As the IRS continues terminating high level employees following Teagate, or the targeting of Tea Party affiliated and similar organizations that appeared to be political in nature but sought the tax advantages of being designated a 501c nonprofit, I have to wonder about the purpose of these congressional hearings.  

I understand the problematic issues surrounding auditing a specific segment of the business population (why didn't they simply reject the applications or request further information if the IRS felt the organizations were purposefully misclassifying themselves, rather than approve the organizations and then subject them to audits?), but I am failing to understand the purpose of the congressional hearings.

Are these hearings truly to get to the bottom of this scandal?  If that is the purpose, this is certainly atypical behavior.  After all, when employees that make moral and ethical mishaps are terminated, usually someone in human resources conducts an investigation prior to the termination in order to find out the details.  If the IRS situation was deemed too high profile to have an internal human resources employee conduct the investigation, why not hire an external neutral to investigate the facts?  Indeed, this is what Rand Paul has suggested as well.  While I am rarely inclined to agree with anything Mr. Paul suggests, he has a point here (albeit a little late because now the damage from the congressional hearing has been done).  The neutrality of the investigator would certainly elicit more cooperation and forthrightness from the accused.  But a congressional hearing?

Should we really expect people to be open and willing to share when faced with a bunch of grumpy men with political agendas yelling and demeaning them?  Should we really be surprised that Lois Lerner pleaded the 5th and refused to respond to questions?  When Congress truly wants to get to the bottom of a scandal, they will start making sound decisions like pursuing investigations instead of self-gratifying public verbal executions.   After all, isn't being terminated and having all of the major media outlets telling the world about their shameful behavior punishment enough?  

Just as the IRS could have found a better way to deal with the Tea Party issue, Congress needs to find a better way to deal with the aftermath.  Do unto others...

Professor Kendall D. Isaac
Appalachian School of Law

This is a good video on workplace bullying.  I agree with most of what it states, except for its belief that mediation is inappropriate for dealing with bullying. While facilitative or evaluative mediators might not be apropos, due to their general focus more on resolution of the dispute rather than its origin, transformative mediators can very competently assist with workplace bullying disputes due to their focus on not just resolving the dispute but also healing the relationship between the parties in the process.

I will be speaking on this topic at the upcoming SHRM Conference. Here is the information:

Appalachian School of Law Professor and Director of Special Programs Kendall D. Isaac will be speaking at the 2013 Society for Human Resource Management Annual Conference and Exposition June 17th from 02:00 PM - 03:15 PM at McCormick Place Convention Center, Chicago. 
 
With an impressive keynote lineup, hundreds of sessions, the world’s largest HR marketplace, and the iconic Chicago skyline as a backdrop, the SHRM 2013 Annual Conference & Exposition will give you everything you need to be more focused, energized and successful. Make your plans now to join us and ensure that you are faster, stronger, and bolder.

By attending Professor Isaac's "Using Alternative Dispute Resolution as a Remedy for Workplace Bullying," You will learn how to deal with bullying claims by infusing proper alternative dispute resolution (ADR) techniques into your work environment. Workplace bullying is on the rise. While federal and state laws protect individuals from harassment and discrimination based upon age, race, sex, religious preference, disability, and national origin, the law is fairly silent relative to direct protection against workplace bullying. Without clear legal protections, what can be done about bullying? How can ADR mechanisms help remedy a problem that seems to have expanded beyond the control of the traditional HR department? You will learn practical ways you can develop processes to better address these bullying and harassment claims as well as dispute resolution best practices you can implement in your
organization.

http://annual.shrm.org/sessionplanner/session/4725

To all the mothers who lost their jobs because they took time off work to care for their children, I salute you. 

To all the mothers who fought tooth and nail to be treated as equals without sacrificing self, I salute you.

To all the mothers who broke the glass ceiling, I salute you.  

To all the mothers that cared little about the glass ceiling, but simply put in a hard days work for a fair wage, I salute you.

To all the mothers who have taken on the role of the "voice of reason" and mediated countless disputes between co-workers, I salute you.

To all the mothers who had to endure sexual harassment on the job and had the courage to endure and even fight back in midst of a nightmare, I salute you.

