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Here are two killer questions: one that a prospective employer should ask, and one for a prospective employee. First, the employer's question:"What have you done recently to improve yourself?" Jobs, especially legal jobs, are now precious opportunites. They should not be wasted on those who never think of getting better. Because those who do not care about improving themselves, that is, their own bottom line, will never really help improve the employer's bottom line.
And for the employee? Here it goes:"What does it take to be successful at this company?" It is a question that shows forethought, indicates a curiousity based mind-set, and shines a light on whether there is a congruent fit between applicant and the employer.
Chris Rock, the genuis comedian, does a riff on dating along the lines of, "The woman you marry is not the woman you date; oh no, the woman you date is the ambassador of the woman you marry!" Same with hiring. These questions cut through the white noise of ambassador status. Try them.
"Glaxo to Stop Paying Doctors To Boost Drugs" by Katie Thomas was a headline in the December 17, 2013 issue of The New York Times. Interesting but, according to the piece, not the only news. Glaxo is also changing the compensation system for its sales representatives. Gone will be compensation based on the number of prescriptions doctors write. In will be compensation based on technical knowledge, the quality of service provided to clients to improve patient care, and the company's business performance.
The articles notes that this is a radical change. Does the old system sound familar? Sure, it is just a variation on the billlable hour, where compesation rewards are parceled out based not on client care, but on brute numbers. A system where a lawyer is worse off settling a case to the client's satisfaction and losing the hours than not settling and getting the hours.
Someday the profession will change, the model more closely approximating a Glaxo model or those of professional consulting firms. But the system will not go easily. Entrenced power never does.
Until then, take two aspirin and call us in the morning.
The mediation is over. Everyone has agreed on the numbers, and the lawyers are writing up the terms. But the employer wants the employee to agree not to file a charge of discrimination at the EEOC. The plaintiff’s side balks and says that this provision violates the law. Say what?
Well, my experience with the EEOC is that it considers insisting upon such a provision arguably to constitute unlawful retaliation. What to do, what to do?
This following language works: “Nothing in this agreement prohibits employee from filing a charge of discrimination with the EEOC or participating in an EEOC investigation; provided, however, that by signing this agreement, employee waives any right to seek or accept any monetary or other relief of any nature whatsoever in connection with any such charge, investigation or proceeding.”
Try using this; it comes in handy.
In a year-end blockbuster, the U.S. Court of Appeals for the Fifth Circuit changed the law on what constitutes a sexually hostile work environment and suggested a different way to analyze retaliation claims for protesting such environments. Read all about it in Royal v. CCC&R Tres Arboles LLC, issued on Nov. 21.
The Fifth Circuit sketched out the facts in the case, which the district court had decided on summary judgment: The plaintiff worked at the leasing office of an apartment complex. Her career there spanned all of three days. She complained to her management that, over the course her brief employment, two male maintenance employees would come to her desk in a very small office and sniff her. Each man did so 12 times. She alleged that she complained, but her manager told her “something along the lines of ‘you know how men are like when they get out of prison.’”
At a meeting of all employees, Royal again complained about the conduct, which included smelling her over her head and when she exited the restroom. In response one man allegedly said at the meeting that he had a medical condition and the other that he “needed to get a release.”
Royal was fired for “inappropriate behavior in the workplace” which, upon questioning at oral arguments, turned out to be slapping flies with excessive force and slamming a door. The trial court granted summary judgment for the employer, but the Fifth Circuit reversed.
The big news is why. First, the panel disavowed two of its decisions on which I have been relying for years: Shepherd v. Comptroller of Public Accounts of the State of Texas (1999) and Hockman v. Westward Communications LLC (2004).
Those cases suggested that the lack of physical contact warranted dismissal. But here is the Fifth Circuit: “Certainly, lack of physical contact is a factor to consider. But it is hardly dispositive.”
That was especially true here, where the court noted that the alleged conduct occurred in a small space and allegedly was engaged in by men who had been in prison. Such conduct, according to the panel, could be seen as “physically threatening.”
Well, Shepherd and Hockman, we had a good ride for a long time. I'll miss you both.
The panel also drove a stake in the heart of the argument that, to establish a hostile environment, a plaintiff must show that the alleged conduct was both “severe and pervasive.” R.I.P that argument.
The panel tossed out a footnote. (Why is the good stuff always in the footnotes, like the best lobster meat lies deep in the claws?) In footnote No. 2, the Fifth Circuit suggested that, in retaliation cases, the thing that the plaintiff protests must actually violate the law and not merely involve a reasonable belief that the law was violated. One door closes, another opens.
In a case that’s troubling for Texas employers but exciting for employees, the Fourth Court of Appeals in San Antonio affirmed a big payday judgment for a plaintiff in a retaliation case under the Texas Commission on Human Rights Act (TCHRA). It is troubling because the facts are mundane.
