Labor & Employment Developments Blog

I know I just posted about the NFL but they keep doing things that are instructive to those of us with an interest in employment law.  During last week’s games, an unusual number of players were injured by blows to the head.  As a result, some fines were levied, including one to a Steelers player named James Harrison.  As reported by ESPN:

Harrison was fined $75,000 for his hard, helmet-to-helmet hit on Browns wide receiver Mohamed Massaquoi, one of several devastating blows on an unusually violent Sunday of head-high collisions around the NFL. Harrison's hit on Massaquoi — and one that knocked out Browns Pro Bowler Josh Cribbs on a running play — helped prompt commissioner Roger Goodell to crack down and impose significant fines and suspensions for players for hits to the head and neck. 

After being fined, Harrison was incensed and threatened to retire.  After he cooled off, he realized that was not a good idea, apologized and indicated that he will continue to play football.   The NFL has changed its policy without a warning, and will fine and/or suspend players for flagrant hits, especially helmet to helmet hits. 

Unless you happen to be a fan of a team impacted by last weekend’s injuries, why should you care?  The way this was handled by the NFL created issues that I have seen repeatedly in my practice.  In essence, the NFL has changed its rules to the detriment of certain players.  More significantly, the change comes in the middle of the season rather than before or after.  Employers who change the rules applicable to their employees, particularly if the timing or other aspects of the change is perceived as unfair, risk several negative consequences.  Among them are employee turnover, litigation and opening the door to unions. 

But regular employers don’t do that you say?  Yes they do — here are some hypothetical examples:

• That new commission program that was rolled out turned out to be too generous so the employer modifies it, effective immediately;

• A new manager decides that unlike his predecessor he is going to enforce the attendance policy to the letter;

• To save maintenance expenses, the company decides that employees will no longer be allowed to drive company vehicles home at night.

I am not suggesting that an employer cannot do any of the above at its sole discretion, at least in non-union environments.  My point is that if you change the rules, you need to be sensitive to the reactions of the employees or you are asking for trouble.  What is necessary is adequate planning before a change and consideration of how best to present the changes.  Here are some thoughts:

• Do not make sweeping changes based on isolated incidents.  Some have suggested that the NFL is making a broad policy change based on one unusually bad weekend instead of carefully studying and considering the issue before acting;

• Consider and plan for the employees’ reaction to the changes.  This is all about fairness.  Arguably, the NFL should have maintained its current policy for the remainder of the season and advised players of changes in policy before next season.  They would have been able to levy fines as in the past but would have avoided the perception that they are unfairly changing the rules.  If they really felt the problem was escalating, fines could have been increased; the introduction of possible suspensions is what seems to have blindsided players;

• Consider the “optics,” i.e. how it makes the employer look.  As several commentators have noted, the NFL has been selling the violence of professional football for years while also paying lip service to concerns over player safety.  You can buy videos of “greatest” (most violent) hits from the NFL.  As a result, they do not exactly have the high ground of this issue. 

A lot of people have mocked Harrison for his reaction to the NFL policy change but it is understandable on some levels.  Regardless, lesson learned for the rest of us.  Do not change the rules without a carefully thought out plan.

Last NFL post for a while — I promise. 

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