Sunday, January 31, 2010

Chart of Union Membership by Sector 2000-2009

In my last post, State of the Unions - EFCA-Lite and the Private Sector Decline, I noted (via NYT) that 2009 was the first time that government union members outnumbered private sector union members. As a follow-up to that post, I present a chart (with table of data) of the number of union members by sector over the first decade of the 21st century:

Year Private Public Total
2000 9,219,000 7,115,000 16,334,000
2001 9,148,000 7,157,000 16,305,000
2002 8,800,000 7,346,000 16,146,000
2003 8,452,000 7,324,000 15,776,000
2004 8,205,000 7,267,000 15,472,000
2005 8,255,000 7,430,000 15,685,000
2006 7,981,000 7,378,000 15,359,000
2007 8,114,000 7,557,000 15,671,000
2008 8,265,000 7,832,000 16,097,000
2009 7,431,000 7,896,000 15,327,000

A few notes:
  • 2009 had the highest number of union members in the government sector (up 10.9% from 2000)
  • 2009 had the lowest number of union members in the private sector (down 19.4% from 2000)
  • 2009 had the lowest total number of union members (down 6.2% from 2000)
Note also that the numbers are all rounded to the nearest 1000.

Friday, January 29, 2010

State of the Unions - EFCA-Lite and the Private Sector Decline

The U.S. Department of Labor Bureau of Labor Statistics recently released the results of a Union Membership Survey. As the New York Times reports:
"For the first time in American history, a majority of union members are government workers rather than private-sector employees."
This is due in large part to the huge decrease in union membership in the private sector in 2009. Fueled largely by huge job losses in construction and manufacturing, private sector union membership shrank from 8.2 million to 7.4 million.

Overall union membership dropped by 771,000. NYT goes on to quote Secretary of Labor Hilda Solis, "This report makes clear why the administration supports the Employee Free Choice Act (EFCA)." But what the heck does EFCA mean?

It used to mean card check, binding arbitration and increased penalties for employers that violate the NLRA. Now? Who knows. In a Boston Globe op-ed, Steve Early outlines labor's "new survival plan," including "EFCA-lite." He describes a plan by an "informal Capitol Hill committee" whereby card check without secret ballot elections is out,
"But the National Labor Relations Board - now one of the slowest moving federal agencies - would be directed to hold expedited elections, thereby reducing opportunities for unlawful tactics designed to thwart union representation."
Early laments the lost opportunity for labor reform and notes that President Obama failed to even mention "employee free choice" in his State of the Union address.

We'll see what the future holds. Every indication is that huge reform like that proposed in the original EFCA is all but dead. But perhaps "EFCA-lite" is on the way...

Image: Secretary of Labor, Hilda Solis - Official Portrait from Department of Labor, public domain image.

Wednesday, January 27, 2010

Naked Economics: Aligning Incentives and Principal-Agent Problem


I'm currently reading Charles Wheelan's Naked Economics. Lawffice Space regulars may recall a series of posts on SuperFreakonomics and its employment law lessons. Tonight, I begin a series of similar posts based on Naked Economics.

The first lesson I will cover from this book is a management classic: the principal-agent problem. The classic example involves a retailer who hires a cashier, or a floor clerk for a set wage, say $8/hour. The employee gets $8/hour no matter how well the business does and therefore has no incentive to make the business succeed. Sure, he'll do just enough to avoid getting fired and maybe even enough to keep the store from going out of business. Obviously, this is still a problem. The store-owner and the employee's incentives do not align.

This problem goes well beyond the store clerk, all the way on up to CEOs of corporations. As Wheelan notes on page 32:
"A study conducted by the consulting firm McKinsey & Company found that something as simple as having a company's directors hold large investments in the company's stock correlates with significantly better company performance."
Why is that? Simple. The incentives are now aligned. The employee has an ownership interest in the business and therefore a financial incentive to see the business succeed.

Of course, stock options for store clerks at small businesses may not be an option. Often, businesses turn instead to a commission model. That should align incentives, right? Well, sort of. Wheelan goes on to explain:
"Your [real estate] agent can list your house for $280,000 and sell it in about twenty minutes. Or she could list it for $320,000 and wait for a buyer who really loves the place. The benefit to you of pricing the house high is huge: $40,000.... Assuming a three percent commission, your agent can make $8,400 for doing virtually nothing or $9,600 for doing many weeks of work."
Wheelan then rhetorically asks, "Which would you choose?" Indeed, partial ownership can only partially align the incentives. Only 100% ownership fully solves the problem. At that point, however, you have no principal-agent problem only because you no longer have any agent at all, it's all principal.

