Monthly Archives: January 2016


An ounce of prevention is worth a pound of cure.  Benjamin Franklin

Wellness in the workplace is a hot topic.  Many employers have embraced health and fitness programs.  They know that healthy employees are more productive and less expensive.

Setting aside the workplace, we all yearn for a healthy body and mind.    Most of us think about it every day.  Yet,  by and large — so to speak — Americans seem to be growing bigger and getting more sedentary.  What gives?


The USDA recently released a new set of “nutritional guidelines” just as it has every five years since around the time President Reagan proclaimed ketchup a vegetable.

As noted by nutritionist and health expert Dr. Philip Maffetone:

It began with the days of the famous four food groups, followed by the various Food Pyramid schemes, and other convoluted images that are really just different versions of the same Gov.Diet.  Since then, some interesting things have happened:

  • Obesity has more than doubled, and now even affects young children.
  • At least 75 percent of the population is overfat (those who have excess body fat but don’t qualify as obese).
  • Heart disease, stroke, hypertension, high blood fats and other disease risks and chronic illnesses have risen dramatically.
  • Diabetes has exploded, with more than half of Americans suddenly suffering some form of it.
  • U.S. healthcare costs have more than tripled since 1980, and this year are estimated to reach $4 trillion (about $50,000 for a family of four).

In his article Death by Dietary Guidelines, Dr. Maffetone chronicles what might happen to his good health if he blindly followed the US guidelines for a year.  His hypothetical reveals the dangers of eating poorly.

Companies and individuals need to think for themselves and consult qualified professionals when it comes to health and fitness.  Question everything.  Evaluate the options.  Then develop a plan and stick to it.  As the Navy SEALs say:  “Plan your dive and dive your plan.”


A large, framed poster of Winston Churchill hangs behind my desk at work.  It depicts Churchill pacing aboard a ship in the windswept North Atlantic in 1941 — when England was near defeat to Nazi Germany.  Across the room hangs Jack LaLanne’s equally inspiring poster.  In it, he grins broadly, a man in his 80s lifting weights in his iconic jumpsuit.

Every time I walk to my desk I see Churchill battling the wind and elements.  And when I sit down and look up I see a spry octogenarian grinning ear to ear — living his dream.  These images are symbolic reminders to stay strong, make the right choices, and occasionally have a laugh while you’re at it.  They are part of the deeply embedded work “culture” at Bourque Law Firm.

We go to work to work.  While there, however, couple your work ethic with broader concepts — including those that ensure the vitality of your physical and mental health and well-being.


As I wrote here, industry leaders like Able Engineering make it their business to ensure their employees’ health and wellness.  Able’s Total Wellness program arguably sets the standard in the industry.

However, not all employers will have the wherewithal to implement the kind of system which exists at Able.  For these employers it is critical to do something to help employees obtain, maintain and/or regain their physical and mental health.

There are several ways to get started or to enhance a wellness ethos in your workplace:

  • Research the issues and develop a list of options;
  • Observe successful companies’ wellness programs;
  • Consult a professional;
  • Brainstorm with management and employees; and/or
  • Call me and we can go for a walk, run, lift some weights, do some tree pull-ups, or throw a Frisbee or football — all the while sharing ideas as to how each of our workplaces and households can get better.  I’ll buy the drinks afterwards, and they will not include Gatorade.


We all need more than luck in our quest for health and fitness.  Increase your company’s odds of having healthy employees by starting or enhancing a health and wellness program.

The same principle applies to all employees reading this article.  Start your wellness at home and bring it into the workplace, or vice-versa.  You need not overhaul everything at once.  Engage in what the Japanese call “kaizen”:  continuous improvement.

