Work Matters

Coffee shop owner's wisdom can help other interviewers

The New York Times on Saturday ran an interesting piece. Reporter Beth Slovic looks at a coffee shop in Portland that requires applicants to complete a five-page application, including 10 essay questions. The owner does so, because she wants baristas and bakers who are devoted and cheerful. Some of the questions:

• "What is the most important thing that you have ever learned, and how has it changed your life?"
• "What is something that you do on a regular basis to make the world a better place?"
• "What is one thing that you think would make Portland a better city?"

The owner's big idea: People will be spending less on coffee in these economic times; a business needs an edge, and that edge is people. I applaud her efforts. An interview is a dicey business at best. The interviewer talks about himself or herself, and the applicant directs all efforts to putting on the best (although not necessarily the real) front. Neither strategy really gets to the heart of the person. It reminds me of the Chris Rock joke: The woman you marry, well she's the real deal, and the woman you date, well, she's that woman's representative. I love that line.

Awaiting word on a retaliation case

The U.S. Supreme Court heard arguments in October in a perplexing case involving the anti-retaliation provisions of Title VII. Here's the scoop. A city government gets word that the guy in charge of employee relations is sexually harassing employees -- sort of a fox in the hen house. An investigation is launched, witnesses interviewed. An employee is quizzed, and boy did she give an earful to the investigation. Here is what she said the guy did to her: asked to see her breasts on numerous occasions; upon asking him what was up, he supposedly pressed his crotch against her window; and one time she asked how she could help him and he allegedly grabbed her head and pulled it to his crotch. Supposedly three other employees agree with her and later get fired. Her 30-year career gets tossed about 6 months after the interview, when she is fired after accusations surface against her of drug use and embezzlement. The subject of the investigation skates. No discipline. She sues for retaliation, saying she was fired for "opposing discrimination"(telling the investigator of what supposedly happened to her) and for "participating" in a "proceeding" under Title VII (he city’s internal investigation). I read over reports of the oral argument. Who knows what the court will do? But I have prediction. By a 5-4 vote the justices will say she opposed unlawful discrimination. It wasn't that she was just reporting the "facts" as to what she says occurred. She was offended by what she believed occurred and testified that she believed she was exercising her rights under federal law when she unloaded on the investigator. And this interpretation makes sense; after all, what is important is what is said to the employer and how the employees viewed it (just reporting the facts v. reporting them with a belief in illegality), not the forum in which the statements are disclosed. On the participation clause? Did she participate in a proceeding under Title VII? Well, not really. No EEOC charge had been filed. To say that an internal investigation is a "proceeding" is, well, a bridge too far. I predict a 5-4 vote on this issue in favor of the employer. Well, there you have it. Predictions made, results predicted. E-mail me if I turn out to be right – or wrong.

A portent of things to come

 Looks like Congresswoman Hilda Solis (pictured) will be the nominee for secretary of labor. She is currently serving her fifth term in the House, from a district in Los Angeles. She is the daughter of Mexican and Nicaraguan immigrants. According to Project Vote Smart, her voting record is 100 percent consistent with the interests of the AFL-CIO and the SEIU.  Check out her floor speech in support of EFCA; here is a portion:

I rise in strong support as a family member from a strong union background. My father was a shop steward for the Teamsters and my mother was a proud worker for the United Rubber Workers who worked tirelessly for 20 and 25 years. Without the help and protection we received in retirement benefits I know myself and my seven siblings would not be where we are today.

The Washingtonpost.com reports that AFL-CIO president John Sweeney , when informed of the choice, said "We're thrilled at the prospect of having Rep. Hilda Solis as our nation's next labor secretary. . . . We're confident that she will return to the labor department one of its core missions -- to defend workers' basic rights in our nation's workplaces." Of course, the DOL would not enforce EFCA. But this appointment foreshadows those a President Obama would appoint to the NLRB. How 2009 plays out will be interesting

An Employee Free Choice Act surprise under the tree

Here is one point that stood out after a recent State Bar of Texas Web cast on the Employee Free Choice Act. This little nugget has received scant attention amid the discussion over the EFCA's main provisions: card-check certification (no more secret ballot) and interest arbitration (a collective bargaining agreement imposed by an arbitrator). What’s the hidden secret? It’s mandatory injunctive relief. Now, for the most part, it’s discretionary whether the National Labor Relations Board seeks injunctive relief to stop what it considers an unfair labor practice. But under the EFCA, that will be the case no more. Seeking injunctive relief will be mandatory. So if the NLRB investigates an unfair labor practice charge (i.e. an employee fired for seeking to organize a union), and the board concludes the allegations have merit, then the NLRB must seek injunctive relief from a federal court to maintain the status quo until an administrative law judge can determine the case's ultimate merits. This will be one powerful enforcement mechanism. And, while people may question the wisdom of eliminating the secret ballot or of arbitration-imposed contracts, who -- with the Bernard Madoff scandal and the mortgage meltdown -- can question the value of vigorous enforcement and oversight? Welcome to the EFCA’s  hidden secret and a big surprise under the tree.