More Naked Economics fun to come!

Monday, January 25, 2010

Super Bowl Sunday, Hangover Monday

The teams are all set for the Super Bowl - We've got the New Orleans Saints vs. the Indianapolis Colts. Did you make Super Bowl party plans with your co-workers yet? Did you buy some squares for your office pool? Get some online trash-talking in with your friends via email or total strangers on ESPN.com? Well STOP IT! You're destroying the U.S. economy! OK, that's a little melodramatic, and I don't want to be a buzzkill (I'm probably just bitter about the Steelers' dismal season), but the Super Bowl seriously does create some problems for employers.

In The Wild, the Innocent, and the Super Bowl Shuffle (appearing via HR Hero, excerpted from Kansas Employment Law Letter), Boyd Byers provides employers with some helpful tips for handling the lost productivity of the Super Bowl. Apparently, a consulting firm estimates that U.S. employers lose $850 million in lost productivity the week before the Super Bowl and another $150 million in "unproductive wages" the day following the Super Bowl.
"This estimate is based on the assumption that the average employee spends 10 minutes a workday talking about the game, planning parties, participating in betting pools, or engaging in other Super Bowl-related distractions."
And then top it off with an additional 1.5 million "sick" days that Monday.

The article advises that employers keep the gambling in check and plan in advance as much as possible. Employees seldom plan hangovers and policy probably prohibits calling in "sick" a week in advance. If employers can get them to plan ahead though, more power to them.

It's not all bad. The article also advocates the "camaraderie" aspect of the whole ordeal. Or, there's always the "make Super Bowl Monday a national holiday" route... good luck with that.

Saturday, January 23, 2010

Roe v. Wade, Abortion, and Pennsylvania Employment Law


Yesterday marked the 37th anniversary of Roe v. Wade. It's more complicated than I think most people realize... there was a trimester framework since morphed into a viability and undue burden determination; and you have to mix together the "penumbras" of a couple of Constitutional amendments. At the end of the day, the long and short of it is that individuals have some right to an abortion.

What does this have to do with employment law? Here in Pennsylvania, the Pennsylvania Human Relations Act (PHRA) provides very specific abortion-based protections for employees:
"It shall be an unlawful discriminatory practice . . . . For any public or private agency . . . [to] impose any burdens in terms of conditions of employment upon, or otherwise discriminate against any applicant . . . or any physician, nurse, staff member, student or employe thereof, on account of the willingness or refusal . . . to perform or participate in, abortion or sterilization by reason of objection thereto on moral, religious or professional grounds, or because of any statement or other manifestation of attitude by such person with respect to abortion or sterilization."
43 P.S. § 955.2. The Act also covers med school and nursing school applicants and contains an exception for health care facilities or clinics, "operated exclusively for the performance of abortion or sterilization or directly related procedures."

Another shining example of the importance of knowing the coverage provided by state laws. There may be some abortion-related employment protection under federal law, specifically under Third Circuit precedent here in Pennsylvania... that's another topic for another day though.

Image: Justice Blackmun, Official Photo - Public domain as a work of the United States Federal Government.

Thursday, January 21, 2010

Free Speech for Corporations and Unions

The Supreme Court struck down campaign finance laws and overruled some fairly recent precedent today in Citizens United v. FEC. The case represents a broad application of free speech rights to corporations with probable applicability to unions. In short, the Court held that:
"Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an 'electioneering communication' or for speech expressly advocating the election or defeat of a candidate . . . . The Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether."
In other words: the ban violates the First Amendment, the disclosure and disclaimer requirements are OK. Some people loved it; Some people hated it; The actual opinions (.pdf) span 183 pages so I suspect most people haven't even read it. Sadly, I am in the last category at the moment.

As Lawffice Space is primarily a labor and employment law blog, this case is a little beyond my ordinary scope. Because it is getting such huge media attention, and its broad implications for corporations and unions, I figured it was worth passing along to my readers.

For SCOTUS nerds, there is some buzz about Justice Stevens having trouble reading from his dissent from the bench. Whatever trouble he had speaking, he more than made up for in writing... his dissent is ninety pages!