Have some fun while you are achieving your goals.  Use symbols, mantras, and themes that reflect and confirm your values and principles as you continually improve.  In this regard, “perfection is not attainable, but if we chase perfection we can catch excellence.  Vince Lombardi


Jack LaLanne didn’t touch sugar-infused foods after age 15, trained everyday, and lived healthily into his 90s.  For a glimpse into his greatness, read the article Jack LaLanne is Still an Animal.  And, here he is at age 70 pulling 70 boats one mile:

Winston Churchill, on the other hand, lived to the ripe old age of 90 despite having champagne for breakfast and often imbibing other spirits throughout the day and night.  And, he lead England in almost singlehandedly holding-off Nazi Germany before the United States and Russia entered World War II.  Churchill’s nation-saving achievement came shortly after he had been laughed out of government for warning of Hitler’s emerging threat.

Read The Gathering Storm if you want to understand Churchill’s greatness (caveat:  it is not a short read).

It is ironic that Churchill lived so well and so long despite his lifestyle, not to mention the stress to which he was exposed.  He is the exception to the rule, of course.  Perhaps it was his sense of humor.  When asked why he drank champagne for breakfast, Churchill responded: “Because I don’t like skim milk.”


One who deceives will always find those who allow themselves to be deceived.  Machiavelli.

Con men roam the corridors of country clubs, infect industry meetings, and seem to magically materialize just when needed  — “helping” those in a time of need or in search of prosperity.  Prosperity, of course, is a euphemism for money.  Con men promise money and deliver misery.

Cons result in billions of dollars of losses and waste.  On a micro level the con man wrecks business and family wealth; on a broader level cons can destroy an entire nation’s economy.

Why, then, are there no courses in college or business school on con men? Why don’t we teach our children how to spot and avoid these monsters cloaked in legitimacy?   Because our schools and households are behind the curve.

The purpose of this article is to balance the playing field.  Con artists are just that — they are artists. To hold one’s own against such an artist requires understanding the dark art of the con.


It is estimated that only 37% of people who have been the  “mark” of a con man even know they have been conned.  This astonishing statistic is depressing:  if just over one in three people recognize a con after it has happened, how can there be any hope of identifying a con man before he has his hooks in you?

The Confidence Game: Why We Fall for it Every Time is a fascinating place to start for those seeking to look inside the world of the con man.  More important, the book provides numerous anecdotes and tips to enable readers to spot con men and avoid being sucked, along with their money, into the con’s painful predicaments and emotional escapades.

From multimillion-dollar Ponzi schemes to small-time frauds, Maria Konnikova pulls together a selection of fascinating stories to demonstrate what all cons share in common, drawing on scientific, dramatic, and psychological perspectives. Insightful and gripping, the book brings readers into the world of the con, examining the relationship between artist and victim. The Confidence Game asks not only why we believe con artists, but also examines the very act of believing and how our sense of truth can be manipulated by those around us.


A recent book review of The Confidence Game puts it best:

Con artists aren’t just master manipulators; they are expert storytellers. Much as we are intrinsically inclined to trust, we are naturally drawn to a compelling story. Just ask any advertising executive or political operative. “When a fact is plausible, we still need to test it,” Konnikova writes with characteristic concision. “When a story is plausible, we often assume it’s true.” And once we’ve accepted a story as true, we’re not likely to question it; on the contrary, we will probably unconsciously bend any contradictory information to conform to the conclusion we’ve already drawn. There’s a name for this phenomenon — confirmation bias. It provides the key psychological scaffolding for the long con, during the course of which the mark finds a way to rationalize any number of warning signs.


Many victims of cons are either too impoverished or too shamed to contact a lawyer or the authorities.  Despite this, I have handled a number of investments scams, Ponzi schemes, embezzlements, and the like in my law practice over the last 24 years.  Time and again I have seen victims ignore warning signs and rationalize ANYTHING to assure themselves they have not been conned.

