To taking the high road and not burning bridges…

Conan O’Brien has every right to flat out pissed at NBC. They kept him tethered to his 12:35 a.m. slot for five years by promising him The Tonight Show, and then pulled the plug after a short seven months because of their own programming ineptitude. The following is Conan’s witty, yet graceful, response to his bosses at NBC (via MSNBC.com):

People of Earth:

In the last few days, I’ve been getting a lot of sympathy calls, and I want to start by making it clear that no one should waste a second feeling sorry for me. For 17 years, I’ve been getting paid to do what I love most and, in a world with real problems, I’ve been absurdly lucky. That said, I’ve been suddenly put in a very public predicament and my bosses are demanding an immediate decision.

Six years ago, I signed a contract with NBC to take over The Tonight Show in June of 2009. Like a lot of us, I grew up watching Johnny Carson every night and the chance to one day sit in that chair has meant everything to me. I worked long and hard to get that opportunity, passed up far more lucrative offers, and since 2004 I have spent literally hundreds of hours thinking of ways to extend the franchise long into the future. It was my mistaken belief that, like my predecessor, I would have the benefit of some time and, just as important, some degree of ratings support from the prime-time schedule. Building a lasting audience at 11:30 is impossible without both.

But sadly, we were never given that chance. After only seven months, with my Tonight Show in its infancy, NBC has decided to react to their terrible difficulties in prime-time by making a change in their long-established late night schedule.

Last Thursday, NBC executives told me they intended to move the Tonight Show to 12:05 to accommodate the Jay Leno Show at 11:35. For 60 years the Tonight Show has aired immediately following the late local news. I sincerely believe that delaying the Tonight Show into the next day to accommodate another comedy program will seriously damage what I consider to be the greatest franchise in the history of broadcasting. The Tonight Show at 12:05 simply isn’t the Tonight Show. Also, if I accept this move I will be knocking the Late Night show, which I inherited from David Letterman and passed on to Jimmy Fallon, out of its long-held time slot. That would hurt the other NBC franchise that I love, and it would be unfair to Jimmy.

So it has come to this: I cannot express in words how much I enjoy hosting this program and what an enormous personal disappointment it is for me to consider losing it. My staff and I have worked unbelievably hard and we are very proud of our contribution to the legacy of The Tonight Show. But I cannot participate in what I honestly believe is its destruction. Some people will make the argument that with DVRs and the Internet a time slot doesn’t matter. But with the Tonight Show, I believe nothing could matter more.

There has been speculation about my going to another network but, to set the record straight, I currently have no other offer and honestly have no idea what happens next. My hope is that NBC and I can resolve this quickly so that my staff, crew, and I can do a show we can be proud of, for a company that values our work.

Have a great day and, for the record, I am truly sorry about my hair; it’s always been that way.

Yours,

Conan

Do you think NBC will be more or less likely to work with Conan to amicably resolve this dispute because of how he is handling himself? Conan is much better served by issuing this respectful, witty, yet pointed statement, than having his lawyers (and trust me, he has lawyers advising him every step of the way) threaten to unleash unholy hell upon NBC. Kudos for Conan for taking the high road and explaining why he is making his decision without unnecessarily skewering the corporate executives whom he must believe screwed him.

Employees leave businesses each and every day, yet many believe that it is acceptable to burn bridges as they run from one employer to another. For example, it never ceases to amaze me how many employees think its better for them to open a competing shop and poach customers instead of sitting down with their former employer to work out the terms of an existing noncompetition agreement. Employees are best served following Conan’s example in exiting a business – even if they have to swallow a little bit of pride and take the high road.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The (im)morality of layoffs?

Money, not morality, is the principle commerce of civilized nations.

--Thomas Jefferson

In the May 24 New York Times, ethicist Randy Cohen argues that it is unethical for American businesses to engage in mass layoffs:

These days such mass layoffs are sadly unsurprising, but are they ethical?… They are not, at least until more benign tactics have been exhausted….

To deprive thousands of people of their livelihood can have a catastrophic effect on them, their families and their communities. For a company to get through a recession, suffering may be unavoidable, but ethical management means minimizing that hardship, spreading the pain equitably and bearing some responsibility for its consequences….

