy memo about diversity at Google. The memo is dressed in scientific jargon. Damore asserts that Google’s gender diversity goals and activities are based on flawed scientific assumptions because the company ignores several nondiscriminatory factual differences between the sexes that explain part of any disparity. Worse, he charges that Google’s culture creates an “ideological echo chamber” in which he and his fellow contrarians are shamed into silence, a charge that might constitute protected concerted activity under the National Labor Relations Act (NLRA).
Google’s vice president of diversity, Daniel Brown, gave lip service to Google’s culture, in which employees with “alternate views, including different political views, feel safe sharing their opinion,” but not when the opinion conflicts with the law or with Google’s principles of equal employment opportunities. It’s a safe place to speak as long as you don’t disagree with our principles? That standard got Galileo excommunicated for claiming that the sun doesn’t revolve around Earth. Google’s policies are probably great, but it should decide whether it encourages debate or not.
Did Damore do anything more than write a memo that got picked up on a little known website? Or was writing the memo job-related activity, an internal challenge to an important Google policy? That tension is one reason it’s best to keep the Pandora’s box of political discussion closed at work. But more simply, Google faced a choice between being branded sexist or being seen as intolerant of unpopular speech, and it avoided the bigger danger. Discussion about the memo will blow over long before Google remedies the stark statistical disparities that continue to infect its diversity numbers and damage its reputation.
Bottom line
As much as you can, you should maintain your workplace as an oasis of calm in a country obsessed with political drama. But outside work, your employees are free to like, or play in, any political theater they want. The U.S. Constitution and California Labor Code Sections 1102 and 96(k) give everybody that right.
Supreme Court transition is important to employers—and the republic
From: California Employment Law Letter | 02/24/2016
by Mark I. Schickman
U.S. Supreme Court Justice Antonin Scalia's death marks a landmark in American law. Off the bench, he was avuncular, professorial, funny, and friendly, with a mind like a machine gun, dangerous and quick.
In last year’s biggest employment case, EEOC v. Abercrombie and Fitch, Scalia was the most aggressive questioner of the Equal Employment Opportunity Commission (EEOC), repeatedly challenging whether the agency used the right standard in accusing the clothing manufacturer of religious discrimination against a hijab-wearing Muslim applicant. In the end, it was Scalia who wrote the opinion for the eight-justice majority, agreeing with the EEOC and reinstating the claim against Abercrombie & Fitch. A strong intellect is not afraid to change his mind.
You either loved or hated Scalia's opinions. His dissents were stinging, with a playfulness of verse designed to attract attention. His decisions weren't consistent, and his signature principles sometimes took second seat to highly political settings. As every Democratic and Republican presidential candidate preaches as gospel that it was a mistake to invade Iraq, we can blame Scalia as much as anyone because Bush v. Gore put George W. Bush and Dick Cheney in the White House to start the Iraq War. Don't underestimate the effect of the U.S. Supreme Court.
It is fair to ask why nine unelected lawyers are given this power. I answer that, working at its best, the Supreme Court is the cornerstone of democracy. It exists ideally as a nonpartisan, intellectually honest guardian of the law, most importantly when limiting the tyranny of the majority. Presidents, governors, and legislators answer to the voters, so if 60 percent of them don't want women to drive or want to keep synagogues or mosques out of their towns, such laws will pass. It is up to the nine lifetime-appointed justices to say the Constitution trumps the ballot box when it comes to gender or religious discrimination.
We experienced the republic-saving power of the Supreme Court 15 years ago in Bush v. Gore. Half of the country's votes were canceled by the Court; the catch-22 was that if it ruled the other way, the other half of the country would be disenfranchised. A no-win situation, which would have led to riots, death, and civil unrest anywhere else. Americans accepted the decision without a hiccup. It's remarkable when you think about it. Why was the transition so peaceful? Because a 5-4 Supreme Court made the call. An honest umpire, albeit in an ivory tower.
A great justice clings to his or her consistent constitutional standards for every constitutional protection, from the Second Amendment right to bear arms, to the Fourth Amendment right to privacy, to the First Amendment right to free speech.
Those last two issues—our right to privacy and the limits of free speech—are being redefined by technology, and the Supreme Court will soon decide whether our backyards remain private under the watch of drones, whether our movements are private when we're always being recorded, whether our e-mails and texts are private when they're routinely collected and saved by Internet providers.