The lost week at the end of December: work v. vacation, paid v. unpaid

Interesting article in Sunday’s The New York Times, "Week 52: What Sense Does it Make?” It’s a piece by Alex Williams on work matters during the last week of the year. She says more employers are shutting down the last week or even two to save money. Employers require employees either to use vacation time and thus get paid or just forgo a check. (I have always thought it interesting that employers use the more palatable word of "furlough" for the latter. We all live in a cloud of euphemisms.) Some employees see it as a week to goof off at work. Others see it as a week to plan, plot and strategize for next year. And in a chilling paragraph: "This year, [employees] said with the economy spiraling downward, the traditional tedium may take on an ominous undertone. Does that silent telephone represent a brief reprieve from a harried schedule, or a reminder of deals evaporated, or clients or colleagues lost?" Yours truly isn't going anywhere during the last week of the year. Luckily, work has popped up from new or current clients in December's last weeks. I agree with Ann Shoket, quoted at article's end, who stayed at work during the "lost week" two years ago while most employees were off on vacation. She received a call about leaving her current employer (a magazine) to interview for the top dog slot elsewhere. She did, was offered the job, accepted it and left. Her observation, as quoted in the piece: "Things might have turned out very differently, if I'd had to put off that meeting because I was lounging at the beach in St. Maarten." Exactly -- although for me the lounging would have been at a generic resort in Cancun, but we are speaking the same language.

When is a supervisor not a supervisor?

The great Texas lawyer Percy Foreman reportedly said, "There are no loopholes in the law; the law is the law." Isn't that the truth? And it helped out Hewlett-Packard in beating back a suit that looked bad. A technician working for HP made the following claims about his supervisor, which the supervisor denied:

• Sometime after 9-11, the supervisor told the technician, "All of Asia should be smashed." The technicians is a French citizen of Indian ethnicity.
• The supervisor told the technician that people like him should be hanged from trees as African-Americans had and that college grads in the United States could not find jobs because people like him had taken them.
• When reviewing resumes, the supervisor looked for American-sounding names.

The technician ultimately was fired, sued and alleged a hostile work environment based on his national origin. The court tossed his claim, and the 7th U.S. Circuit Court of Appeals said it was right to do so. But why? Well, the supervisor, even though he told the technician what to do and how to do it and gave him his performance reviews, was not a "supervisor" for purposes of attaching liability to HP. The 7th Circuit said that an employer could be liable if the supervisor was really a supervisor but, under the law's loophole (oops, I mean the law) he was not. To quote the court: The supervisor did not hire or fire the technician, “and while he recommended disciplinary action, the record shows that human resources first had to conduct an investigation and issue a recommendation before any disciplinary action could be taken . . . directing work activities and recommending disciplinary action are not in and of themselves sufficient to make someone a supervisor under Title VII." So, if this guy was a supervisor under Title VII, HP could be vicariously liable. But he was not, and HP liability could thus only kick in if it was negligent in discovering or remedying the harassment. That's the standard used when the hostile environment is ginned up by a co-worker, which is what the supervisor really was. Since there was no evidence of that, HP was in the clear. Percy would have understood.

The answer to anger?

Here's an interesting piece from Harvard Business Publishing; it's on Marshall Goldsmith's Ask the Coach blog. He posted an answer to this question: "It's hard for me to keep my temper, even more so now with the global economic meltdown ! Do you have any suggestions on how I can stop from getting angry in the workplace?" Goldsmith suggests that getting angry is part of life and that it is our effort to justify it , rather than release it, that causes problems. How to release? Own the anger and then dismiss it. Say to yourself "I do not want this anger. I chose to be at peace instead." Buddhist teacher and writer Dzigar Kongtrul, in his book, "Light Comes Through: Buddhist Teachings on Awakening to Our Natural Intelligence," says that the problem with anger is that it feels good, at least temporarily, because it gives us a false sense of clarity. His take: "As it's said, 'anger comes in the guise of a friend' -- righteous and protective and with airtight logic." How to handle? Try "simmering" -- let the feeling come, let it stay for a while, then let it go. He says something else as well: "When we get angry, we lose the dignity of our intelligence." I like that. Anger does nothing to help us achieve our workplace goals. It retards our ability to do so. Angry people tend to be jerks who poison our workplaces. My column on workplace jerks has more.