Lawffice Note: Starting with this entry, each post will include the Facebook Share button. If you see something you like, pass it on to all of your Facebook friends with one click. I have also added the Facebook Fan Widget on the sidebar to the right. If you haven't already become a fan just click on the widget (or click here).

Tuesday, January 19, 2010

Arbitrability of Arbitrability Determination Under Arbitration Act Hits SCOTUS

What? That title's not clear enough for you? Let me try again, the Supreme Court will determine whether an arbitration clause requiring an arbitrator to determine whether an arbitration agreement is unconscionable is enforceable. OK, still a little confusing.

The case is Rent-a-Center v. Jackson. Let's take it step by step:
  1. An employee filed a racial discrimination and retaliation claim against his employer;
  2. As a condition of employment, the employee signed an arbitration agreement that provided that discrimination claims would be settled through arbitration;
  3. The agreement also specifically provided that
    "The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable;"
  4. The employee argued in Federal District Court that the agreement was unconscionable (which would render it unenforceable);
  5. The District Court dismissed the employee's case and compelled arbitration without determining whether the agreement was unconscionable;
  6. The Ninth Circuit reversed (opinion .pdf), holding that
    "a court must decide the threshold question of arbitrability when a plaintiff challenges an arbitration agreement as unconscionable;"
  7. The Supreme Court granted certiorari (decided they'd hear the case).
Per SCOTUSBlog, the issue is stated as
"Whether the district court is in all cases required to determine claims that an arbitration agreement subject to the Federal Arbitration Act ('FAA') is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision."
I'll let you know when they issue an opinion!

BREAKING NEWS: Ross Runkel at LawMemo reports that the Supreme Court has fast tracked this case for a hearing this term, possibly in April.

Monday, January 18, 2010

Martin Luther King Jr. Day

By Sharon R. Miles

Martin Luther King Jr. Day is a federal holiday celebrated annually, honoring the late Reverend, Dr. Martin Luther King, Junior. The holiday is observed each January on the third Monday, near the day of his actual birth, January 15. Approximately one third of all employers grant their employees leave on Martin Luther King Jr. Day.

Although King was assassinated in 1968, the holiday was not officially introduced until 1983. The campaign to honor this leader in nonviolent civil rights activism started not long after his death. Michigan Representative, John Conyers introduced the bill to Congress that would make King’s birthday a federal holiday. The bill was voted on by the House of Representatives in 1979; however it lacked the number of votes needed to pass by five. Opponents believed a paid holiday for government employees would be too pricey and many believed the holiday would be unprecedented given that King never held a public office, unlike those honored with a federal holiday before him.

The King Center turned to the general public and corporate and artistic communities for support in moving forward with a day to honor King. It was on November 2, 1983 when President, Ronald Reagan signed the bill creating the federal holiday. The holiday was officially observed in 1986, but only celebrated in the District of Columbia and 27 states. Other states refused to accept the holiday. For example, in the state of Arizona that same year, a holiday had been declared by Governor Bruce Babbitt after a bill to create the holiday failed to pass in the Arizona legislature. In 1987, Governor Evan Mecham withdrew the holiday, believing that it was illegally established. New legislation finally passed in 1989, but opponents were successful in mandating a ballot initiative which resulted in a rejection by Arizona voters in 1990. In response, rap group, Public Enemy created their song, “By The Time I Get to Arizona,” helping bring attention to the issue. The holiday was finally approved by Arizona voters in 1992.

Today, Martin Luther King Jr. Day is recognized nationwide.

The aforementioned Public Enemy video. WARNING: The video generated some controversy for its apparent advocation of the assassination of Gov. Mecham. Lawffice Space does not condone violence.



Public Enemy - By the Time I Get to Arizona

Thursday, January 14, 2010

Can Conan Compete in Pennsylvania?


Great news for employment law bloggers! It seems the hottest topic in mainstream media is Conan O'Brien's contract. When was the last time you saw so many people concerned about one man's employment contract? Yet there it is, in the New York Times: Fox Woos O'Brien but Pact is a Hurdle.

This opportunity has not been lost on employment law bloggers. On Gruntled Employees, Jay Shepherd writes, Why Fox can hire Conan as Soon as he Leaves NBC. Basically, there's a lot of speculation that Conan has a noncompete clause (or covenant not to compete) in his contract. Mr. Shepherd points out that a clause would be unenforceable in both California where the show is taped and New York where NBC is headquartered.