In Kyllo v. United States, Scalia ruled that police thermal imagery of a home was an unconstitutional "search." True to his originalist/textualist philosophy, if in 1776 it took a search of someone's home to tell how many people were there, it's a search when you use 21st century technology to do so remotely. Who knows how Scalia's replacement will rule on the next defining privacy case.
"Precedent" is an important concept by which a justice must base a decision on the Court's prior rulings. This is a partial brake on a justice changing the law based on personal preference alone. Having said that, this is a lifetime job, with no real accountability except to one's colleagues, one's integrity, and history.
I'm glad that Americans will see press about the Supreme Court; public education on the courts is pitifully bad. I hope that every judicial nominee, regardless of party or philosophy, will be a great scholar, writer, and thinker committed to justice and the rule of law—labels like "conservative" or "liberal" are secondary to those attributes. But most of all, a Supreme Court justice needs to be incorruptible, in nobody's pocket, smart enough to see the right call, and honest enough to make it.
Before the upcoming six-month harangue about liberal or conservative values on the Supreme Court commences, let's recognize the passing of one of the great legal minds of our generation; testament to that is both the praise of lawyers on the right and the grumbling of lawyers on the left. Scalia's prose will be influential for decades to come.
Let's also remember that a Court seat, albeit important, shouldn't be at the heart of the political debate. You don't ask umpires to swear allegiance to either team; you ask how good they are and how honest they are, period. We have many other important questions for all of the candidates—let's start asking them soon.
Select tender, white male employees; poach well
From: California Employment Law Letter | 10/01/2014
by Mark I. Schickman
California has a strong public policy in favor of employee mobility. As you know, agreements restricting that mobility are generally unenforceable unless they're part of a purchase of a business from the person from whom you seek a noncompetition agreement. So it was a shock when it was disclosed last year that top executives from some of California's megacorporations, including Apple, Intel, Google, and Adobe, made a backroom deal not to poach each other's skilled employees. Such an agreement would violate California's public policy as well as federal and state antitrust laws.
After the U.S. Department of Justice (DOJ) resolved its antitrust charge, private lawyers filed a class action against the companies representing 64,000 employees who claimed their salaries were deflated and promotions and lateral transfer opportunities were suppressed by the illegal agreement.
The companies tried to settle the case, and the lawyers for the class accepted a proposed $324 million settlement. But San Jose U.S. District Court Judge Lucy Koh made the rare move of rejecting the settlement as too low, saying the "ample evidence of an overarching conspiracy" put the offer below "the range of reasonableness." The employees' lawyers had been brandishing a $3 billion claim in court papers; if Judge Koh believed that figure, she balked at the notion of settling the case for 10 cents on the dollar. (For more on this case, see "Judge rejects multimillion-dollar settlement of lawsuit against Apple and others" in our August 25 issue.)
Disney animators grumpy
Poaching claims aren't limited to Silicon Valley employees. In September, a complaint was filed in the same San Jose federal court against a group of animated film companies, including Disney, Pixar, Sony, and Lucasfilm, alleging that they, too, conspired not to raid each other's animators, digital artists, and software engineers. The suit claims company executives met regularly to discuss the salaries to be paid to these employees and agree on how to limit their recruiting policies to protect each other's skilled staff. There is nothing cartoonish about these claims, especially since Judge Koh took jurisdiction over this case as well.
Sometimes I wonder whether these industry giants think the rules don't apply to them. Or maybe they think they'll just pay the fine as the least expensive way of doing business.
As another example of this syndrome, Intel, Google, HP, Yahoo!, and LinkedIn recently released their employment statistics, and they would worry any of you. HP's workforce is 67% male and 76% white and Asian. Google is 70% male and 91% white and Asian. Intel is 76% male and 86% white and Asian. Yahoo! is 62% male and 89% white and Asian, while LinkedIn is 61% male and 91% white and Asian. Believe it or not, each of these statistics is higher when they're limited to management and science positions.
No surprise those statistics are so similar—each of those companies fishes in the same pool, hiring from employment websites whose users are predominantly male, white, and Asian. Moreover, absent a concerted effort to recruit outside the box, workforce demographics tend to perpetuate themselves.
Sooner or later, these statistics will come home to roost, as Silicon Valley must go through the same transformation the advertising, accounting, legal, and medical professions did. These five corporations cannot long sustain a mean 4% Hispanic and 4% black employee population as they just reported. It portends the next multibillion-dollar lawsuit on the horizon.