Hanging out in lawyers’ offices is no fun.  So, avoid being conned in the first instance.   Here is what to look for when a person enters your life and “shares” with you how they can help you make money:

  • The con man will flatter you from the start (case in point:  to engender my trust, a  con man recently told me that I was the “most honest” lawyer he had ever met a mere 30 minutes after we were introduced)
  • The con man may have a seemingly “legitimate” background, having worked for name recognized companies or having lots of “contacts” in your industry
  • Cons will tell you that they have obtained a special ability, “formula”, or license to make or get something that no one else possesses
  • Skilled con artists can bring out your least enviable traits, like greed, fear, and insecurity. They well know that promises of outsized returns with no risk will get your attention
  • Cons often work with silent partners (e.g. one con man may tout his silent partner as an industry expert or someone who possesses a product that will make you millions)
  • Cons carefully develop their reputations;  many con men are “philanthropists” and well known in their industry
  • Con men often pose as altruists:  they often state that they entered your industry only to help you or solely to improve humanity
  • Cons mirror their victims — selecting those of the same race, religion, political affiliation, and culture (thus the victim thinks:  he is just like me, he could never deceive or be dishonest)
  • Con artists create crises that require immediate answers (and more money, which they promise will fix everything)
  • Con artists try to make you feel inadequate if you don’t believe them or ask too many questions; many of their “answers” are nonsensical gobbledygook that the victim is shamed into accepting for fear of looking stupid
  • Con artists will isolate you from friends and family who are skeptical of their money making scheme
  • Last but not least, cons will tell you that you will make outrageous sums of money thru a “relatively” small initial investment


Have you just met someone who is trying to “help” you navigate a challenging situation?  Are they doing it “just” for you?  Are they immediately flattering you and ingratiating themselves with you — touting their vast experience and name-dropping?

It is possible that this new person in your life has been heaven sent just when you need him.   But, it’s more likely this man is too good to be true.   He is a con man.  Politely tell him to hit the road.

Art Bourque has guarded and guided victims of business and investment scams for many years; he hopes this article will help others avoid being conned or deceived.  Contact Mr. Bourque with any questions concerning this article.  In the interim, “enjoy” this gritty Henry Rollins video, Liar, which symbolizes how a con man thinks and what a con man really looks like on the inside:


Miyagi: Now, ready?

Daniel: Yeah, I guess so.

Miyagi: [sighs] Daniel-san, must talk.

[they both kneel]

Miyagi: Walk on road, hm? Walk left side, safe. Walk right side, safe. Walk middle, sooner or later

[makes squish gesture]

Miyagi: get squish just like grape. Here, karate, same thing. Either you karate do “yes” or karate do “no.” You karate do “guess so,”

[makes squish gesture]

Miyagi: just like grape. Understand?

Daniel: Yeah, I understand.

Miyagi: Now, ready?

Daniel: Yeah, I’m ready.

The Karate Kid is one of my favorite movies.  The 1984 classic delivers lesson after lesson:  be humble; stay mentally strong no matter the opponent; confront your fears; do not quit; good things come from hard work; do not be afraid to try new things; and on and on.

This edition of the HR Law Insider focuses on keeping your business out of Miyagi’s “middle lane” in 2016; it shares eight things you should be doing to ensure that your business is squared away for the year.



Hiring the right person for the job and for your organization is where it all starts.  Starting now:

  • Assess your employment documents and make sure they are up to date and comply with the law (employment application, employee handbook, covenant not to compete, non-disclosure agreement, leave policies, etc.)
  • Perform background checks when possible (and comply with the Fair Credit Reporting Act by having the applicant sign a lawful authorization and release)
  • Do not ignore potential red flags in an applicant’s history (e.g. frequently changing jobs)
  • Ensure your employment ads are lawful and accurate
  • Plan job interviews to identify the right person for the job and to weed-out all others


Are your independent contractors truly independent — or might the Department of Labor (DOL) consider them employees?

Do your salaried, exempt employees truly fall under one of the Fair Labor Standard Act’s (FLSA) exemptions (e.g. administrative, executive, professional, etc.)?  Are your written job responsibility documents consistent with your classification?


Are you following these eight steps to effectively administering discipline?:

  • Act promptly
  • Do not discipline on the spot
  • Know the Company’s rules of conduct, policies, and procedures
  • Investigate, investigate, investigate
  • Give the accused a chance to tell his or her story
  • Be consistent in determining the appropriate discipline
  • Inform the employee as to what will happen if there are further instances of misconduct
  • Document investigations and disciplinary discussions

Perfection is not of this world.  Courts and judges recognize this fact.  Thus, if an employer terminates or disciplines an employee based on a good faith, reasonable belief of misconduct, in most cases the employer will obtain a defense verdict even if it is  determined the employer was mistaken.