To all the mothers who were forced to work today, on your day, and sacrificed rest and relaxation for the benefit of remaining employed, I salute you.

To all the mothers that took the day off to celebrate self, even if no one else cared enough to celebrate you, I salute you.

To all the mothers that allowed their nurturing nature to extend beyond their birth children and their parents and to be encompassing of their co-workers as well, I salute you.  

On this day, your day, if no one else has acknowledged your sacrifices, your sweat, your unwavering love, your 12 hours of labor, your loyalty, and your commitment, know that I, for one, salute you.

Professor Kendall D. Isaac
Appalachian School of Law

Although not everyone is cheering (it seems the move is not popular among some Democrats, labor groups and employee/claimant lawyers), many in Tennessee and outside of the state are applauding Governor Haslam's signing of the WC bill on Thursday.  This new law moves TN from a tort and court based workers' compensation system to an administrative process.  

Previously, after an administrative agency made a decision on claim allowance, an employer or employee contesting the decision tended to take the case directly to court.  Indeed, decisions on the case - after the initial claim decision - were handled in the highly contentious courtrooms instead of the less formal and much more collegial administrative hearing rooms (in Ohio, we would snicker at attorneys unfamiliar with the hearing process who would yell out "Objection!" or "Hearsay your Honor!" in the midst of a hearing before a hearing officer.  Attorneys on both sides of the fence were also very polite to each other, an oddity in many courtrooms).  The court process also lacked extremely knowledgable decision-makers.  After all, even the best judge cannot be expected to know about every area of the law, let alone a niche area like workers' compensation.  However, hearing officers in the workers' compensation world quickly become experts in the subject matter and are presumably just as neutral in their decisions as judges.  

Another promising factor seems to be that this change will add more meaning to the mediation process.  In the current system, mandated mediation before litigation ensued was rendered virtually meaningless because parties simply wanted their "day in court" regardless of whether a mediated settlement might have been more advantageous.  Creating a more administrative-focused process, while of course not eliminating the potential for appeals to court, can and likely will add meaning to the mediations.  It should develop back into what it should have always been, an important part of the workers' compensation claim dispute resolution process, rather than a stepping stone to the courthouse.  

Most notably, the new law has built in a process where unrepresented claimants can seek assistance from an ombudsman.  I, for one, applaud this effort to provide added assistance to those claimants that either cannot find attorney assistance or choose to proceed pro se to keep the money needed to pay for their livelihood in their own pockets instead of their lawyer's bank account (don't worry, I am sure there will always be a need for lawyers, especially in highly contested cases).  

Change is hard.  But after some time, change becomes accepted and eventually the new normal.  Tennesseans will certainly adapt and perhaps even grow to appreciate the new system.  Now if we can only convince the last two states caught in the dark ages of the employer-employee contentious courtroom battlefield, namely Louisiana and Alabama, to join the rest of the party, the cycle of life will be complete.  

Professor Kendall D. Isaac
Appalachian School of Law

The AFA is on the clock (perhaps I still have the NFL draft on my mind, Who Dey!).  U.S. Representative Hank Johnson introduced the bill to the House yesterday, with Senator Al Franken introducing a companion bill to the Senate.  The bill seeks to restore the rights of consumers and employees to opt for arbitration post-dispute rather than be mandated to arbitrate by signing over their rights before a dispute has even occurred. 

What the Arbitration Fairness Act Does:
 •  Restores the original intent of the FAA by clarifying the scope of its application.
•   Amends the FAA by adding a new chapter invalidating agreements that require the
arbitration of employment, consumer, or civil rights disputes made before the dispute arises.
•   Restores the rights of workers and consumers to seek justice in our courts.
•   Ensures transparency in civil litigation.
•   Protects the integrity of the Civil Rights Act, the Equal Pay Act, the Americans
with Disabilities Act, and the Age Discrimination in Employment Act, among
others. 

Following fairly recent pro-arbitration Supreme Court decisions such as AT&T Mobility v. Concepcion (SCOTUS consumer case) and Rent-A-Center v. Jackson (SCOTUS employment case), it will certainly take an act of Congress to steer the FAA in the right direction. 