An employee market
For most of the past decade, employees didn't press many issues for fear of unemployment—a crowded applicant pool looking for too few jobs. After two years of rebuilding the base workforce, hiring is about to explode. When it becomes an applicant market, employees and jobseekers are less inclined to stay silent in the face of high-profile collusive hiring arrangements or statistics that reflect nondiverse hiring practices.
Silicon Valley is known for its adaptability. Look for some major changes in the personnel practices of new technology leaders. Hollywood also may have to become a little less goofy.
50 ways to list your lover
From: California Employment Law Letter | 03/18/2014
by Mark I. Schickman
Anyone who has filled out EEO-1 forms knows the challenge of fitting humans into demographic boxes. People's backgrounds and orientations often defy ready definition, leaving you to your best guess under the circumstances. Facebook has the same problem since checking demographic boxes can be confusing or challenging for users. It has long had the "it's complicated" box, which acts as shorthand for a relationship status with a difficult definition, but that isn't specific enough to cover the broad scope of Facebook users' relationships.
In terms of sexual identity, we started with the term "gay," moved to "gay and lesbian," and then to "LGBT," which added bisexual and transgendered. Then came "Q" and "I." (Ask different people, and you'll get different answers about what those letters stand for.) Facebook has now opened the self-description gates wide with more than 50 terms that describe sexual identity. Among the heretofore less frequently used terms are androgynous, pangender, transperson, and gender-fluid.
In California, we have a legal obligation not to discriminate on the basis of gender identity, which expressly includes practical matters such as permitting employees to dress consistently with their identity. For example, if your top male salesperson comes to the office next week dressed professionally in a dress, heels, and hose announcing a sincerely held new gender identity, you have to accommodate that expression. That may seem odd today; it won't in 20 years. But are there 50 other permutations to the accommodation obligation?
We're not in Kansas anymore
California is clear in support of sexual orientation and gender expression rights. Thus, an employer that isn't a religious organization can't recruit for "Christian values," an employee may not display antihomosexual clauses from the Bible at work, and a landlord may not refuse to rent to a gay or lesbian couple. That trend has moved east, and federal courts in several states have stricken same-sex marriage prohibitions and have expanded equal protection obligations to include sexual orientation. But state legislatures are pushing back against these federal court decisions.
The Kansas House of Representatives approved a bill allowing private businesses and government employees to refuse service to nonheterosexuals. The bill was clothed in antidiscrimination language protecting those who argue their religion precludes them from serving gays; it provides that anyone who refuses to serve someone based on their sexual orientation must try to find someone else who will. The Kansas Senate ultimately refused to pass the bill, so it remains on the drawing board.
Arizona went one step further when its legislature passed a similar bill in February. But the proposal died by veto once it reached the desk of Governor Jan Brewer, who wrote that the bill was "too broad" and had "the potential to create more problems than it purports to solve." Aside from legal problems, Governor Brewer was certainly thinking about a possible economic boycott of Arizona, which began to gain traction the moment the bill was passed.
The popular truism is that trends begin in California and then move east. That's true of overtime regulation, minimum wages, disability protections, healthcare rules, and discrimination law. California has more than made its mark culturally, too. Thus far, the gay rights revolution has moved across the country. The pendulum may be swinging back, however, as it is wont to do.
Law is a matter of social policy, and America usually decides that policy by 5-4 U.S. Supreme Court votes and 52 to 48 percent elections. "Right" isn't an absolute concept but a product of majority political will. LGBTQI groups will continue to press for their legal protections, while more conservative organizations fight back on a wing and a prayer.
It's not just rocket science
From: California Employment Law Letter | 11/01/2006
by Mark I. Schickman
A recent class about the California Family Rights Act (CFRA) and federal Family and Medical Leave Act (FMLA) was full of diligent, intelligent, experienced HR professionals who had one thing in common: Several family leave issues were simply beyond them. That said more about the complexity of this field than the abilities of the program participants.
There's no way this column will solve your hardest leave issues. For those issues, call your lawyer, weigh the pros and cons - and pray. But here are five tips that will resolve 90 percent of your problems:
1. Know the eligibility rules. Only employers that have 50 or more eligible employees within a 75-mile radius need comply with the FMLA/CFRA. Also, only employees who have worked for you for more than a year and have worked at least 1,250 hours in the prior year are entitled to FMLA/CFRA benefits. But if you or your employees don't hit that threshold and you offer the benefits anyway, you're stuck. So it's important to know your eligibility rules.
