Work Matters

Gauging the strength of beliefs

I have blogged about the challenges facing advocates when group decision-making is in play. What's to be done? In Cass R. Sunstein’s book, “On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done,” he notes that when a person is dug into a position, it is best to have a contrary argument delivered by people with whom he closely identifies. Exhibit A: Colin Powell, a Republican, endorsing then-Sen. Barack Obama for president. Sunstein also mentions that people will listen to both sides if they do not have a pre-wired belief that one is right and the other wrong. How can a lawyer figure out the strength of a belief? Try this in voir dire: Ask the key question, but then say, "Can I have a show of hands on whether you strongly agree, agree, feel neutral, disagree or strongly disagree?" That gives a sense of just how strongly a potential juror holds a belief. “On Rumors” is a good book and only 88 pages — well worth the time.

How "Defending Your Life" can teach lessons for lawyers

I had breakfast with a friend of mine over the weekend, and over oatmeal (OK, to be honest, he had oatmeal, and I had eggs and several pieces of crispy bacon) we talked about movies that teach lawyers to be better lawyers, a topic I have written on before. We focused on one movie in particular that he had never heard of and I had not written on, "Defending Your Life" by and starring Albert Brooks. Brooks plays a guy on the fast track who crashes his new BMW into a bus. He dies and goes to Judgment City, where he is assigned a lawyer, played by Rip Torn. The issue: Will he be allowed to move on to the next level? Torn tells him there will be an examination of his life to see if he does. Paraphrasing a distressed Brooks, "You mean my life will be placed under a microscope, dissected and examined in a trial?" Paraphrasing Torn, "Well, first of all, we don't like to call it a trial, and second of all, yes." I always laugh when I think of that scene. I also use it sometimes with clients who are deciding whether to take an employment action. We laugh, but it imparts a key message to them: We need to take our time, think the decision through and be ready to justify it, just like Brooks had to do in the movie. Did he make the next level? Watch the movie. It is one every lawyer should see. 

Finding a North Star for mental anguish damages

Anyone looking at the issue of mental anguish damages in Title VII cases needs to read a Nov. 2 decision from the U.S. District Court for the Northern District of Mississippi, Hardy v. City of Tupelo. Cliff Hardy worked for the Tupelo, Miss., police department. He was a captain and is white. He spoke out against the demotion of a fellow officer, who is black. Hardy was later removed from his position in internal affairs and reassigned to the police force of the Tupelo Housing Authority. Shortly thereafter, he retired. He sued his former employer for, among other claims, retaliation under Title VII. The jury gave him $200,000 in mental anguish damages. The city asked for this amount to be reduced, and the court refused. Here’s what’s interesting: How should a court analyze an employer's request? The court observed that the 5th U.S. Circuit Court of Appeals follows the maximum-recovery rule, in which the court must "decline to reduce damages where the amount is not disproportionate to at least one factually similar case from the relevant jurisdiction." So step one: What was Hardy's evidence of mental anguish? Hardy testifed he felt like he was "going crazy"; his job meant a lot to him, and he was losing it; and he couldn't believe that his "world" had turned out as it did. Both his wife and a clinical psychologist testified that he suffered from depression, felt his life was in danger from other police officers, and felt degraded and humiliated. Step two: What is a similar case? The court looked at Tureaud v. Grambling State University (I've blogged on the case before) and said the evidence was similar, that that case would be its North Star, and that it would not reduce the damage award. True, both cases involved police officers. But it is, I think, the quality, degree and detail of evidence that counts. (By the way, the court provides an exhaustive list of mental anguish damages cases that should be helpful to courts and lawyers alike). The court says that $140,000 was awarded to the plaintiff in Tureaud and that the $200,000 here was in line with the evidence in Tureaud. So the evidence was there to support and award, according to the court, and the maximum-recovery rule precluded remitting the amount.

Avoid the status quo bias

What is the art of lawyering? It is deciding what to leave out, not what to put in. One of my favorite articles from the The Harvard Business Review, "The Hidden Traps in Decision Making" by John S. Hammond, Ralph L. Keeney, and Howard Raiffa (September-October 1998) helps explain why. They discuss the status quo bias: People want to keep things the way they are. Why? "The source of the status quo trap lies deep within our psyches, in our desire to protect our egos from damage. Breaking from the status quo means taking action, and when we take action, we take responsibility thus opening ourselves to criticism and to regret." That's a great line from the article, and it is so true. As lawyers, we often do — not what is needed — but what others cannot criticize: We take the unneeded deposition, file the meritless motion, pile on the repetitive witness. Solutions to the status quo bias? The authors suggest the following:

• reminding yourself of your objectives and asking whether the status quo serves those goals;
  avoiding the trap of thinking the status quo is the only alternative;
• asking yourself whether you would pick the status quo if it weren’t already in place;
• querying whether there are several alternatives to the status quo; and
• refusing to default to the way things are because you are having a hard time picking the best alternative.

The famous line about jazz comes to mind: To paraphrase, it isn't the notes you play, it's the notes you leave out. Our world as lawyers has changed and changed forever. Maybe that's a good thing if it gets us back to what the art of lawyering is all about.

Points to ponder when filing responses to EEOC charges

I have seen a surge of EEOC filings lately. On a visit to one Texas EEOC office, there was a line at the door before the office opened, like people lining up for a rock concert. These are hard times for many of our fellow citizens. The economic crunch also means that more employers will be filing responses to EEOC charges. These responses are discoverable should a suit be filed, so here are a couple of points. First, they must be accurate. If an employer takes a position in litigation that is inconsistent with the EEOC response, things can get ugly. What's the cure? Have the people who made the decision at issue review the response before the employer submits it to the EEOC. And, make sure these folks understand that it means zero that a lawyer or an HR person wrote the response. The person who made the now-challenged decision is free to question, disagree, probe. As they say in the military, "Permission to speak freely." Second, don't pile on the reasons for, say, a termination. I see this so often: People are always afraid of leaving something out, so we throw everything in. Don't -- unless the facts and the decision-making process call for it. If an employer does throw everything in, and the piling up is just piling on, well, see the first point above. Finally, note in the response that it is based only on the allegations in the charge and the employer reserves the right, out of fairness, to respond to further information. Make it a couple of lines, not -- as I sometimes see -- three paragraphs, dense and useless.  

Civility in the workplace

I am thinking lately about civility in the workplace. I have blogged about it before. Common courtesy binds us together, but we don’t seem to care if we show it or not. I am reading "The Cost of Bad Behavior: How Incivility is Damaging Your Business and What to Do About It" from Christine Pearson and Christine Porath. There are many causes of on-the-job incivility, but the authors note that employment relationships are now transaction based; If your job is going to change, the author say employees ask themselves, why expend the energy to be polite and decent? After all, civility takes time. Today's colleague is tomorrow's competitor. Move on. A friend of mine said she told her bosses that her husband was very ill, he might lose his hearing and she would need to be away from work. I ran into her last month (she was picking up a pizza to go), and she said that they had never asked about him. Not a word. She apparently is just a fungible economic unit. Pearson and Porath note that the small things about civility matter and they matter a lot. They cite an experiment in which two groups were asked to unscramble words. The words in one group all related to politeness, while those in the second all related to rudeness. The subsequent conduct of the participants was monitored, and guess what? The "polite" word group acted politely, the "rude" word group acted rudely. The experiment primedthe groups to act a certain way. One final thought. Peggy Noonan wrote (I am paraphrasing here) that every day we live, we are writing our obits, for good or for bad. She says that someday, someone is going to sum up our lives.

Work Matters named to top 100 legal blog list

The ABA Journal's editors were good enough to name Work Matters to the ABA Journal Blawg 100 list of best legal blogs. I am honored. The blog, as followers may know, is only 14 months old -- a toddler in the blogging world. I can only hope it will grow up to be as good and useful and insightful as its 99 older brothers and sisters. Thanks to you readers for allowing me into your daily world. Your time is precious, and the fact that you share some of it with me means a lot. I will keep blogging; I hope you keep reading. And don't forget to vote!

Cutting off alleged continuing violations with prompt remedial action

Jelinda Stewart thought her boss was sexually harassing her starting in September 2003. She complained, and in October 2004 she was moved from under his supervision. But the world spins, things change and she found herself reporting to him again in February 2006. She claims the harassment started all over again upon his return as her supervisor. (What’s the line from the movies? "I'm ba-ack!") She sued for, among other things, a sexually hostile work environment. In Stewart v. Mississippi Transport Commission the 5th U.S. Circuit Court of Appeals held on Oct. 21 she could not rely upon the time-barred conduct that allegedly occurred from September 2003 through October 2004 to establish her claim because of the intervening event of Stewart being moved to work for a different supervisor. That move was a prompt remedial action to her complaint. Thus, there was not a continuing violation that would have made the time-barred conduct probative. One other thought: This was a 2-1 vote. The majority suggests that a sexually hostile work environment requires physical contact. The dissent was all over that, as well, and said that was not the law. I could see this going en banc. I will keep you posted.

Prevent people poaching by understanding Texas noncompetes

There’s an interesting piece in the December 2009 issue of the Harvard Business Review, "Poaching" by Don Moyer. The one-page article claims that in bad times, companies want to poach an employee from a competitor. After all, the would-be poaching company reasons, if an employee survived at the other company through layoffs and bad times, she must be good. Let’s grab her. Of course, this presumes facts not in evidence; some employees, like the sales guy with no sales, survive because they are buddies with someone high in management. But Moyer has a point, so I wanted to summarize the law of noncompetes in Texas. Here goes: Money can't buy a noncompete (this fact drives clients in other states bonkers). For 99 percent of the cases, the only consideration is giving the employee the company’s confidential information in exchange for the employee agreeing to the covenant. The employer says it needs the covenant because that is how the employer can protect the information it gave the employee. The employer must give the information during the term of employment. Methods to attack a covenant not to compete: 1. the information is not really confidential, i.e. the information is in the public domain or stale; 2. the employer gave the employee the information close to the day of the employee’s departure, and thus the consideration is a sham; 3. if the information truly is confidential, the covenant’s geographic scope is too broad and/or the temporal scope is too long, and ask the court to reform the agreement. If an employer seeks injunctive relief to enforce a covenant, its lawyer should not keep talking about retrospective harm, as much as client wants to and as good as it feels; instead, the lawyer should talk about prospective harm (get business plans for the future. loan documents, advertising and PR plans, hiring needs, etc. into the discovery plan). That is what a judge needs to hear to issue a temporary injunction and stop imminent harm and. That’s the scoop from 28 years of doing it.

Practice gratitude, during the holiday season and all year

I finished writing my new book on the FLSA a few weeks ago. As is the custom, I wrote an acknowledgment page. Before doing so, I re-read the one from my first book many years ago. I sounded a bit like one those Hollywood celebrities accepting an Oscar, parsing out bits of credit here and there to the supporting cast. The focus was, though, all on me. I wrote in the new book the simple truth: This book would not ever have been possible without the help of so many who gave so much. Most people think we own our talent, achievements or identity, but we don't. They are made up of what others give us. My Thanksgiving insight took me a while to get to, but as Justice Felix Frankfurter wrote in Henslee v. Union Planters National Bank & Trust Co., et al. (1949), "Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” All the rest is gravy. I hope you had a good Thanksgiving, and thanks for reading the blog.