The NY Knicks, the NBA, and RJ Smith: Office Pranks and Terminations
When do practical jokes at the office go too far? And when do they become grounds for employee termination?
These are some of the questions I’ve been asked since the New York Knicks guard, RJ Smith, made headlines for untying his opponent’s sneakers during the game at the free throw line.
He did it once and received a warning from management. He did it again and got fined $50,000 from the NBA. But that hasn’t stopped the serial prankster who was spotted pretending to untie a guest’s shoe at a Manhattan night club this weekend according to Deadspin (photo).
His future with the Knicks is now uncertain.
Is it a harmless prank? Or unsportsmanlike conduct?
It depends on where you’re sitting.
Fans laughed hysterically over the kindergarten prank and USA Today sports writer Nate Scott echoed their sentiment:
“J.R. Smith did something totally pointless that gave us all something to make jokes about for a few days on the internet. For that, we thank him, and as it wasn’t our $50,000 we had to pay the league, we think it was totally worth it.”
If you’re a potential target of the mischief, it’s not so funny. It can push you over the edge. Miami Heat forward Shane Battier, for example, said he’d retire from league if Smith tried to untie his shoe.
Can you blame him? He’s there to play basketball, not one-two-buckle-my-shoe.
Oh, and the perspective from the corner office? Management is not amused for a number of reasons:
- A loose shoe lace is a tripping hazard and a safety issue. That makes it a liability issue.
- The prank created a sideshow and unwanted publicity. That makes it an unnecessary distraction.
- Untying an opponent’s shoe is unsportsmanlike conduct and the player’s failure to stop it makes him a liability.
Is it enough for termination?
This is where it gets complicated. The Knick’s senior management will have to evaluate whether Smith can be relied on to get his act together and whether the value he brings to the team outweighs the baggage. In other words, do they want, or need, to fire him?
If the answer is yes, the next question is: What does his employment contract say?
If his behavior triggers a contract provision permitting termination or another option that has the same net effect, such as trading the player, the path forward is clear. If not, management will need to read the contract very closely to see what other options is has.
Unlike professional athletes, celebrities, or high powered C-suite executives who have employment contracts, the rest of us in the United States are typically “at-will” employees (unless you’re a union member under a collective bargaining agreement).
“At-will” is an ancient legal term rooted in the master-servant relationship. It means you serve at the will, or at the discretion, of your employer employer. There is no absolute right to getting or keeping a job in the U.S.A., although there are laws that prohibit certain types of discrimination.
These laws serve to protect certain classes of employees and limit employer discretion. Notice I said “limit,” not eliminate descretion. As you’ve probably guessed, office prankster is not a protected class and jokes that get out of hand can be grounds for termination.
Unless a contract says otherwise, it’s not illegal to terminate an employee for being a jerk, no matter how much their antics tickle your funny bone. The NY Knicks and your business are here to play ball, not childish games.
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How Policies Create Liability Blind Spots: The Case of Disability Bias
A best practice for keeping your business out of legal trouble is to establish policies and enforce them consistently. Executives, managers, and entrepreneurs are told that consistency is the key to fairness and protects you against discrimination claims. But sometimes it can land you in hot water.
“How is that possible?”
It happens when your business practices negatively impact individuals whose rights are protected by the spirit or letter of an existing law. These days most businesses know enough about illegal discrimination to keep for directly discriminating against a protected class, for example a hiring policy that says no one over age 40. But what you might not realize is that indirect discrimination can be just as bad. Here are a few examples.
The Case of the Recovering Employees
Most businesses have a workers’ compensation policy that covers what happens if an employee is injured on the job and unable to report to work. Part of the policy deals with compensation and part of the policy deals with lost time and how long someone can remain off the job before the company has a right to say, “OK we realize you’re not able to fully recover and do your job anymore so we can no longer keep you on the payroll.”
Giving everyone the same maximum amount of time to recover and report back to work would appear to be a liability security blanket, or so the folks at retailer Sears, Roebuck and Company thought when they fired a service technician after his workers’ compensation leave had expired. After all, everyone gets the same amount of time and everyone has the same consequences. It’s perfectly fair, no?
“No,” said the technician who filed a discrimination claim with the Equal Employment Opportunity Commission (“EEOC”).
“No,” said the EEOC who on further investigation the EEOC discovered that hundreds of Sears employees who had taken workers’ comp leaves were also terminated when their time was up.
The EEOC said the problem with these terminations is that they happened without any consideration of whether a brief extension of time would allow the employees to return to work or whether a reasonable accommodation by the company (other than more time) would allow them to return.