2. Comply with documentation rules. Once you're given notice of an employee's serious health condition, you have a very short period of time to request a doctor's certification. You must give the employee 15 days to provide that notice. Violate the technical documentation rules and you might have no defense against a CFRA/FMLA claim.
3. Know the differences between state and federal law. The CFRA and FMLA are very similar, but they do have some important differences. For example, the FMLA allows you to ask for a diagnosis, while the CFRA doesn't. The CFRA covers registered domestic partners, but the FMLA doesn't. Pregnancy disability leave runs concurrently with the FMLA but not with the CFRA. Don't get caught by missing the distinctions between these two laws.
4. Keep all the various laws in mind. When an FMLA/CFRA issue arises, it probably implicates other legal obligations as well. Workers' compensation is triggered if the leave results from a work-related injury. Even after all FMLA/CFRA time is exhausted, you might have to grant additional leave time as a "reasonable accommodation" under disability discrimination laws. Providing divergent leave benefits could be proof of discrimination based on a protected category. Oh, yeah, you now have paid family leave to worry about, too. Make sure you separately analyze each of the various laws at play.
5. Leave can be intermittent. Remember that 12 weeks of FMLA/CFRA leave don't necessarily end in 12 weeks. Rather, if the doctor orders one day off per week, the 12 weeks of leave can last for 60 weeks - when a new year of FMLA/CFRA eligibility matures. If an employee needs one day off per week for kidney dialysis or mental health appointments and treatment, FMLA/CFRA leave protections can be literally never-ending! You may not like it, but Washington and Sacramento have spoken, so get over it.
Believe it or not, those five tips cover the easy FMLA/CFRA questions. They only get harder from here. If an employee calls on Thursday morning and says, "I'm bleeding and feel terrible. The doctors don't know what to do. I'll be in on Tuesday," have you been given notice of a "serious health condition"?
If a spouse calls to say that your employee is mentally ill and needs leave but the employee adamantly denies being ill and tells you never to listen to her spouse, have you been given notice of a "serious health condition"? What if the call is from an ex-spouse, an in-law, or a partner in a long-standing personal relationship?
What if you give an employee 15 days to return a doctor's certification form, and the employee reports that the doctor isn't responding? What do you do when you suspect that the employee is malingering? What if employees refuse to request leave when it appears obvious that they need it?
There are 1,000 more tough questions that make FMLA/CFRA/disability compliance one of the hardest HR areas around. For better or worse, state and local governments decided that they can't adequately take care of employees' disabilities and serious health conditions, so they transferred that responsibility to you. So when people tell you, "HR isn't rocket science," agree with them; it's often a lot harder.
Psycho bosses, qu'est que c'est?
From: California Employment Law Letter | 08/01/2005
by Mark I. Schickman
I'd just finished taking magazine tests to tell if I am a good father, sensitive husband, or insomniac. I then opened the July issue of Fast Company magazine and took the eight-question quiz to tell "Is Your Boss a Psychopath?"
Apparently, psychopathic bosses aren't rare creatures; rather, says the cover story, "there may be lots of them in America's corner offices." A study by University of British Columbia Professor Emeritus Robert Hare found that business luminaries from Henry Ford to Leona Helmsley to Enron CFO Andrew Fastow fall within the clinical definition of psychopaths, "the 1% of the general population that isn't burdened by conscience." Hare bases his conclusions on the "P-Scan" and the "Psychopathy Checklist" - two tests he created.
Of course, Hare's eight-question quiz seems both shallow and subjective in evaluating one's boss' personality. "Is he superficially charming" (two points if so) or truly gracious (worth no points)? Does he "have a grandiose sense of self worth" (two points), or is he justly proud of himself (no points)? Is he a "master manipulator" (two points) or a shrewd negotiator (no points)? Is he calm and cool (no points), or "does he have a shallow affect" (two points)?
Moreover, while the test punishes bosses who are "lacking in empathy . . . remorse or guilt," the boss may care deeply - he just may not care about you. A manager may feel no remorse over firing a poor employee who caused a $1 million loss or engaged in lousy customer service; he might, instead, care more deeply about the company or customer or fellow employees who are harmed by that bad job performance.
Of course, workplace relationships are too complex to be captured by one-syllable answers. The lines between manipulation and motivation, between sycophancy and sincere interest are too subtle and dynamic for accurate amateur analysis. Ultimately, the responses to Hare's eight questions - designed to analyze what's going on in somebody else's head - may say more about the answering employee than anyone else.