The Oct. 23 opinion in San Antonio Water System v. Nicholas tells the story: A female paralegal for the San Antonio Water System mentioned to the company GC that the vice president of customer service and communications/external relations department had asked her to lunch and she felt uncomfortable. The CEO got involved, human resources employee (and later plaintiff) Debra Nicholas was asked to investigate, and she and the CEO met with the VP. The CEO told the VP to stop asking out female employees and Nicholas chimed in, “[Y]ou need to listen to Dave [the CEO] because what's he's telling you is for your own good.” Fast-forward three years. Nicolas is placed in that very same VP’s chain of command, and she’s let go in a company reorganization.
Can you guess what happened next? That's right: she sued for retaliation, alleging that she engaged in protected activity by agreeing with the CEO and the VP harbored a grudge, then struck back when he had the chance—because, apparently, revenge is a dish best served cold.
In affirming the judgment for Nicolas, the Fourth Court held:
The good news just kept rolling in for the plaintiff. The opinion states that Nicholas was awarded $759,007.00 for lost future wages and benefits.(It is not clear from the opinion why the jury made this determination which, as an equitable one, should be made by the court.) The appeals court concluded that front pay is not subject to the $300,000 damages cap in the TCHRA.
I'll bet a vodka martini that the Texas Supreme Court will accept this case. The blog will keep you posted.
In Dewan, et al. v. Walia, the U.S. Court of Appeals for the Fourth Circuit reversed a trial court's refusal to set aside an arbitration award because the arbitrator demonstrated a "manifest disregard" for the law. How so?
The plaintiff had signed a release of all claims against his employer, which barred any subsequent claim by the employee and in which he promised never to file a "lawsuit" against the employer. The release also included a noncompetition provision. Any disputes were to be resolved through arbitration.
Later the employer filed a claim with the American Arbitration Association, claiming the employee violated the noncompete provision. The employee counterclaimed, and the arbitrator ruled in his favor.
What about the release? The arbitrator ruled that the release only extinguished the employee's common law and state and federal claims if the employee brought them in state or federal court—but not if the employee brought them in an arbitral forum.
This was too much for the Fourth Circuit. On Oct. 28, the judges essentially said the employee made a deal with the release and must be held to it. So, the appeals court, by a 2-1 vote, held that the release was valid and the counterclaims could therefore not support an award on behalf of the employee, and it vacated the award.
The dissent is what interests me. Here is the crux of its reasoning: "Further, I cannot agree with the majority's statement that the release agreement ‘could not be more expansive, clear, or unambiguous.’ … Indeed, the release agreement could have ‘release[d]’ and ‘discharge[d]’ all claims and disputes not just in the form of ‘lawsuit[s]’ or ‘action[s]’ but ‘in any and all forms and in any and all fora.’ … Or it could have made clear that Walia [the employee] ‘promised never to file a lawsuit ... or arbitration or any other form of dispute for adjudication in any forum whatsoever.’ But it did not.”
The lesson: Employers should expand their releases in conformity with the dissent’s point. There is no such thing as being too careful.
Do our environments affect our honesty? Yes, according to research conducted at MIT's Sloan School of Management and described in an article in the November 2013 issue of the Harvard Business Review, "Big Chairs Create Big Cheats" (sounds like a tabloid headline.)
The setup was to place some test subjects into larger work spaces with bigger desks and chairs, where the subject could stretch out and expand their posture. But other subjects were placed in more a confined space where they could not take an expansive posture, but were cramped and restricted in movement. Then the rub: All subjects were overpaid for their participation in the study.
How—if at all—would the surroundings affect whether the subject kept the extra do re mi or returned it? Turns out, a lot. A whopping 78 percent of those who could adopt an expansive posture kept the extra and unearned money, while only a measly 38 percent in the cramped posture kept the money.
Wait, there's more. Does the size of the driver's seat in a car effect whether the driver will park illegally? Yes—not by a little, but by a lot. When the size of the driver's seat increased by one standard deviation from the mean, the probability that the car would be doubled parked increased from 51 percent to 71 percent.
Bottom line: We make our spaces, then our spaces make us. Maybe there is a good argument for law firms giving all lawyers standard office sizes. Corner office? R.I.P. Full disclosure: Here’s my office.
The best lawyers are empathetic lawyers. How to learn the skill? Read fiction, according to an Oct. 4 article in The New York Times, "For Better Social Skills, Scientists Recommend a Little Checkov." According to the article, recent studies show that, in contrast to popular fiction, “literary fiction often leaves more to the imagination, encouraging readers to make inferences about characters and be sensitive to emotional nuance and complexity."
Not convinced? One test had a group read excerpts from award-winning literary fiction and another read excerpts from Smithsonian Magazine. Each group then viewed photographs of eyes and was asked to pick the adjective best describing the emotion that each photo showed. Result: The first group scored well, the second did not.
Researchers also did the tests with one group reading popular fiction, while the other read literary fiction. Again, the second group did better. Why? Popular fiction is driven by plot, with interchangeable characters. Literary fiction, by contrast, engages the reader with a character, leading to more empathy and understanding of other lives.
Looking for a suggestion for something to read to boost your empathy quotient? Check out Paul Auster's "Sunset Park," a beautiful examination of what it means to be human. Or, of course, there’s always Shakespeare, especially "Othello" and "The Merchant of Venice."
To reading! To the empathetic lawyer!