On the Delaware Employment Law Blog, William Bowser explains, Why NBC Should Have Used Delaware Law in Conan O'Brien's Employment Contract. He points out that if NBC breached the contract, then the noncompete would be unenforceable. The new NYT piece above, however, reports that the contract did not contain a time restriction so NBC might be OK. Mr. Bowser also notes that had NBC used choice of law and choice of forum clauses specifying Delaware law and courts, then they would be in a much better position to enforce a noncompete.

Well, I'm no dummy and I want in on this Conan O'Brien action. That's why I'm shamelessly ripping off Mr. Bowser's idea but discussing Pennsylvania's treatment of noncompetes. Why PA? Because I practice there. As the Pennsylvania Supreme Court explained in 2002:
"In Pennsylvania, restrictive covenants are enforceable if they are incident to an employment relationship between the parties; the restrictions imposed by the covenant are reasonably necessary for the protection of the employer; and the restrictions imposed are reasonably limited in duration and geographic extent. [Analysis]requires the application of a balancing test whereby the court balances the employer's protectible business interests against the interest of the employee in earning a living in his or her chosen profession, trade or occupation, and then balances the result against the interest of the public."
Hess v. Gebhard & Co., Inc., 808 A.2d 912, 917 (Pa. 2002). This language was also quoted and relied upon by the Superior Court just six months ago in J.C. Ehrlich Co., Inc. v. Martin, 979 A.2d 862 (Pa.Super. 2009).

OK, this was just a fun way to touch on the basics of Pennsylvania noncompetes with a tenuous tie-in to a popular story. I'm gonna go out on a limb here and assume Conan's contract doesn't fall under Pennsylvania law. But if anything ever goes wrong with Danny DeVito's contract for It's Always Sunny in Philadelphia...

Image: Believe it or not, the image is in the public domain as a work of the U.S. Federal Government. It was taken by a State Department employee at the U.S. embassy in Helsinki.

Wednesday, January 13, 2010

What is Cat's Paw?

A brief entry tonight to provide a quick summary of the so-called "cat's paw" theory of liability and the basis for the colorful title. The name comes from French poet Jean de La Fontaine's fable, The Monkey and the Cat <- full text of the fable written in verse.

As the Tenth Circuit explained in EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476 (2006):
"The 'cat's paw' doctrine derives its name from a fable, made famous by La Fontaine, in which a monkey convinces an unwitting cat to pull chestnuts from a hot fire. See Fables of La Fontaine 344 (Walter Thornbury trans., Chartwell Books 1984). As the cat scoops the chestnuts from the fire one by one, burning his paw in the process, the monkey eagerly gobbles them up, leaving none left for the cat. Id. Today the term 'cat's-paw' refers to 'one used by another to accomplish his purposes.' Webster's Third New International Dictionary Unabridged 354 (2002). In the employment discrimination context, 'cat's paw' refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.1998)."
That's the "Cat's Paw" theory and the origin of its name in a nutshell. Different Circuits handle the situation in different ways, but that's another topic for another day.

Monday, January 11, 2010

Discrimination by Employers not Covered by Statute

Whether an employer is covered under a discrimination statute is often a factor of the number of people it employs. I recently covered this in Know Thine Coverage-Number of Employees Lower than you Think. In that post, I warned that "states have recognized a cause of action for wrongful discharge based on discrimination in violation of public policy - even where the employer is not covered by discrimination statutes!"

This past summer, the Pennsylvania Supreme Court rejected this theory under Pennsylvania state law. In Weaver v. Harpster, 975 A.2d 555 (Pa. 2009), the Court held that neither the Pennsylvania Human Relations Act (PHRA) nor the Pennsylvania Constitution's Equal Rights Amendment provided a public policy exception to the at-will employment doctrine where the employer had too few employees to be covered by PHRA.

Under the at-will employment doctrine, employers can generally terminate an employee for any or no reason. Employees may bring a cause of action where the termination violates a clear mandate of public policy. This is very much a factor of state law (both the at-will doctrine and the public policy exceptions).

Though the Pennsylvania Supreme Court declined to acknowledge such a cause of action, other states have. Justice Todd, in dissent, was kind enough to provide us with a rundown of some of these decisions from other states:
"[F]inding of a cause of action for those individuals who fall outside of the coverage of the Human Relations Act is entirely consonant with the conclusions reached by courts which have recognized a claim for wrongful discharge based upon a violation of public policy expressed in a state constitution, even when the state legislature has enacted an anti-discrimination statute which limits the size of the employer covered by the statute. See, e.g., Molesworth v. Brandon, 341 Md. 621, 672 A.2d 608 (1996) (upholding Maryland's common law cause of action for wrongful discharge of an employee based on sex discrimination against an employer with less than 15 employees where public policy against sex discrimination was evidenced by constitutional amendment, statutes, and executive order); accord Thurdin v. SEI Boston, LLC, 452 Mass. 436, 895 N.E.2d 446 (2008) (concluding employee may bring claim for sex discrimination under state equal rights act where employer was not covered by Massachusetts' state employment discrimination law); Collins v. Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653 (1995) (recognizing common law tort claim for wrongful discharge in violation of Ohio public policy based upon statutory and judicial sources); Williamson v. Greene, 200 W.Va. 421, 490 S.E.2d 23 (1997) (determining common law claim for retaliatory discharge based on sex discrimination in light of West Virginia's public policy found in state human relations act); Roberts v. Dudley, 140 Wash.2d 58, 993 P.2d 901 (2000) (finding claim for wrongful discharge in violation of Washington's public policy against gender discrimination based upon statutes and judicial decisions); but see Jarman v. Deason, 173 N.C.App. 297, 618 S.E.2d 776 (2005) (concluding no claim of wrongful discharge for age discrimination in North Carolina relying on legislative prerogative but in absence of constitutional basis for public policy); Burton v. Exam Ctr. Indus. & Gen. Med. Clinic, Inc., 994 P.2d 1261 (Utah 2000) (same)."
Thanks Justice Todd! That's a pretty nice list for anyone researching the topic.

Thursday, January 7, 2010

Chart of EEOC Charges 1997-2009

The EEOC released its 2009 charge statistics this week. Loyal readers may recall that I plotted last year's stats in an earlier post. Well, I produced an updated chart including the FY 2009 data:



Overall, it looks like there was a leveling off this past year after a huge rise in FY 2008. I made a few predictions in my post from last year. Let's see how I did:
  • First, as I already acknowledged (and attempted to justify), age bias charges were actually down this year (I predicted they'd keep rising).
  • Second, I said this would be a record year... it's the second highest total ever (still 12.7% higher than FY 2007). I was close... wrong... but close.
  • Finally, I said we'd see a surge in disability charges from the enactment of the ADA Amendments Act... at least one of my predictions came through! While the other categories were fairly flat, disability charges were up over 10%.
We'll see what FY 2010 has in store (I think I'll stay away from the predictions for now!).

Note: Stephanie Thomas created her own chart of EEOC data using a different format. If that name sounds familiar, she provided Lawffice Space with a summary of her expert statistical analysis in an age discrimination suit.

Wednesday, January 6, 2010

Second Amendment Unemployment Compensation


This is another in a series of posts on First Amendment Unemployment Compensation. The Supreme Court has held that an employee terminated by a private employer for refusing to work on Saturdays (for religious observance) can not be denied unemployment compensation (UC) under the First Amendment.

A recent case applied the same rationale to employees terminated for speech. Essentially, the First Amendment is applied to private employers in UC matters. I warned readers that I would "have some fun with future applications of this legal framework." As luck would have it, Gilbert Arenas has supplied me with the perfect backdrop for one such application!

The National Law Journal (NLJ) writes on Gilbert Arenas, guns, and the Supreme Court. Arenas, a star NBA player for the Washington Wizards, brought some handguns to work in D.C. The NLJ article discusses the Second Amendment and the Arenas situation. A recent Supreme Court case, D.C. v. Heller, was heralded as a landmark Second Amendment decision. Heller established a Second Amendment right to possess a firearm for self-protection in the home in D.C.

Let's go a step beyond Heller; just for the sake of argument let's assume that the Second Amendment also protects a right to possess firearms for self-protection outside of the home. Now, let's say an employee violates his private employer's ban on guns in the workplace and gets terminated as a result.

Under the First Amendment unemployment compensation line of cases, the Second Amendment would prohibit states from denying that individual UC, right? Just as an individual cannot be denied UC when terminated for speech or religious observance, surely an individual cannot be denied UC when terminated for exercising the right to bear arms.

Now, it took over 200 years for the Supreme Court to recognize the most basic right to possess firearms in the home. That right hasn't even been recognized as restricting the States (though an upcoming Supreme Court case may apply the Second Amendment to the states). I don't expect to see a UC application for the Second Amendment happening any time soon. But I think it's possible somewhere down the line.