The failure to look at the situation on a case by case basis to determine whether a reasonable accommodation or extension of time could be made was viewed as a violation of the Americans with Disabilities Act (“ADA”). Sears settled the class action suit for $6.2 million (which at the time was the largest monetary amount ever awarded in a single ADA suit with the EEOC).
Unfortunately, Sears’ blanket use of a one-size-fits-all policy created a liability blind spot. They didn’t think through the consequences of their policy and how it impacted a protected group.
The Case of the Capable Job Applicant
In another ADA case, hiring practices came under review when a young deaf Maryland woman was denied a job as a team member at a Toys ‘R’ Us store in Maryland.
During the application process, the woman was invited to attend group interview and when her mother told the hiring manager that the girl was deaf and would need an interpreter for the interview she was told they would have to provide their own. The girl’s mother pitched in at the interview, interpreting for her daughter who communicates using sign language and through lip reading and writing; but, despite the girl’s clear qualifications she still didn’t get the job.
Unfortunately, hiring decisions are more discretionary than democratic so when the girl filed an EEOC complaint it was no surprise that efforts to mediate the case failed. But then the EEOC took matters into its own hands. They filed their own suit against the company for violation of the ADA and that’s when Toys ‘R’ Us realized this wasn’t a game. It quickly settled for $35,000.
Toys ‘R’ Us could have hired the girl and made a reasonable accommodation to allow her to be a team member with the help of an interpreter, but they didn’t.
ADA applies to employees and job applicants
Hiding behind discretionary practices and policies can create liability blind spots. Before adopting any business policy or practice it’s always good to think through the consequences. Ask yourself who might be negatively impacted and whether their rights are protected by employment laws such as the ADA.
The ADA applies to job applicants as well as those who already employed. It pays to periodically review your business practices and eliminate liability blind spots.
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The No Nonsense Lawyer Gets Unplugged: 2013 in Review
It’s been a fascinating year with amazing disclosures. After all, who knew that JP Morgan made misrepresentations until they told us in that record breaking $13 billion settlement with Uncle Sam?
It’s been so much fun that it’s tough narrow the field. But after scouring my files and a few holiday eggnogs, here’s my top 3 picks for 2013:
Paula Deen’s Recipe for Disaster
Paula admitted to using racial slurs during a sworn deposition in a harassment case brought against her, her brother, and one of her businesses. The problem here isn’t that she told the truth, the whole truth, and nothing but the truth. The problem is what happened afterward. It was her poor handling of the subsequent media feeding frenzy.
It’s no surprise that a white Baby Boomer raised in the deep South would have heard racial epitaphs while growing up in the pre-civil rights era and even uttered a few before they became more enlightened in their later years. But going on the Today Show and trying to tell the world you only used a bad word once? Seriously?
And then there were the tearful homemade apology videos that ended by lashing out at the plaintiff. ‘Common Paula, that’s no way to butter up your audience when film clips of past TV interviews and juicy deposition testimony say otherwise.
In the end eleven sponsors dropped Deen and her TV cooking show wasn’t renewed. It brought her culinary empire to its knees in a matter of weeks . . . all because a business conflict boiled over into a lawsuit with a public record.
Paula, you probably already know that a watched pot never boils. Well, the same goes for business conflicts. Keep your eye on the pot, manage the heat, and you won’t get burned.
The Dynasty that Ducked
Freedom of speech means you can say what you want, but you’ll also have to deal with the consequences as Duck Dynasty’s Phil Robertson found out when some anti-gay and racial comments he made during a GQ Magazine interview got him banned from his popular show. But then as the Robertsons are fond of sayin’: “just ‘cause you’re smart doesn’t mean you’re smart.”
When the rest of the Robertson clan closed ranks and told the network bigwigs the show couldn’t go on without their beloved Duck Commander the folks in the corner office caved. So who’s the smarty pants now?
When you compare Duck Dynasty’s near brush with death to Paula Deen’s experience, you can’t help but wonder whether the Robertsons’ happy ending was more a result of luck than smarts. Time will tell. But in the meantime, given their new found merchandising savvy, don’t be surprised if they launch a line of Duck Tape [sic].
Regardless of whether you think Edward Snowden, the former National Security Agency contractor who spilled the beans about NSA’s surveillance practices, is a traitor or a whistle blowing hero, there is a lesson in this case for businesses who are interested in protecting their confidential information.
Pay attention to your employees and contractors who work with sensitive, critical information. Use background checks before hiring and once an employee is on board keep a finger on the pulse and monitor for risks that might cause an employee to act in a manner that is against the company’s best interest.
That’s right; a combination of high tech and low tech techniques can protect your business and keep you from getting “Snowed.”
In sum, there’s no substitute for good risk management practices and exercising good judgment when striking the right balance between protection and exposure. As you get ready to welcome 2014 and the treasures it holds in store for you, I offer this heartfelt variation of the Serenity Prayer:
Please grant me the foresight to ask the right questions
The strength to recognize and accept the truth
The serenity to accept the things I cannot change
The vision and courage to change and improve the things I can
And the wisdom to know the difference
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The legal aspects of social media micro marketing for sales professionals and their companies
Sales professionals working in today’s hyper-connected business environment have many reasons for harnessing the power of social media as a tool for micro marketing. Social media is immediate. It’s authentic. It’s fast. All of that makes it ideal for connecting with prospects and leads, and a tremendous asset in the sales process. So, what’s the problem?
The problem is this: a fear that hot-headed comments can be posted and go viral long before a cooling off period kicks in because there’s no editorial filter beyond the poster’s own judgment and discretion.
After all, in your world it’s a tweet, a “like,” a chat, or a hangout. In my world those electronic footprints are all evidence. They can tell a good story or a bad story.
How will you know and who will be responsible for the fallout? It depends.
WHOSE SOCIAL MEDIA ACCOUNT IS IT?
From a liability perspective it doesn’t matter whether a social media account is:
* owned by the business,
* owned by the employee but used exclusively for business, or
* owned by the employee and the content represents both business and personal use;
IF your business is encouraging or requiring your sales professionals to use these accounts for business purposes. You’ll be on the hook. Account ownership on its face doesn’t absolve liability, however, it can be a deciding factor in determining who owns the content and its corresponding friends, followers, etc. But if you’re smart you’ll negotiate those ground rules up front to avoid surprises at a later date.
HOW CAN THE BUSINESS BE LIABLE FOR AN ACCOUNT IT DOESN’T OWN?
Liability for a social media account your business doesn’t own happens when sales professionals use these accounts for business as part of their job. When that occurs those activities are “within the scope of their employment” (magic legal words) and that means your company can have liability exposure based, for example, on:
* principles of agency law: because to the outside world your employee is the company;
* contract law: when your employee make online promises or offers that obligates the company;
* advertising law: when your employee makes unfair comparisons between your product and competing products or services, misrepresents your products, or fails to identify themselves as employees before giving your product a glowing testimonial;
* intellectual property law: when your employee inappropriately shares confidential, or proprietary, company information; or
* defamation: when they disparage customers or competitors.
MANAGING YOUR BUSINESS LIABILITY ON EMPLOYEE SOCIAL MEDIA ACCOUNTS
It’s precisely because of the different types of liability exposures your company can face that it has a strong interest in “managing” those sales conversations the same way they would in old school, face-to-face meetings. But what’s more challenging in the online environment is the fact that unlike old school meetings where memories can fade about who said what, memory chips and infinite cloud storage capacity in the digital world create a permanent record, or evidence that can nail your assets to the wall.
Poorly managed social media accounts are time bombs that explode when you least expect it
There’s no hiding. Instead of merely being an electronic, smoking gun document, a social media account can be a huge, smoking gun, time bomb.
It would therefore make sense to adopt a business social media policy and establish some guidelines for your sales representative to protect your company. But not so fast.
SOCIAL MEDIA POLICIES CAN BE A 2-EDGED SWORD
Believe it or not, there is debate among some legal writers about whether companies should adopt social media policies. (See for example Heather Bussing’s eight reasons why social media policies backfire.)
Part of the debate is driven by concern over the National Labor Relations Act (NLRA) that protects employees (including non-union employees) from being retaliated against by employers for social media conversations regarding working conditions [note: not sales or marketing conversations].
Since using social media for micro marketing by sales professionals is externally focused on sales instead of internally focused on company working conditions, I’m confident that a well drafted social media policy could successfully comply with NLRA prohibitions while at the same time protecting the company’s interest in managing legal liability.
HOW DO YOU SAFELY PROCEED IN MANAGING YOUR COMPANY’S LIABILITY EXPOSURE ON SOCIAL MEDIA?
To manage you company’s potential liability exposure on social media Bussing recommends Jay Sheppard’s two word social media policy of “Be professional” or the Zappos approach, “Be real and use your best judgment.”
Those approaches can work if everyone has the same understanding of what being professional means. But what is “professional” can differ between industries, between professions, between generational cohorts such as Boomers and Gen Ys, and between different ethnic groups. It’s a cultural issue.
It reminds me of a friend of mine who started a public relations firm and was vehemently opposed to having an office dress code. He expected everyone to be “professional.” That worked until one hot summer day an employee reported for duty wearing a midriff baring top that revealed a belly-button piercing and a tattoo. Suddenly, “professionalism” needed more clarification and his first office dress code was born.
For better or worse, policies and guidelines are a way of establishing standards and managing employee expectations. That’s what cultures are all about, a common set of operating principles.
When it comes to creating a cultural baseline, Zappos gets a head start with its rigorous employee selection process, requiring successful candidates to be aligned with the company’s core values from day one. That’s probably why their minimalist social media policy has worked so far. But if your company doesn’t have the same hiring process, you may need to rely more on training and mentoring to successfully build and maintain your business culture.
THE MAGIC ISN’T IN THE POLICY, IT’S THE TRAINING AND MENTORING
Well intentioned, but untrained employees can inadvertently blurt things out that can later come back to haunt them and their employers. That’s why the best way to communicate policies is with guidelines and training. After all, how many employees really read policies?? All too often those policies are written in jaw-breaking language that only the lawyers who wrote them understand.
It’s only through training and mentoring that employees come to learn “what’s in it for me.” And that’s exactly what I focus on when I do communications training for clients about how to reduce writing smoking gun documents and make their business safer.
In the process they discover how they communicate is as important as what they communicate. They also learn that when employees understand why a particular policy exists and how their activities contribute to protecting the company, they take a renewed interest in doing things right. When that happens your policies and guidelines are transformed from roadblocks into road maps. Now that’s magic!
Adopt a reasonable social media policy and then educate your sales professionals on what the policy means and how to use it. Provide appropriate training and mentoring. Such resources are mission critical for establishing and maintaining a common understanding of what’s acceptable when engaging in micro marketing on social media. When done properly it raises awareness without stifling creativity or triggering liability and it gets your marketing message in front of more people who can be helped by your goods and services.
Announcing a new No Nonsense Lawyer website: nononsensegeneralcounsel.com
I’m excited to share with you the newest addition to the No Nonsense family: the No Nonsense General Counsel website.
New website reveals insider secrets of independent general counsel function
Benefits of Legal Leverage®
I felt it was necessary to have a separate website that would provide you with more in-depth information about the powerful business benefits an independent general counsel can provide your business.
Similar to fractional chief financial officers (CFOs) who provide senior level financial services on a part-time, as needed basis, an independent general counsel does the same in the legal arena.
Such services are affordable, high quality, in-house legal services, supplied by experienced and licensed lawyer who can provide your management team with practical, general legal advice about your day-to-day business issues, and can explain in easy to understand English.
Among the insights you’ll discover on the new site, through blog articles and other free resources are:
Timely for business planning
If your business is looking to thrive in today’s economy, you owe it to yourself to check out the powerful information at www.nononsensegeneralcounsel.com. The trend at large companies of controlling legal costs by utilizing more in-house resources has accelerated in the past 18 months.
A 2013 survey of Fortune 1000 general counsels found that a whopping 61% were not satisfied with the rates they pay to their law firms. Its causing them to explore other options, including bringing more work in-house in the areas of licensing, complex commercial contracts, routine litigation, intellectual property prosecution, regulatory and compliance.
According to BTI Consulting Group, general counsels transferred $5.8 billion in outside counsel spend to their internal legal budgets between 2011 and 2012. That is a gigantic number.
If it had gone to the law firms the compound growth rate of the legal market would have been around 5%, instead its actual growth rate was an anemic showing of less than 2%.
That trend should tell you something. It means you too could benefit by handling more of your legal matters “in-house.”
And now, with independent general counsel services, you can afford to do so without breaking your budget.
In honor of the new website, I’ve issued a new expanded, 2nd edition of the Entrepreneur’s Guide to Independent General Counsel Services: The Practical Way to Protect and Grow Your Business. It includes information on how to tell whether you have a critical mass of legal work to justify bringing it in-house and much more. Get your complimentary copy today.
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Hanna Hasl-Kelchner, Esq. , The No Nonsense Lawyer and America’s Legal Advocate for Entrepreneurs is the 2013 ACQ Global Award Winner for US – Leadership Development Advisory Services.
She helps executives, managers and entrepreneurs build their best business by showing you how to leverage the law into a competitive business advantage and translating the law into practical business terms so you can minimize liability and maximize opportunity.
She accomplishes this through training, coaching and independent general counsel services. Hanna has been quoted in leading business publications and appeared on MSNBC, FoxNews, and ABC, CBS, NBC and Fox affiliates nationwide.