The key, therefore, is for employers to be able to prove that they had a good faith, reasonable belief when they disciplined or terminated the employee.  This is primarily accomplished by conducting a prompt and thorough investigation when misconduct comes to light, and by maintaining a solid documentary record of the investigation and evidence proving the misconduct.


In my experience, the number one cause of lawsuits and government audits and investigations is poor employee morale and/or poor lines of communication within a company.

Constantly assess employee morale.  Always ensure employees — from janitors to supervisors — are heard and do not fear retaliation for bringing issues to management.


Various laws protect sick, injured, and/or pregnant employees.  Yet, on the other hand, employers have a business to run and need to count on employees to come to work.

When an employee’s need for time off conflicts with an employer’s need to run its business, oftentimes a difficult decision must be made.  When such a decision involves disciplining or terminating an employee, consult counsel to ensure that there is no violation of, for example, the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the Pregnancy in Discrimination Act (PDA).

The next time your business faces a potential leave of absence issue, review the following list to see if any of the following may apply:


  • FMLA
  • ADA
  • PDA
  • Military
  • Jury duty
  • Voting
  • Possible religious accommodation
  • Crime victims (under certain circumstances)


  • Vacation/PTO
  • Bereavement
  • Sick leave (non-ADA, FMLA, etc.)
  • Maternity/paternity (non-ADA, FMLA, etc.)
  • Holiday
  • Personal reasons

In sum, a little thoughtfulness goes a long way in avoiding discrimination claims brought by sick, injured, and/or pregnant employees.


The law protects those who protect their confidential and proprietary information.  Therefore, both your company handbook and non-compete/non-solicitation agreement should contain specific and detailed language prohibiting the improper use or dissemination of the company’s confidential and proprietary information.


Monitoring computers and other devices is an effective way to (1) discourage employee theft and goofing off and (2) uncover theft or other misconduct as it is occurring and/or after it has happened.   Employee monitoring thus reduces the chance for unfair competition and, if it occurs, makes it easier to establish the misconduct.

Computer forensics experts can determine if an employee connected a device such as a removable USB storage device or if a CD was created which contained confidential data.  A true expert can even identify the make, model and serial number of the removable storage device, when it was first connected and the last time it was used.  The expert can also identify which data was deleted and often times can even recover the information. Printing a document also leaves a trail which can be uncovered and can provide key information about the theft itself. Frequently, websites visited by an employee will bring context to the theft or even constitute direct evidence.


A business can always find a purported “reason” to fire an employee. Before that decision is made, however, the business should consider:

  • What is the employee’s past work record? If it is good, then the termination may be deemed pretext.
  • Is there any record of the employee complaining or uncovering improper conduct by the company? If so, the risk of a pretext finding rises dramatically.
  • What are the chances the now ex-employee will bring a lawsuit against the company? What sort of claims can be brought and what is the company’s potential exposure?
  • How will the ex-employee appear before a jury? Does he or she have an exemplary past?
  • How will your own employees and ex-employees appear? Do they uniformly support your position or will some provide evidence against you?
  • What will it cost in dollars, time, and bad publicity to defend a lawsuit?
  • Can there be collateral damage (lost contracts/clients, penalties, etc.)?

Failing to identify and correctly answer these questions can result in a bad 2016 — and beyond.


The tips listed above will help ensure that your business has a solid 2016.  Put the proper systems in place, execute consistently, and your business needn’t fear getting crushed in Miyagi’s middle lane.

Art Bourque has guided businesses and individuals in various employment law matters, and provides seminars and management training on the topics in this article.  Contact Mr. Bourque with any questions regarding these or other employment or human resource issues.  In the interim, enjoy this relevant snippet from The Karate Kid — and may it all come together for you in 2016: