Work Matters

Thanksgiving: first in Texas

Happy Thanksgiving to all lurkers and posters. Did you know the first Thanksgiving was celebrated in Texas? It is true. According to the “Texas Almanac 2008-2009,” Juan de Onate led an expedition into what is now Texas. The group had many close calls but survived, and they gave thanks. One of their number recorded the following in his diary:

We built a great bonfire and roasted the meat and fish, and then all (Spaniards and natives) sat down to a repast . . . We were happy that our trials were over, as happy as were the passengers in the Ark when they saw the dove returning with the olive branch in his beak, bringing tidings that the deluge had subsided.

Sooner or later, the dove arrives.

"Perfectionism is the voice of the oppressor" -- Anne LaMott

Reading Sunday's The New York Times, a piece by Alice E. Domar struck me. She is the author of "Be Happy Without Being Perfect" and writes in the Times that employees, in these tough times, often think they need to do perfect work to please the boss. Her take? Not so fast; often, perfect is the enemy. After all, she reasons, no boss wants a perfect product if it is late or turned in so close to deadline that there is no time for discussion. (Lawyers, especially new ones, seem to think the partners want it perfect. I'd rather have it good enough -- especially if we are on a tight deadline, i.e. seeking injunctive relief.) Anyway, Domar says that employees need to ask themselves the following to see if they have perfectionistic work tendencies:

• Do you tell yourself, "The only way to get the job done right is my way"?
• Do you say to yourself, "I am surrounded by idiots"?
• Do you think, "If I ask for clarification from my boss, he/she will think I am incompetent"?

If the answers are "yes," you may be seeking perfection -- but at the risk of losing your job. So what's the cure? The piece sets out several. Here's the one I really like: Understand that "no" is a complete sentence (credit to Domar's colleague Dr. Janet Taylor for that gem). Too often, we try to please and impress everyone and end up with too much to do. Her final piece of advice: "Try letting go a little at a time. Remember: Practice makes perfect." Ha. Good one. Alice

Buddhist philosophy offers guidance for showing genuine appreciation

 I have posted on how best to show appreciation to others in the workplace but have yet to talk about how we get from intending to do so to actual doing it. So when I read a passage from "Light Comes Through: Buddhist Teachings on Awakening to Our Natural Intelligence" by Dzigar Kongtrul, I saw one way of doing so. "The truth is that we do not possess our attributes. Everything in our lives arises from causes and conditions; in time, causes and conditions will take everything away. No one is truly self-made from the start. So many factors contribute to who we are; we are not a closed system. We cannot hold a position without the support of others." Kongtrul goes on to talk about how this insight is not enough, because, after all, we are all (each of us) too human. His advice: "So we need to genuinely recognize the contributions to others in our lives, not by simply thinking 'Oh, yes, these people have contributed, but it is I who have pulled it all together.'  Genuine appreciation is not Hollywood-style appreciation. It's not standing up at the Academy Awards and saying 'I'd like to thank my director, my producer,' but secretly thinking, 'Wow, me! I'm the star !' Appreciation has to be genuine, from within." Isn't that the truth?    

Prepare for more ADA claims

I just moderated a Web cast for the State Bar on the amendments to the Americans with Disabilities Act. Here are a few thumbed-out thoughts generated by the panel.

1. 1. The amendments may be retroactive and apply to pending cases. There is some authority that when Congress enacts a law that rejects a Supreme Court decision, as here, then the new law applies retroactively. We should get decisions on this early in 2009.
2. 2. Recall that the amendments go out of their way to expand who is considered disabled. Some estimates put the number as high as 50 million. In fact, the amendments spell out that Congress does not want the courts to spend a lot of time on this issue. What does this mean tactically? Plaintiffs will now file motions for partial summary judgment, asking the court -- should the employer fight it -- to find ADA disability status.
3. The fight will now be over not who is disabled (which was very hard to prove pre-amendments) but on whether the employer satisfied its duty to engage in an interactive process to accommodate the disability. Congress says that in the amendments.
4. Because the amendments will cover so many seemingly trivial impairments (sleep apnea or an enlarged prostate), employers will be dismissive: "Don't bother me with this minor complaint; it's not serious like cancer," etc.). That would be a mistake.
5. An employer can use the interactive process as its friend in a trial if it it has done what the law calls for and the employee has not. "This is a two way street ladies and gentlemen of the jury. We upheld our part, but the employee did not uphold his part (not providing medical information or insisting on just one type of accommodation)." Jurors get that: Fair is fair.
6. Finally, let's talk retaliation. There was some disagreement on this. I think that a retal claim will be easier to make. Say a supervisor believes that the employer is discriminating against a person with a disability and says so. She gets fired. Well, to state a retal claim a person must show that what she was protesting is at least within spitting distance is an unlawful practice. Because there will soon be a very low threshold for what is a disability, it will be easier to engage in protected activity.