Finally, why the need to place people into one-word pseudopsychological boxes? I've always found that exercise pretty damaging in itself. Is it the losers and slackers who call their bosses psychopaths? Is Hare's test aimed at whiners? Do independent self-starters fall prey to this psychobabble? I personally never listen to name- callers, anyway.
Why do I care about this, then? Because America listens to Matt Lauer and Katie Couric, and I saw the usual talking heads take this quiz quite seriously on a recent Today Show - leading to the inevitable five-item graphic of "What to Do If Your Boss Is a Psychopath" (finding another job, naturally, was the top piece of advice).
I stress that I am not minimizing true robber-baron behavior. When Henry Ford imported thugs to break strikes, that was psychopathic. So, too, are practitioners of Helmsley-esque browbeating as a common form of discipline. Michael Scott, local manager of the fictitious Dunder Mifflin Paper Supply Company (in the NBC/BBC comedy The Office), is a major psychopath. Such people should be fired, sued, fired again, and permanently banned from any form of employee contact.
But I am minimizing the utility of one-word depictions of complex human organisms and complicated workplace relationships. Our job should be to make analyses and judgments more sophisticated, not simpler. So if anyone asks me to describe myself in one word, I proudly respond: "Unable to follow instructions."
From: California Employment Law Letter | 06/01/2005
by Mark I. Schickman
American labor law always has been a tool to foster public policy. Forty years ago, the dominant policy was capitalistic growth, and the very name of the field of law, "Master-Servant Relations," supported that policy. The words "unionism" and "communism" went hand in hand. Discrimination in hiring and firing was a legal - indeed, unquestioned - prerogative of the employer.
Labor policy certainly has changed since the passage of the Civil Rights Act of 1964 and has given us new directions. Most of them are clear and easy to follow.
We know we have to protect against sexual harassment to the detriment of romance. We know the prohibition against gender or race discrimination trumps all stereotyped "popular wisdom" about the attributes of sexes or races. We understand that an undocumented worker - no matter how good - can't keep his job in this age of immigration-law compliance. Those lines are easy to draw. Just tell me what policy I have to support, and I'll help you do so.
The problem comes when huge, competing public policies are at play and an employer is required to comply with all of them. Those are the cases that make us want to crawl back into bed and pull the covers over our head. According to the National Centers for Disease Control and Prevention, one of those no-win situations is about six months away from hitting your desk.
The predictions go like this: The wettest season in recent memory will bring mosquitoes, which likely will carry West Nile virus. In addition, an imminent flu pandemic will run headlong into a fragile vaccine supply, which will leave over 90 percent of our population uncovered and vulnerable. After Labor Day, the news will be chock-full of widespread, dire predictions about the flu and virus season of 2006.
In the 20th century, individual bad-flu seasons killed from 35,000 to 500,000 Americans. Extrapolating to today's population, those numbers more than double. The good news is that science has advanced since the Spanish Flu killed 500,000 Americans in 1918 and 1919. The bad news is that global travel has made our oceans a more porous form of insulation.
Do you have any obligation in connection with this issue? You bet. The problem isn't that you have a legal duty but, rather, that you have competing legal duties that clash with each other.
California law imposes the basic obligation of providing a safe workplace, which should include preventing a rampant flu epidemic. Considerations of business productivity argue toward the same result. Those factors might lead you to ban from the job site any employee with a sneeze, sniffle, or cough.
But you also have to protect against the public hysteria that can lead to medical discrimination. The panic that led to discrimination against cancer victims in the 1950s and 1960s, against AIDS patients in the 1970s and 1980s, and against any visitor to a SARS-infected region earlier this decade could be revived in 2006 - carrying a slew of lawsuits in its wake.
As an employer, what problem do you have to prevent - the risk of infection or the risk of prejudice? What workplace value must you promote - freedom from illness or freedom from discrimination?
Those answers will implicate dozens of issues, from employees who want to work through their illness because they're on the cusp of a bonus to others who won't greet clients unless everyone wears a surgical mask. The answers are hardest when competing societal goals all must be met.
The long-term answer is a "safe-harbor" law protecting employers that try their best but inadvertently fall short of the legal mark. Especially when trying in good faith to harmonize divergent policies that lead to opposite results, an employer deserves that kind of protection. Discrimination is an "intent-based" offense; good intent should be a good defense. But until such a change in the law occurs, complaints and lawsuits are apt to be yet another cost of the anticipated flu pandemic of 2006.