I think arbitration is a positive form of dispute resolution, but it should be chosen by the parties, not coerced upon a weaker party lacking adequate bargaining power to avoid it.  after all, what is the alternative to buying a cell phone with a contract requiring arbitration?  Messenger pigeon?  What is the alternative to accepting a job that mandates arbitration of employment disputes?  Remain unemployed and watch the Kardashians until another job offer surfaces?  Consumers and employees are truly handcuffed and this is just the type of advocacy elected officials should be engaging in. 

Disclaimer:  Democrats have proposed these bills, so do not be surprised if Republicans shoot them down (a la gun control, another much needed change in the law).

Professor Kendall D. Isaac
Appalachian School of Law

While this blog is dedicated primarily to encouraging dignity and respect in the workplace, this does not mean that employees should only treat their fellow co-workers well.  Employees should extend an equivalent level of dignity and respect towards customers and others that they come in contact with during the work day.  This is especially true for those employees who work in jobs that "should" require a high level of compassion. 

For example, lets consider the Amanda Berry scenario.  Amanda and three other women endured what I am sure was unthinkable horrors and trauma while being held captive and missing for ten (10) long years.  Amanda courageously escaped and ran to a neighbor's house to call 911 (read the story and listen to the call here).  As she repeatedly pleads for a police officer to be sent right away, the 911 operator appears to be annoyed and has a tone of frustration with Amanda as she tells her "again" that a squad car will be on its way.  Instead of expressing words of empathy or even staying on the line a little longer to comfort Amanda, she ends the call.  Fortunately, Amanda was not recaptured due to the seemingly lackluster response of the 911 operator. 

Readers, if your job does not bring out the passion and the best in you, find a new job.  If you get annoyed with the customers and find it hard to treat them with the utmost courtesy and care, you are likely burned out.  That is ok, it happens.  But do not stay in that job just to collect a paycheck.  Move on.  Let someone with a passion for the work take your place and find a new challenge that will invigorate you to do your very best work and be your very best person. 

Professor Kendall D. Isaac
Appalachian School of Law

Normally I am the first person to say "negotiate and mediate, don't litigate!"  I know how destructive litigation can be emotionally and financially.  However, there are certain times when litigation is the best option.  There are times when a person or entity needs to stand on principle and fight the good fight regardless of the whether they think they have a great chance to succeed in the end.  This is one of those times.

You likely recall the story about the South Carolina teacher that faced discipline for stomping on the American flag repeatedly to the horror of his English students.  When this first occurred, the consensus opinion seemed to be that the teacher would, or should, be fired.  Not surprisingly, the teacher lawyered up and threatened to sue the school.  More surprisingly, the school decided that they would rather settle than litigate the matter.  This is especially surprising because normally public entities are the least afraid to litigate when they usually do not have to worry about exorbitant legal fees to fight the lawsuit.  After all, unlike private corporations that have to hire expensive attorneys to defend themselves, tax dollars pay the salaries of the government attorneys that defend these public entities. 

However, the school decided to avoid litigation and settle this one.  The settlement is favorable to the plaintiff.  The teacher gets paid for the remainder of the school year (he had been on leave since January 2013), gets an additional $85,000, AND gets his attorney fees of $32,000 paid.  The payment of the attorney fees is perhaps the most surprising given the fact that defendants rarely want to pay attorney fees when it is uncertain how the case will end  and whether attorney fees will be required to be paid if the case were litigated fully and tried before a judge and/or jury.  The school decided it was wise to take the path of least resistance and settle.  Ok, that is fine, but what is possibly at stake?

Will this new level of freedom in the classroom now allow History teachers to use the "N" word in reference to African American students?  After all, the word does have historical significance.  Will this new level of freedom in the classroom now allow Sex Education teachers to do a live demonstration on how to put on a condom?  After all, safe sex and learning through skills training and hands-on application is very significant to fostering a bountiful learning environment.  Where will we draw the line? 