Before adopting the ethics of the overcrowded lifeboat, before tossing thousands of non-millionaires over the side, gentler — and more equitable — methods must be tried. Everyone’s hours might be reduced, diffusing the pain. Dividends to stockholders can be eliminated. Pay cuts can be instituted company-wide, with the deepest reserved for the highest paid (that is, those most able to endure them).

Mr. Cohen is selling employers short. I work with a lot of companies, many of which have, with much regret, been forced to downsize their workforces in the past few months. I can assure you it is never a decision taken lightly, or without careful deliberation. Certainly, layoffs are an opportunity for employers to shed some dead weight. Many good employees are also impacted, though. Those businesses that can offer economic help to severed employees do so, in varying sized packages. Others have considered alternate plans, such as furloughs, alternate work schedules, or wage reductions.

For some businesses, however, whether because of the need of their operations or the composition of their workforces, layoffs are the only viable option. A paycheck for some is better than a paycheck for none.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The worst television show ever? FOX to air corporate layoffs

From the network that brought us reality TV gems such as The Littlest Groom, Who Wants To Marry a Millionaire, and My Big, Fat, Obnoxious Fiance comes the next awful idea to grace our airwaves: Someone’s Gotta Go. If you’ve yet to hear about this atrocity, here’s the premise of this in production FOX show, courtesy of Juju Chang and Kelly Hagan at ABCnews.com:

The show will highlight a small business that needs to downsize because of the economy, but instead of the bosses deciding who gets the axe, co-workers must choose who among them has to go. Workers will have to defend themselves, justifying their work habits, all leading to a group discussion to determine who gets dumped.

To help make their decision, employees will have access to each others' usually private records including budgets, human resources files and salaries.

This show is just plain wrong. First, the set-up has myriad legal risks for the employer. Having co-workers instead of management make the decision will not insulate the employer from potential liability. Risks abound for coworker harassment, coworker retaliation, or discrimination courtesy of the cat’s paw. Moreover, the inevitable release that employees will have to sign to appear on the show might insulate the producers from liability, but likely will not protect the employers. (As a side-note, I wonder if the show runners are indemnifying participating employers from any lawsuits that result from the layoffs).

More fundamentally, however, I question the corporate integrity of any company that would agree to take part in this freak show. Except in the most egregious of cases, terminating an employee is the worst thing an employer has to do. Why turn this into public humiliation? Maybe the winner in all of this is the laid-off employee, cast free from a company callous enough to televise his or her termination to millions.

[Hat tip: The Business of Management and Overlawyered]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Enjoying the small things in these trying times

When I attended Binghamton University, nee SUNY-Binghamton, in the early 90s, it’s sports programs were Division III. It was small-time, no television, 500 people in the West Gym, college basketball, to which I held season tickets for my four years on campus. Imagine my joy, then, to sit in my family room Saturday morning and watch Binghamton on ESPN2 play for its first conference title and trip to March Madness since the jump to Division I eight year ago. When the final buzzer sounded, and the announcers congratulated Binghamton on its historic win, and thousands of crazed fans flooded the floor of the school glistening new Events Center, I am not embarrassed to say that I shed a tear for my alma matter.

We live in depressing times. You can’t open a newspaper or surf the web without reading news about the sinking stock market, failing banks, high foreclosure rates, and record job losses. As an employment lawyer, those layoffs, frankly, are good for business. Yet, every time my phone rings and I field a call about handling the mechanics of another layoff at some other company, my heart sinks a little. I’m grateful for the work, and somber that what I do for a living can have such a profound effect on the lives of people that I likely will never meet.

Binghamton’s foray into big time college sports got me to thinking, in these trying times, we really do need to sit back and enjoy the small things. Whatever your small thing might be – a picture your daughter colored for you, a quiet conversation with someone you love, or picking your beloved alma mater to wear Cinderella’s slipper in the office pool – embrace it, even for a moment. At the end of the day, it’s the small things in our lives that are often the biggest of all, and help us cope with the big things that we too often allow to define who we are.

Oh, and go Binghamton, beat Duke.

