Friday, February 16, 2018
On the heels of Dear Dr. LOVELESS Valentines HR Edition last week, the burning question this week is; does Stormy Daniels get to spill the beans on her alleged affair in 2006 with Donald Trump? Despite the fact that she was under a non-disclosure agreement? Maybe yes, and maybe no. It may depend on what the agreement actually said.
Quick recap: In 2016, The Wall Street Journal reported that porn star Stormy Daniels was paid $130,000 during the 2016 presidential campaign to keep quiet about an alleged sexual relationship with Donald Trump that took place in 2006. The WSJ story blew up again more recently. Ms. Daniels had talked about the alleged relationship before 2016, but she'd kept quiet since entering into the agreement.
This week, President Trump's personal legal counsel, Michael Cohen, disclosed that he (Mr. Cohen) is the one who paid the $130,000 to Ms. Daniels, out of his own funds, and that neither the Trump Organization nor the Trump campaign paid it, either directly or indirectly. (Yeah, I know.)
So now Ms. Daniels is saying she is no longer bound by the NDA in her agreement because Mr. Cohen violated it first. Is she right?
To be able to answer that question, we'd have to see the NDA. If it says only that neither party (or their representatives) will discuss the agreement or the situation that resulted in the agreement, with no exceptions, then she may be correct.
But many NDAs (including all that are drafted by me) make an exception for truthful disclosures that are required by law, or are disclosed pursuant to a subpoena or a government investigation. This is important because some say that the payoff to Ms. Daniels may have violated federal election laws. Although Mr. Cohen released a statement to The New York Times, it was apparently in connection with his formal response to a complaint about the payoff that was filed with the Federal Election Commission. The FEC complaint has been in the news since at least January, so that cat has been out of the bag for a while.
If Mr. Cohen made the media statement in connection with his response to an FEC investigation, and if the FEC investigation had already been made public by someone other than himself or anyone on the Trump team, and depending on the applicable exceptions (if any) to the NDA, then Mr. Cohen may not necessarily have breached the NDA. Which means that Ms. Daniels might still be bound by it, too.
Ms. Daniels claimed on Valentine’s Day to have a "Monica Lewinsky dress" that she is going to have DNA-tested. You will recall that the stained navy-blue GAP cocktail dress of Ms. Lewinsky is still considered one of the most famous articles of evidence in history. Ms. Daniels claims that the shimmering gold mini dress with a plunging neckline was kept in pristine condition after her alleged 2006 sexual encounter with Trump at the Lake Tahoe hotel suite. Ms. Daniels is reportedly planning on having the dress forensically tested to search for any DNA that proves she isn’t lying about her tryst with Trump, including samples of skin, hair or … anything.
Common Sense Counsel: Be careful what you sign and be careful what you say. And save the evidence.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at email@example.com or 334-246-2901. Tommy’s Law Partner Robin Shea is Dr. Loveless and the Stormy Daniels story author.
Monday, February 5, 2018
As a follow-up to the OA News AP Sunday article “Trump claims memo totally vindicates him,” the FISA Memo released last week revealed what some might call prosecutorial misconduct by the FBI or DOJ attorneys who signed the FISA surveillance warrant application on Trump advisor Carter Page. The FISA Court is actual composed of seven rotating United States Court District Judges from various regions of the country all appointed by U.S. Supreme Court Chief Justice John Roberts for a seven year term. Once a quarter, for one week, one of the seven will come to the Washington to hear a FISA warrant application for surveillance related to national intelligence. From news reports, four different FISA Court Judges heard FISA applications concerning Carter Page, most likely presented by the same FBI or DOJ attorneys. If in fact, as alleged in the FISA Memo, the FBI or DOJ attorneys failed to fully disclose to the FISA Judge that the source was not creditable, bias, political opposition research, etc. then all four FISA warrant applications can be retroactively challenged on a Motion to Quash. At that point all four District Court Judges who ruled could meet collectively to hear the Motion to Quash. If granted, all the “Fruits of the Poisonous Tree” in any manner related to the improperly granted FISA surveillance warrants would become of no legal significance. A Federal District Judge who believes an attorney was concealing facts or bias of a source, especially in a probable cause hearing, can take a number of steps to correct the injustice. It appears the FISA Memo was released to give the FISA Court a process to begin that Motion to Quash challenge, or cause Chief Justice John Roberts to take the bull by the horns in his capacity as the FISA Court judicial appointing authority, to shine a bright light sua sponte (on his own accord). If that happens, look for an argument by the Trump and DOJ lawyers that the Robert Muller appointment was one fruit of that poisonous tree.