Fix your mistakes

Sometimes you win by not fighting. Sun Tzu had it right: 100 victories in 100 battles is not the most skillful; subduing the other's military without battle is the most skillful. And United Parcel Service did just that in a case that came out of the 8th U.S. Circuit Court of Appeals on Dec. 4. An African-American driver was promoted at UPS from an air shuttle driver to a feeder driver -- tougher job but more money. On her first day, she got into an accident and was sent back to the shuttle job. She filed a charge of discrimination. UPS figured out it had made a mistake under company policy. She filed a grievance under the collective bargaining agreement. After three months, UPS put her back in the feeder job, paid her lost back pay and made up for lost seniority. She sued anyway, saying she was discriminated against and was still owed interest and damages for emotional distress. Neither the trial court nor the appeals court saw it that way. To have a claim, an employee must show a prima facie case; a prima facie case requires that an adverse employment action befall an employee. Here, no lost back pay + getting back the feeder job = no adverse employment action. Lost interest? No material disadvantage. Emotional distress? A nonspecific claim does not transform the corrected demotion into an adverse employment action. It was that simple. I used this idea in a multiple-plaintiff case several years ago, and it worked. Here's the secret: Never take an accusation of discrimination personally. Look to see if you might actually (gasp !) be wrong. If you are, fix it -- EEOC charge or not. Doing the right thing is just smart business.

Guard against vivification

 I'm reading a very interesting book, "Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond" by Harvard Business School professors Deepak Malhotra and Max H. Baseman. (Spiffy title, isn't it? More on that it a minute.) One idea: We are not rational in negotiating. We have biases of the mind that undo us all. Here's an example from the book: A graduating Harvard MBA might hear these things when being recruited by employers:
• The medical benefits are very good;
• The company is located 10 miles from where I grew up;
• People seemed very happy when I visited company HQ;
 • I would get to travel to Europe on a regular basis;
• The starting salary is $ 140,000;
• Employees have lots of control over their work assignments;
• The office space is very nice; and
• I will not have to travel much.
Which ones do the students focus on? The most vivid ones. People fall for the vividness bias -- those things that are easiest to communicate quickly with others and easiest for others to quickly evaluate. The vividness bias causes people to overweigh some factors and underweigh others with no connection to their true value. Result? People take jobs associated with the vividness bias, become disenchanted and leave. And guess what? Who is more susceptible to the bias? Men or women? Research suggest men. The authors suggest people avoid the bias by knowing it is there. And, when faced with a tough decision, ask yourself 1. Is this information valuable? 2. Have I learned something new ? 3. Am I just being influenced to act in a certain way because of how the information is presented? When considering an offer -- job or otherwise -- know we are all (including your truly thumbing this out) biased and, well, all too human.  Know what? I did not realize why I bought this book until halfway through when they talk about the bias. It was the title: words like "genius" and "brilliant results," not only with negotiations but "beyond." I got "vivified."

Play to win, don't just play not to lose

I have written about the U.S. Supreme Court’s decision in Bell Atlantic Corp., et al. v. Twombly et al., in which the high court looked at Rule 12(b)(6) dismissals for failure to state a claim. While Twombly was an antitrust case, its principles apply to employment cases, and on Dec. 5 the 5th U.S. Circuit Court of Appeals applied Twombly to one. Twombly rejected the idea that a court could only grant a 12(b)(6) motion if there was no way, no how, that the plaintiff could state a claim. Rather, the court said that a plaintiff, to survive a 12(b)(6) motion, had to state enough facts to support a plausible claim. No speculation allowed. So what did the 5th Circuit do with this allegation regarding a complaint filed by Christopher Landavazo? Here’s the 5th Circuit, quoting from the complaint:

‘Mr. Landavazo was terminated on or about December 9, 2004. Defendant purportedly terminated because Plaintiff supposedly claimed unworked overtime. This purported reason is false, pretextual and a mere excuse for unlawful motivations. The real reasons Mr. Landavazo was discriminated and retaliated against in the terms, conditions and privileges of his employment is because of his race, color, national origin and or ethnicity and or in violation of the Fair Labor Standards Act.’

I generally don't like to quote this much, but on a 12(b)(6), the devil is in the details. What did the 5th Circuit do? The court said that this complaint was just a bunch of legal conclusions. The complaint set out the reasons why the employer supposedly terminated Landavazo. Fair enough. But it did not, as required by Twombly, set out why a protected characteristic played a role in the termination. Under Twombly, a plaintiff must play to win and not play not to lose. Here, he did not show why he was entitled to relief, just blanket assertions of entitlement to relief. Case dismissed.