Image: Handgun Collection by Joshuashearn licensed under Creative Commons Attribution ShareAlike 3.0 License.

Monday, January 4, 2010

Know Thine Coverage - Number of Employees Lower than you Think

Tonight's entry covers a lesson that's elementary for any employment law attorney. It might not be so obvious to small business owners though. Know thine coverage. Of particular importance to small business owners: know the number of employees required for coverage under the laws where you operate.

The big federal laws are fairly well known: Title VII covering race, color, religion, sex, or national origin; Americans with Disabilities Act (ADA); and the Age Discrimination in Employment Act (ADEA). Generally, the ADA and Title VII apply to employers with 15 or more employees. The ADEA, however, applies to employers with 20 or more employees.

I once ran into a business owner who, upon hearing that I was an employment attorney, said, "You mean like discrimination laws? I only have eight employees so they don't apply to me." I hated to break it to him but he needed to check his state and local laws (he operated in Georgia). I practice in Pennsylvania. The Pennsylvania Human Relations Act covers any person employing four or more persons!

There are also numerous local ordinances addressing discrimination. Such ordinances may further decrease the number of employees necessary for coverage (whether a municipality has such authority depends on a variety of factors ranging from state law to state constitutions to municipal charters) .

Still not covered by any federal, state, or local law? Think you're safe? Not so fast! I'll post more on this in a separate entry but numerous states have recognized a cause of action for wrongful discharge based on discrimination in violation of public policy - even where the employer is not covered by discrimination statutes!

I wish there were a magic number I could tell you but the truth is coverage varies across states and municipalities. As Title VII and the ADEA demonstrate, the number may vary based on the protected characteristic. Maybe it's not a statute at all but your state's common law. Know thine coverage.

Saturday, January 2, 2010

Sexual Orientation in Health Care Bill

In a recent blog entry, John Stossel and his mustache point to interesting provisions in the Senate health care bill:
"The Senate bill would award billions of dollars to schools that train medical-service providers.

'(P)riority' for federal dollars is to be given only to those institutions offering 'preferential' admissions to underrepresented minorities (according to race, national origin, sex, sexual orientation, and religion, depending on which section of the bill you look at)."
(Parenthetical in original, emphasis added). As a libertarian advocate, Stossel uses this provision to decry what he sees as "Legal Discrimination."

In Lawffice Space, an objective employment law blog, I'm using this provision for another reason: to highlight the inclusion of sexual orientation as foreshadowing passage of the Employment Non-Discrimination Act (ENDA). ENDA would generally prohibit employment discrimination on the basis of sexual orientation (and possibly gender identity, but that's another matter).

Admittedly, the health care legislation is thousands of pages and you can only read so much in to some minor provisions buried in there. I do think, however, it's noteworthy to see legislators lumping in sexual orientation with the Title VII-protected classes.

Friday, January 1, 2010

New Year's Football and Employment Law: Mike Leach and Texas Tech

New Year's Day is a great day for college football bowl games. And, of course, every day is a great day for employment law. Thankfully, Texas Tech and Mike Leach have given me an opportunity to combine the two!

If you haven't heard, Texas Tech fired head football coach Mike Leach on December 30, 2009 for allegedly shutting a player with a concussion in some kind of "shed" and then separately in an "electrical closet." This one has all kinds of drama. First, the player in question is Adam James, the son of ESPN announcer Craig James.

Then, Leach's lawyer took us on a video tour of the so-called "shed" and "electrical closet:"



Not to be outdone, Adam James has his own video, "from the closet," which has drawn comparisons to the Blair Witch Project:



Does it get any better? Actually, it does. Reports indicate that a clause in Leach's contract provided for Texas Tech to pay him $800,000 if he had been employed for just one more day.

Texas Tech originally suspended Mike Leach prior to terminating him. In response, Leach filed for a temporary injunction in an effort to coach at the Alamo Bowl on January 2nd. A copy of the Motion is available here (.pdf) (via Above the Law). Obviously, the motion is irrelevant now but it provides some insight into the future dispute. It includes a disciplinary clause from Leach's contract that will likely be at issue, as well as some arguments we're likely to hear from Leach. Specifically, that he complied with his contract and was denied due process prior to his termination.

Nothing like a media soap opera to kick off the new year! I'm looking forward to seeing how this one plays out.