The untenured, non-unionized English teacher should have verbally articulated his point.  An actual demonstration was unnecessary.  And now, because of this settlement, an already gray area between acceptable and non-acceptable classroom behavior has been further blurred.  Not every case should settle.  If they did, we would not have a Plessy v. Ferguson, a Loving v. Virginia, or a Roe v. Wade.  Settlement, when apropos, is fantastic.  But when a case settles that should not, the end result is countless losers and perhaps only one winner.  Congratulations Mr. Compton, you win. 

Professor Kendall D. Isaac
Appalachian School of Law

There has been no shortage of discussion and concern relative to workplace bullying.  Indeed, there are numerous websites, statute proposals, and scholarly articles aimed squarely at this issue (perhaps the most popular site being the Workplace Bullying Institute).  Rightfully, more attention is placed towards the issue of schoolyard bullying due to the negative effect on the minor victims.  However, my concern centers around what happens to these bullies after they graduate from high school?

In my not-so-scientific analysis, these schoolyard bullies become workplace bullies (note however that there is psychologist support for the premise that bullying is a learned behavior likely developed in the formative years-and therefore capable of correction with proper guidance and counseling).  This is especially true for those bullies that received little to no corrective intervention when they were caught bullying as minors. 

Why am I bringing up this issue?  In the past week, we have seen a couple of instances where bullying behavior has occurred and received widespread attention.  One incident on a soccer field resulted in the death of a referee.  Another incident simply resulted in a student being pushed in a pool but nonetheless underscores that this situation is happening with uncomfortable regularity.  School administrators, parents, and even prosecutors need to take heavy-handed action against bullies.  Failure to do so impacts not just the lives of the immediate victim, but perhaps also future victims such as spouses, children, co-workers and neighbors.  To read my most recent article on the topic, check out the Scholarship link on this site. 

Professor Kendall D. Isaac
Appalachian School of Law

Here we go again.  Ohio seems to be next in line (again) for the Republican attack on unions.  A Bill is currently being proposed to make Ohio the 25th state to transform into a right-to-work state.  

You might recall that Republican Governor Kasich tried this a couple of years ago with SB 5.  I previously blogged on the topic here and here.  Despite the fact that the voting citizens voted it down, it seems a renewed and tweaked effort is back.  I am sure another major battle is on the horizon.  Stay tuned...

Over the past three to four years, there has been substantial activity in the world of professional sports relative to collective bargaining agreement (CBA) negotiations.  We recently saw the National Basketball Association (NBA) and National Hockey League (NHL) cancel a portion of its 2011-12 and 2012-13 season respectively due to stalled negotiations.  In 2011, we saw the National Football League (NFL) lockout its players for a four-month span due to stalled negotiations, which resulted in the players decertifying their union and filing suit against the league.  At the end of 2011, we also saw Major League Baseball (MLB) narrowly avoid a similar fate when it was able to renegotiate its CBA.  Indeed, even Major League Soccer (MLS) continued to work through the expiration of its CBA while navigating through heated discussions in 2010.  The past three years have been extremely active in professional sports negotiations.

In the "Scholarship" section of this website you will find the full article.  This article begins by briefly looking at the history of collective bargaining agreements and the impact on employees and employment law.  It then explores the employment rights of the professional athlete in particular and compares and contrasts the labor disputes that each of the five major professional sports organizations have undergone in recent years. 

It should be noted that the focus is on the interest negotiations that take place at the expiration of a CBA, as opposed to the grievance negotiations that occur in the midst of an existing CBA.  This is because a current CBA provides ample negotiation and arbitration options for a player engaged in a singular dispute.  However, the best interests of the owners and players alike are in jeopardy as a CBA nears the end of its term, and a new agreement to govern the future relationship between the parties requires negotiation.  There is also no discussion on the Sherman Act and the impact of antitrust law on these negotiations, as these topics have been discussed at length in other scholarly papers. 

The focus is specifically on how these leagues negotiate at the most critical time for the owners, players, and fans alike—the expiration of a CBA.  Currently, the possibility of strikes, lockouts, and cancelled games or seasons looms unless a new agreement can be timely reached.  In the end, it is the hope of this author that the readers of this paper will develop an appreciation for the intricacies involved in these complex negotiations and notice trends that could lead to the best practices for future negotiations of CBAs.