Tommy Eden is an attorney who lives in Auburn and a guest Columnist to the OA News.
Friday, February 2, 2018
Susan Morris-Huse worked at Geico as a TCR I Supervisor, an individual who supervises the processing and settling of claims in a telephone claims unit. She was diagnosed with Meniere’s Disease, a disease of the inner ear, in the mid 2000s and for about a decade took intermittent disability leave when the disease. It would flare up causing her “random attacks of vertigo, and nearly chronic bouts of dizziness and imbalance,” according to her lawsuit filed in Federal Court in Tampa.
After undergoing a procedure in 2013, her doctor wrote to Geico recommending that Huse be allowed to work from home because she could not “reliably drive long distances and do things that required walking up and down stairs.” Geico, in response, arranged for her to carpool with co-workers, allowing her to avoid climbing stairs and providing her a few offices spaces for her to rest should her symptoms act up, but did not let her work remotely.
Huse returned to work using the ride-share system and was able to make her shifts for several months until she transferred to a different office where she did not have to drive as far to work. But she could not work after June 2015 and went on long term disability. In 2016 Huse filed suit alleging that Geico did not accommodate her disability under the ADA. The Federal Judge ruled on Tuesday that the accommodations Geico provided Huse were reasonable, even if they weren’t the accommodations she preferred, and dismissed her lawsuit.
Common Sense Counsel: The ADA requires employers to provide “reasonable accommodations” that allow workers to overcome disabilities and perform their jobs so long as these accommodations do not impose an “undue hardship” on the business. The Judge held in this case it was enough that Geico arranged for her to get rides with co-workers and did not require that she climb stairs. The Judge added that telework was not a reasonable accommodation in this case because Huse’s job required that she provide in-person guidance to the workers she supervised and monitor their calls using software available only at Geico’s offices; ruling that “The undisputed evidence demonstrates that Huse held an interactive job, that used technology available only at the office locations, and which required her to have a regular, physical presence.” The federal judge’s analysis of Huse’s written Geico job description as a TCR I Supervisor was critical to the favorable outcome for Geico in this case. Never underestimate the value of a well drafted, legally compliant job description, and wise legal counsel on patiently handling disabled workers. Preventive preparation and patience can keep you from getting dizzy when the lawsuit arrives.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and can be contacted at firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork Geico was represented by Tommy’s Partner’s Angelique Groza Lyons and Sean Douthard.
Wednesday, January 17, 2018
Henry Ford once said, “The only thing worse than training your employees and having them leave is not training them and having them stay.” Scientific studies suggest that hiring in the right people will maximize the company’s returns. It has long been understood that a small proportion of the workforce tends to drive a large proportion of the results. Talented employees are “force multipliers”, raising the performance bar for their colleagues, and their direct reports. By word and deed, they model and teach winning behaviors that shape high-performing cultures. Science reveals that regardless of the job or industry, such individuals tend to share a range of measurable qualities, which can be identified fairly early in the process. The 21st century workforce needs these 3 qualities to succeed and thrive.
1) Demonstrate Ability To Do the Job: Can the person demonstrate the knowledge and skill it takes to perform the key tasks that make up the job. The single-best predictor of future job success is the proven ability to perform those job skills in the past. Have the person provide a work sample or observe the candidate actually performing the tasks that make up the job. For more complex leadership jobs, the question shifts to how likely an individual is to be able to learn and master the requisite knowledge and skill. Learning ability, typically measured by IQ, includes a substantial cognitive component but also the motivation to pick up new knowledge and skills fast and flexibly. Strategic thinking, vision, creativity and imagination, as well as an entrepreneurial mindset and the ability to adapt an organization for the long-term future.
2) Possess Emotional Intelligence: This involve two fundamental abilities: the emotional intelligence ability to manage oneself and the ability to manage others. Employees likely to succeed in leadership roles, and more complex jobs are first able to manage themselves. Can they calmly handle increased pressure, deal constructively with adversity, and act with dignity and integrity. Secondly, they have the social and emotional intelligence to establish and maintain cooperative working relationships, build a broad network of contacts and form alliances, and be influential and persuasive. Emotional intelligence can be assessed by psychometric tests and further refined through training and development.