    Well, that's it. We all agreed that 2009 will see a big, big increase in ADA claims.  Get ready.

EFCA reverses incentives in post-card-check contract negotiations

Interesting article in Sunday’s issue of The Dallas Morning News. The gist: Passage of the Employee Free Choice Act will increase union organizing efforts in the Lone Star State. (More thoughts on EFCA swirl in my podcast and my Work Matters print column.) Recall that EFCA eliminates the secret ballot, which was a yes-or-no vote on whether employees want union representation. The bill replaces that vote with employer recognition of a union when a majority of employees sign cards saying they want it. Then, if the employer and the union can't agree on a contract within 120 days of union certification, a panel of arbitrators will impose the terms of a two-year contract. Trust me, these are major changes.
•     Thought No. 1: The Dems have 58 votes for passage of EFCA in the Senate. That’s solid. Recall that they need 60 to break a filibuster. Alaska is still out (although the Dem is now ahead), and Georgia's runoff is in a few weeks. And a Republican, Arlen Specter, supports the bill. Upshot? No filibuster. The Senate will pass EFCA.
•    Thought No. 2: Yes, EFCA will pass the Senate and breeze through the House, but what will be its content? I think President-Elect Barack Obama is too smart to get tripped up in his first 100 days to get tripped up on elimination of the secret ballot. The Morning News piece states that the president-elect has taken all references to the bill off his Web site. Hmmm. A guess: The bill passes but requires a secret-ballot election with seven days of a union asking for it. The result will be more union wins.
•    Thought No. 3: The unions will put up a fight on the secret ballot but won't really care. Why? Now, on 58 percent of union wins on secret ballots result in a contract. The rest of the time, the employer uses the negotiating process to wear the union out. The gem of EFCA for unions is that they always, always, always get a contract. Sweet.
•    Thought No.4: The Morning News piece quotes a union organizer who notes that young health-care and hospitality workers who are Latina aged 18 to 35 will be a cohort favoring unions. To borrow a military phrase, they are a target-rich environment. And I agree. A survey by the Peter Hart Group from 2006 found that the highest approval ratings (71 percent) for unions were among those 18-34 with incomes of less than $40,000 a year, regardless of race or ethnicity. And young workers will not let their employers treat them like their parents' employers treated the older generation. They think Corporate America betrayed their parents, and they will not blindly give their loyalty to it. Employers must find ways to bond with this cohort. If not, they will look for a better option. As the classic country and western song, "Lookin' for Love in All the Wrong Places," goes, "I turned to a stranger, just like a friend."
•    Thought No. 5: Take a look at this month's Harvard Business Review, "Supervisor Work/Life Training Gets Results," by Ellen Ernst Kossek and Leslie B. Hammer. The big idea? Employees appreciate supervisors who understand that sometimes they need to leave work at 3 p.m. instead of 4:30 to go to Sally's baseball game or Joe's music recital. If they can't leave early, they would like the supervisor at least to explain why. Let me tell you: Unions get a foothold not because the worker down the street makes a dollar more but because they feel dissed by the boss or believe the boss does not take time to understand the work/life balance. If an employee feels a boss is supportive -- even if the boss can't give them what they want -- they are less likely to organize a union.
•    Thought No. 6: Employers must start to think different from a legal perspective if EFCA passes. Now it is the union that wants to get a contract ASAP and the employer who does not. With the EFCA, the poles are reversed. The employer only has 120 days to get its deal before arbitrators impose one. So, post-EFCA, employers will want to be the ones speeding up the bargaining process and, if the union drags it out, to file unfair labor practices charges for refusing to bargain in good faith.
    I quizzed some acquaintances in their late twenties on whether they thought people in their age cohort at least would be open to the notion of belonging to a union. Both are professionals. Their answer: Sure, people of our generation are open to things our parents would shut down ASAP

Etiquette in a bad job market

Social Qs, a column in the Sunday New York Times by Philip Galanes,takes questions from readers. Here is one: "I know a fair number of people who work for the firms that are imploding on Wall Street. When I see them, should I ignore the issue or say something like: 'I'm sorry things are so bad at your company. It must be stressful for you'?" That's a good question, especially now that layoffs are hitting firms and hitting them hard. Galanes' advice is to look at the conversation contextually: Is the person a friend or a frenemie? If the laid-off worker is a friend, raise the issue yourself, but don't bring it up in front of a spouse or children. Trust me, that works. My old law firm did a Titanic in 2001. Those were tough times. But I never have forgotten my friends who raised the issue with me when it would have been difficult for me to broach the subject with them. People going through tough work matters feel exposed and vulnerable. When others acknowledged the issue, I thought of it as a welcome relief, not as an impolite intrusion.

How to lay people off

I'm reading an interesting book, "Reality Check:The Irreverent Guide to Outsmarting, Outmanaging, and Outmarketing Your Competition." It's Guy Kawasaki's latest on business, with a focus on startups. But the book is target rich on Work Matters issues. Chapter 77 deals with "The Art of Laying People Off" -- all four wise pages and 12 bullet point of it. A sample:

• Cut deep and cut once. This is good advice. The drip, drip, drip reduction in force just serves to suck the life out of the employees. If things turn around, Kawasaki points out that managers have the "high quality problem of having to rehire."
• Move fast. People talk. We are social animals who will yak away. The result is that, once a company even starts to think about layoffs, word leaks. It reminds me of the Shakespeare line, "tis done, tis best done quickly."
• Share the pain, but don't ask for pity. Kawasaki notes that the bosses also should take a hit, even if it's symbolic, to show solidarity with the workers. Don't take a bonus. Move to a smaller office. Whatever. He tells managers who do the firing not to whine; after all, they are keeping their jobs. I don't know about that advice. Survivors need our love.
• Show people the door. He advises letting people go on Friday (the weekend lets them decompress), then allowing them to finish the day or complete the next week. Maybe that flies in Silicon Valley but not in my world. I say lower the boom on Monday. That gives people the rest of the week to look for a job. Let them go on Friday , with business closed on the weekend, and they end up looking for a lawyer. But, other than the week of gracious easing-out, don't let those who have been fired stick around. They can rip off company stuff (I'm not talking yellow tablets here -- important stuff like client lists, etc.). Plus, they remind the survivors of how vulnerable they are.
• Give minimal severance.I think this advice depends on the company. But if managers do offer a month or a couple of weeks of severance, they should forget asking the employees to sign a release. That just angers the employees. And remember, a rejected offer of a release can come into evidence at a subsequent trial.
• Don't hide in your office. His final point is excellent. The temptation for a manager is to seek shelter post-layoff. Don't. Kawasaki observes that the remaining employees need to see the bosses talking, working, walking the halls and generally moving the company forward.

It's a great book and even has a chapter on "The Top Sixteen Lies of Lawyers." More on that later.

The day after the day after

It's over. And that feels good. The campaign taught us several Work Matters lessons. Here goes.

• No. 1: Sarah Palin blaming reveals the fundamental attribution bias.This cognitive bias tells us that when something goes bad, we search for the one reason it did. Our minds want to organize what is, basically, a disorganized world. As the novelist Tom Clancy says, "The difference between fiction and real life is that fiction must make sense." So I listened to the radio talk shows and the bloviating pundits the last two days, and they all seem to want to blame Palin for the loss. That's the fundamental attribution bias in action. The same thing happens in employment law. Something goes wrong at work, so someone must be responsible -- and thus disciplined or terminated. Find that employee and all will be well. No, it won't. Most issues reflect systemic problems, not individual ones -- in politics or at work.
• No. 2: Trust the good data. Dewey v. Truman. Nice story. Solid narrative. Won't ever happen again. The polls, when done right, are accurate. Pew and Rasmussen nailed the final result. Nate Silver of the FiveThirtyEight Web site did as well. Listening to the conservative talk shows driving to work, driving home and before turning the lights out, you'd think they lived in an alternate universe, a la "The Twilight Zone." It was all over for McCain/Palin a month ago. As John Adams said in defense of British soldiers, "Facts are stubborn things." While inconvenient, they are still real. The same, again, is true with employment law. Jury consultants I have worked with over the years use focus groups. When well picked and given both good and bad facts -- the biggest mistake employers make is to be drinking the Kool-Aid of their own case when presenting to a focus group -- they give a pretty accurate result of what will happen if you go to trial. Believe the data.
• No. 3:  Use your own story. Don't hijack the others side's. A few days after Palin was named as the veep choice, I blogged on it, saying it was a persuasion mistake. Why? Obama's narrative was change. Trying to hop on the change wagon with Palin"s selection only reconfirms the other side's narrative, it did not create McCain's own. Same with employment law jury trials. I have seen employers, when getting up to do their opening, rebut the plaintiff's opening instead of creating their own reality. Again, rebutting the other side's story only serves to have the jury hear the plaintiffs version twice and your version once(and garbed with the plaintiff's frames at that).
• No. 4: It's not about you, it's about them.John McCain's campaign stressed, over and over again, his war record. To do so made the campaign of persuasion about him, not about them (the voters). Obama always made it about the other, not about him. Am I saying that personal stories have no place in a campaign? No. But the personal story must be something that they can identify with. Most have never been to war, but many were raised in poorer families, struggled to do well, and overcame the obstacles along the way. An archetype. Look at our current president. His narrative was redemption: I drank. I led a wasteful life. But I overcame it, surmounted the obstacles. Another archetype. Same with a trial. Back in the mid-1980, I tried an age case. The employer's narrative: We lost a lot of money last year, and to maintain an acceptable level of profitability as a publicly traded company, we had to let a lot of employees go. All true. But the jury cared about none of them. Zero. Can you change the facts? No, but you can change the story. So instead, say, "We needed to do a reduction in force, but it was done fairly and done to try and keep the best employees." A juror gets that.
• No. 5. Pick a story. Stay with it. Don't pile on.Obama tinkered with his message. It morphed from change-we-can-believe-in to change-we-need. Fine tuning is fine. Constant changing is not nor is sending several messages at once. Obama pals around with terrorists. He is a Socialist. He can't be trusted, because he is a celebrity. Piling on only confuses people, when what they want is clarity. I have seen employers actually change stories in a trial:"We fired him, because he was a poor performer" becomes "Yes, and we also think he was a thief." I actually read that in a trial transcript where I was hired to do the appeal. The worst is when an employer, in responding to the Equal Employment Opportunity Commission's investigation, decides that if one reason for an adverse action is good, then five or six are better. It often turns out that there was only one real reason, but the employer, in responding, was afraid not to raise something. (Here is a tip: when responding, get the facts, and have those who made the decision at issue and who will need to testify about it at trial, read and approve the content of the EEOC response. If the response is wrong, the plaintiff will use it at trial.)
  

That's about it. Your thoughts? In any event, congratulations and best wishes to our president-elect and his family.

Getting through the tough times

The country is going through some tough times. Employees are affected. What should management do? Over the weekend, while eating at my regular breakfast place near White Rock lake, I ran across a couple of interesting pieces. The Monday issue of "Investors Business Daily" published "Channel Worker Worries Into Constructive Action," Morey Stettner's interview of Bill Treasurer, author of "Courage Goes to Work." His advice:

• Employees watch how the bosses act, especially when business is bad. Boss conduct is just not watched but amplified. So, bosses need to project positive emotions, not negative ones;
• Be transparent. Share plans for dealing with business issues. Explain why the company will pull through;
• Set incentives to get workers to pay attention to the job at hand; and
• Be honest about the pickle you are all in together, but assert a story with a good outcome, not a bad one. People will, I think, conform their conduct to a compelling story. It's up to a company to frame the story.

On this last point on storytelling, I suggest "The Storytelling Factor," Annette Simmons' excellent book. By the way, the most interesting advice I ever read on taking a company and its employees though bad times was in "Good to Great," the Jim Collins work on why some companies survive, and others don't. He quotes Admiral James Stockdale, an American hero who was the highest ranking POW in North Vietnam. He asked him how he survived and why others either did not or were broken when they came out of their horrible captivity. Stockdale said that the ones who did not make it thought they'd be out by Christmas, and freedom did not come, or by Easter, and it did not come. Stockdale said he got through it by embracing what Collins came to call the Stockdale Paradox: taking a raw and unfiltered look at the world of pain you are in but, at the same time, always believing that something will break your way and you will see a turn around. I hope we as a country don't have to test out the viability of the Stockdale Paradox.

Choosing day 2008

Here are a few words from one of our greatest poets on today, choosing day.

ELECTION DAY, NOVEMBER, 1884
(Walt Whitman)

If I should need to name, O Western World,
your powerfulest scene and show,
‘Twould not be you, Niagara ― nor you, ye limitless prairies ―
nor your huge rifts of canyons, Colorado,
Nor you, Yosemite ― nor Yellowstone,
with all its spasmic geyserloops ascending to the skies,
appearing and disappearing,
Nor Oregon’s white cones ―
nor Huron’s belt of mighty lakes ―
nor Mississippi’s stream:
This seething hemisphere’s humanity, as now, I’d name ―
the still small voice vibrating ― America’s choosing day.