[Update: for more on Binghamton basketball, I cannot more highly recommend Tzvi Twersky article in Slam Magazine: Great Blue Times at Binghamton U.]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Old news is bad news for businesses: Labor & Employment cases remain most popular targets

Fulbright & Jaworski has published its annual report on litigation trends, and the news is scary for American businesses. Labor and employment cases remain the most numerous type of case pending in 2008. 47% of U.S. companies surveyed reported being sued in a labor or employment case. When you focus just on the Midwest, the number jumps to 54%.

Other highlights of interest to employers:

• Wage-and-hour lawsuits spiked 19%.
• After wage-and-hour, companies saw big increases in five other areas of workplace litigation: discrimination, employee privacy, ERISA, disability claims, and age discrimination.
• Of all of the different types of employment litigation, U.S. companies singled out race discrimination cases as creating the highest financial exposure, followed by sex discrimination, wage-and-hour violations, age claims, harassment, retaliation, disability, non-compete cases, and FMLA violations.

There are a lot of lessons that businesses can draw from these findings. I'd like to focus on two. First, especially in a down economy, it is naive for employers to think that claims brought by employees will decrease or even flat-line in 2009. If anything, these claims will increase even more.

There is no way to prevent yourself from being sued. But, there is one surefire way to limit the risk, which brings me to my second lesson -- training and preventative measures are key. Has your handbook recently been reviewed and updated? Have you done harassment and EEO training in the past two years? Are you supervisors and managers up to date on how to effectively discipline employees? Will your myriad wage and hour practices pass legal muster? If you answer "no" to even one of these questions, your company is at risk in becoming a stat in Fulbright's 2009 survey.

Carnival of HR is available

The Career Encouragement Blog has posted this week's Carnival of HR. Please take a few minutes out of your day to peruse the best of the of the HR blogosphere.

10 reasons why I love my job

The National Law Journal has published its 15th annual list of bizarre employment law cases. My favorite is actually number 10: "Maternity Wear, Pregnancy Suit":

Philadelphia-based maternity clothes retailer Mothers Work Inc. agreed to pay $375,000 to settle a suit alleging that it refused to hire qualified female applicants because they were pregnant. LaShonda Burns alleged the company would not hire applicants for sales positions who were "visibly pregnant" or who it learned were pregnant through interviews. Company president Rebecca Matthias denied any discrimination, but said the settlement was reached to avoid "huge" costs and "distractions" of protracted litigation. She added, "It's important to make sure our culture and policy are lived at every one of our stores."

What's next, the NAACP being sued for race discrimination?

Columbus Dispatch on military status discrimination

This morning's Columbus Dispatch reports on Ohio's ban on military status discrimination, which will go into effect on March 23. For some information on what this law protects, take a look at my January 10 post: Ohio to prohibit discrimination based on "military status". The Dispatch's article quotes me on some the new law's effects:

The courts will eventually decide how to interpret the new law, though it's not hard to guess what some interpretations might be, experts say. For example, gender-based discrimination is illegal, and courts have decided that means that sexual harassment is illegal, said Jonathan Hyman, a labor and employment lawyer with the Cleveland firm of Kohrman, Jackson & Krantz.

"It's not a stretch that harassment because of military status could be illegal," he said. In that interpretation, an employee who is anti-war could violate the law by making fun of an activated military member's service.

Even the most ardent opposition of the Iraq war would be hard pressed to be in favor of discrimination against the men and women who volunteer to serve and defend our country. Nevertheless, by including military status as a protected class in our employment discrimination laws, the claims based on political speech has the potential to be injected into private workplaces like never before. If military status is protected, then in all likelihood, harassment because of military status will be actionable. Heated workplace debates about war policy could turn into discrimination claims. When Ohio's courts are asked to interpret this statute in a harassment context (and trust me, they will be asked), I hope that they seriously consider free speech versus what is truly a hostile environment, and rule accordingly.

The year's worst employees

It's the time of year when everyone is putting out their year-end best of lists, and the employment realm is no exception. Careerbuilder.com has published its list of the year's worst employees. If you thought your company had some doozies, check out the list, available here: Worst Employees of the Year.

My personal favorite:

An off-duty airline employee was arrested on assault charges after he sat down next to a woman trying to sleep and allegedly touched her inappropriately, according to an affidavit filed with a complaint from the woman. The employee was charged with simple assault and was suspended from the airline until further review of the incident.

Feel free to comment with your best employee horror story from the past year.