3) Possesses Drive and Resilience: it is the will and motivation to work hard, achieve, and do whatever it takes to get the job done. This is identified as work ethic and ambition. This is the accelerator that multiplies the potential influence of ability and social skills on future success. Drive can be assessed by standardized tests that measure conscientiousness, achievement motivation, and ambition. Behaviorally it is how hard an individual works, willingness to take on extra duties and assignments, eagerness for more responsibility, and even readiness to sacrifice.
Common Sense Counsel: if you bet on those who Demonstrate an Ability To Do the Job, Possess Emotional Intelligence and Possesses Drive and Resilience you will end up with a higher proportion of future stars who will contribute disproportionately to the organization.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at email@example.com or 334-246-2901. Blog at www.alabamaatwork.com
Friday, January 12, 2018
On Wednesday morning, officials from U.S. Immigration and Customs Enforcement inspected nearly 100 7-Eleven stores across the country, and arrested 21 employees for being illegally present in the United States. This is believed to be the Trump Administration’s largest immigration enforcement operation against an individual employer to date. The 7-Eleven raids and others are consistent with the Trump Administration’s announcement last October of its intention to increase significantly enforcement of the immigration laws in workplaces.
This week’s raids bring back memories of a March 6, 2007, ICE raid at Michael Bianco, Inc., a leather factory and government contractor in New Bedford, Massachusetts. As a result of that raid, 361 illegal workers were arrested and some were detained at a facility in Texas. Michael Bianco, the owner of the company, was sentenced to 12 months and a day in federal prison, plus three years of supervised release. He was also required to pay a $30,000 fine for helping to harbor and conceal illegal immigrants.
This new policy of arrests and enforcement has produced results. There were nearly 30,000 more non-border ICE arrests during the first fiscal year of Trump's term, which ended on September 30, 2017, than during all of fiscal year 2016.
Common Sense Counsel: What does this new Trump policy mean for employers? For violations a civil penalties could reach $21,563 for each person illegally employed; and for violations of simple recordkeeping, civil penalties could reach $2,156 for each I-9 Form containing substantive violations or uncorrected technical violations. The best strategy for employers is to have their house in order before ICE shows up unexpectedly. The following steps are recommended:
1) Conduct periodic self-audits of your I-9s and practices, and review any deficiencies or corrective action with immigration counsel. Particular attention should be given to cases where concerns are raised about the legal status of the employee despite the I-9 documents presented by the employee.
2) Prepare yourself by having a procedure to follow if and when ICE agents arrive. The front desk personnel need to be trained about who is to be contacted, and they should know not to provide any other information to ICE. The employer’s procedure also should include who is to be the employer’s lead contact with ICE.
3) Know where your I-9s are maintained. Although employers have three business days to provide the I-9s, that time can pass quickly if the documents cannot be located or if the I-9s are in an off-site location.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at firstname.lastname@example.org or 334-246-2901. Will Krasnow in the Constangy Boston office drafted this excellent update. Blog at www.alabamaatwork.com
Thursday, January 4, 2018
I want to highly recommend to my readers The Energy Bus by Jon Gordon, a book told as a business parable from the perspective of a manager (George) who is leading a team heading nowhere. His car breaks down so for two weeks he ends up riding a city bus with a positive motivation guru at the wheel and a group of “energy” converts as passengers. Over the two weeks as George rides the bus he learns lessons designed to help a leader transform a team by creating a positive vision and culture of energy. George is able to save his job and inspires his team by becoming its Chief Energy Officer (CEO) using these 10 Rules for approaching life and work with the kind of positive, forward thinking that leads to true accomplishment!
Rule #1 “You’re the driver of your bus.” It’s all about personal responsibility. We are each responsible for the direction of our lives. And the direction of our lives is shaped by each day, each thought. If we are complacent in our lives we let others drive for us.
Rule #2 “Desire, Vision, and Focus Move Your Bus in the Right Direction.” You have to have a vision, have a compelling reason to keep you moving and the persistence to keep to it.
Rule #3 “Fuel Your Ride with Positive Energy.” Positive energy is the fuel that allows you to overcome the obstacles. Positive energy is high octane fuel and negative energy is gas from the bottom of last years can.
Rule #4 “Invite People on Your Bus and Share Your Vision for the Road Ahead.” Associating with people who push you forward is one of the smartest things you can do. If the people you work with or associate with are stagnant, then you need to break free.
Rule #5 “Don’t waste your energy on those who do not get on the bus.” Do not take it personally, maybe they are meant to get on another bus.
Rule #6 “Post a sign that says no Energy Vampires allowed on your bus.” Let them know who ever is negative will be kicked off the bus or left at the station.
Rule #7 “Enthusiasm Attracts More Passengers and Energizes Them During the Ride.” In college sports it seems that the same teams are at or near the top year after year. Players recognize a good culture and want to be a part of it. The same can be said of work teams and companies. It’s not all about the money.
Rule #8 “Love Your Passengers.” You can’t fake it. In order to lead people or attract people to your cause you have to care for them. Love cannot be selfish. As a leader you must want the best for your team members. Back to sports: time and time again you see a team of superior athletes being beat by a team made up of individuals who would do anything for their team and teammates. The key is to cultivate that love with positive energy.
Rule #9 “Drive with Purpose.” Purpose is the ultimate fuel for our journey through life.
Rule #10 “Have Fun and Enjoy the Ride.” No one goes through life untested and the answer to these tests is positive energy, the kind of positive energy consisting of vision, trust, optimism, enthusiasm, purpose, and spirit that defines great leaders and their teams.
Common Sense Counsel: Ken Blanchard said it best in the forward to the book, "If you want to fuel your family, your career, your team, and your organization with spirit, read this book. Jon’s energy and advice will leap off the page and help you cultivate positive energy in everything you do and you will make the world a better place for your having been here.” Co-author of The One Minute Manager®; book endorsed by Dabo Swinney, Head Coach, Clemson University Football Team, Mark Richt, Head Coach, University of Miami Football Team, Mike Smith, Head Coach, The Atlanta Falcons, Doc Rivers, Head Coach, Boston Celtics and many others in business and industry. The Energy Bus is the perfect mandatory team read book for 2018!
Tuesday, January 2, 2018
Tomorrow is January 1, 2018, and you have the chance to reinvent yourself and your workplace to Make a Difference for Good. Change is coming at an accelerated pace with over 25 industries going the way of the buggy whip manufacturers. Leadership Lessons:
1) Use Practical Wisdom - The Right Way to Do the Right Thing. That means to encourage individuals to focus on their own personal intelligence and integrity rather than simply navigating the rules and incentives established by others.
2) Realize that every employee has a story. You never will know their story if you do not take time to ask and breaking bread many times helps break the ice. Working side by side is a great way to hear the employee’s story and until they believe you care you will learn very little. Listening is a learned trait of highly effective emotionally intelligent leaders.
3) You will never know what needs fixing/changing/pivoting until you ask. The lesson that Goggle learned in Project Aristotle was that using engagement survey data allows you to learn what 5 characteristics make a great team that daily yields world changing results. Artificial intelligence will invade most facets our business life in 2018, but the most important asset you will have access to is the collective creativity hidden in the brains of your employees. Some call it magic dust - to others it is discretionary effort.
4) Saying “thank you” matters. The ability to express genuine appreciation is a top leadership trait. When you see good work - say it, and a handwritten note of appreciation will be kept by an employee for years. Know that unplanned acts of kindness, hospital visit, or unexpected gift card for over the top service make a difference to the morale of the entire team. This is just one trait of the 12 traits of an emotionally intelligent boss.
5) Google learned in Project Oxygen that Great Bosses display 8 traits. When Goggle surveyed its work team’s common traits emerged. The most encouraging lesson was that great bosses can be made not bought. Investing in Great Teams and Great Bosses training in 2018 could just be the magic dust you have been missing!
6) Rewards should be personal. In every episode of Undercover Boss, the executive calls a few special employees to his or her office for an unveiling. At that time, the CEO makes sure to thank employees for their hard work and dedication to the company. The visit to the CEO’s office includes a reward tailored to the individual’s need, a goal they want to achieve, and examples include training and development, help with educational costs, financial needs.
7) Chart your course for 2018. A wise captain precisely navigates his course before leaving port. Great bosses set a clear vision, mission and manages by values posted for all to see. Taking time in the next 30 days to bring your entire crew together for this business saving exercise which has the potential to make 2018 your best year ever!
Common Sense Counsel. Following these 7 Leadership Lessons will mean you won’t be caught with your own over supply of buggy whips in December 2018.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL He can be contacted at email@example.com or 334-246-2901. Blog at www.alabamaatwork.com