Work Matters

Helping others earn an A+ can make your life easier

I was swapping stories with some management-side employment lawyers from around the United States a few weeks ago. We found several of them had encountered this scenario: An employee files an EEOC charge. While the charge is pending, the employer and the employee settle the matter, with the settlement agreement saying the employee agrees to withdraw the EEOC charge. The EEOC gets notice of the withdrawal and says "Whoa, hold the boat. We are not granting the withdrawal request unless we know the terms of the settlement to determine if it is fair." What's going on here? One possibility: The EEOC wants good numbers to report on settlement efforts (just like every management lawyer wants good billable and origination numbers), so it needs to know how much employees get. Action item for management-side lawyers: Carve out an exception to any confidentiality clause, allowing either the employer or the employee to disclose the settlement amount upon request to the EEOC. Or better yet, let the EEOC know the parties are working toward settlement and will let them know if reached and for how much. Remember: Always find out how someone's report card is graded and see if you can help them get an A+. They will appreciate it, and your life will be easier.

Life after Ledbetter law

Zen riddle: If a tree falls in a forest but no one is there to hear it, does it make a sound? Employment riddle: Employer makes a discriminatory decision regarding compensation because of an employee's race, color, religion, sex, national origin, age or disability, but the employee does not learn about it until the statute of limitations passes. Does the employee have a claim? Before today, no. Under the U.S. Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), the employee was out of luck because the limitations period, according to the court, started to run when a discriminatory decision is made. The now-signed-into-law Lily Ledbetter Fair Pay Act of 2009 rejects that holding and says that the statute of limitations (300 days) is reset each time an employee is given compensation (such as a paycheck). So a discriminatory decision made 10 years ago, and unknown to the employee until years later, can be the basis of a suit. Ledbetter was out of luck in her suit because she filed her claim years after Goodyear decided to pay her less than her male counterparts. So what's an employer to do? First, get rid of rules prohibiting employees from talking about compensation. The Paycheck Fairness Act, a companion bill, makes this prohibition against the law. Second, stress an open door policy, where employees can not only register concerns but ask questions. Third, understand that, even under the Ledbetter Act, the limitations period will still begin to run (at least under my argument) when an employee knew or should have known that he or she was being discriminated against. Points one and two above provide for a more transparent workplace and thus more greater employee knowledge and thus for a trigger to the limitations period. Oh, one final point on the tree. No sound.

Arbitration aggravation

While catching up on my reading during the Dallas/Fort Worth ice storm, I came across an interesting case from Dallas on arbitration, Cary Vandenavond v. i2 Technologies, Inc., decided Dec. 19. Here is the scoop. Guy works for i2. He is a salesman and says that the company owed him $2.3 million in sales commissions. He and the company proceed to arbitration. The arbitrator awards a cool $1 million The company goes to federal court, seeking to set aside the award. Why? The arbitrator, as the court recites the arguments, relied upon a section of the commission agreement that was not really a point of contention in the arbitration. Here is the court: “No court has yet addressed the question of whether an arbitrator can base his decision in a breach of contract case on a section of the contract that was not specifically referenced in the parties' briefs or during the arbitration.” Well, this court did and -- skipping over the throat clearing -- said "Yes, he can." Bottom line: Courts presume an award is valid, which makes it very, very tough to set aside. When an employer wins an arbitration, he thinks arbitration is a great idea and sees all its good points. But when an employer loses and learns there are few grounds to set it aside, the reaction is so different. It’s something to keep in mind when deciding whether to go down arbitration avenue. Case cite? 2008 U.S. Dist. LEXIS 103586 (N. D.TX.).

Supreme Court rejects a "freakish" rule

Well, the U.S Supreme Court smoked employers yesterday with a 9-0 vote in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. The decision expands the anti-retaliation provisions of Title VII. Here's the down and (sad to say) dirty from the court's opinion: Employees allege a supervisor, a guy in charge of employee relations, is sexually harassing female employees. An investigation ensues. One employee, although not the one who filed the complaint with the employer, gets interviewed. She burns the supervisor and alleges the following: He asked to see her breasts on several occasions; when she asked him what was up, he supposedly grabbed the family jewels; and, once, he came into her office , grabbed her head and pulled it to his crotch. There's more, but you get the idea. Well, he skates, no discipline is imposed and she is fired for embezzlement. She sues, saying she was fired for "opposing discrimination" (telling the investigator of her experiences) and for "participating" in a proceeding under Title VII (the employer's internal investigation). The lower courts toss her claim but not the high court. Justice David Souter rejected the employer’s argument that protection for opposing unlawful conduct only extends to active opposition, namely employees who report unlawful conduct on their own "initiative" but not employees who "oppose" via being interviewed during an employer investigation. The mild-mannered Souter sounded more like an angry Justice Antonin Scalia, characterizing the employer's argument as requiring a "freakish rule." That's harsh. Bottom line: Crawford, the plaintiff, engaged in protected activity when she unloaded on the supervisor during the investigation. But Justices Samuel Alito Jr. and Clarence Thomas filed a concurrence. Basically saying, yes, we agree but what about an employee who complains about harassing conduct on a telephone call to a friend that, unknown to her, the employer overhears? Is that employee engaging in protected activity? After all, or so these two reason, how could her statements be "opposition" if the employee was not directing his or her comments to the employer? Talk about how many angels can dance on the head of a pin. When I was a newbie lawyer at the National Labor Relations Board, going through training, I was asked: Employee engages in union organizing. Employer spies on her, but she does not know it. Violation or not? Yes, violation because it is the employer's intent to violate the law that matters, not the employee's awareness of the spying. Same here, although Alito and Thomas think otherwise. They are wrong. Oh, one point from Souter's opinion. He writes about an employee being interviewed who thinks the harassment is hilarious and so tells the employer. This "eccentric" case would not translate to the employee engaging in protected activity -- Souter, God love him, as Vice-President Joe Biden might say. The work force is full of people, especially females, who often go along to get along and will minimize egregious conduct. This line from the court's opinion will haunt future litigants. But, that said, the court is right. In a way, this is a pro-employer opinion. Why? Smart employers want to know the truth and understand what is going on among the employees. Encouraging people to speak their minds is, well, just shrewd business. And providing legal protection to them enhances the truth telling. The Supreme Court can, at their best, be nine very wise people.

Don’t be fooled by the focusing illusion

I was doing depositions in Austin not long ago and had a drink with a longtime lawyer friend. Talking legal fees, he mentioned that in ancient Rome a physician was paid a little bit every day if he kept the patient healthy. But, if the patient became ill, the income stream gradually shut down. Should we do something similar with legal fees for employment cases? Firms could try a two-tier system, charging a higher hourly rate for keeping a client out of trouble (such as counseling on a termination decision) but a lower hourly rate for litigation. It all goes to incentives. There is an Interesting piece in the February issue of Fast Company, "The Curse of Incentives." Dan Heath and Chip Heath tell readers that incentives are almost always certain to backfire. They mention that AT&T execs, years ago, tried to encourage their programming employees to be productive by paying them per line of code written, the result being "programs of Proustian length." The Heath brothers also question the idea that paying top executives large compensation packages with lots of stock options will align that exec's interests with the company's. Why? The Heaths cite work by Daniel Kahneman and David Schkade, who developed the idea of a "focusing illusion." Example: NFL quarterback Ken O'Brien (a QB in the late 80s and early 90s) threw too many interceptions. So some lawyer for the football team inserted a contract clause penalizing him monetarily each time he threw an interception. His interceptions plummeted, not because he became a better QB but because he stopped throwing the ball. The focusing illusion reduces the world to a one-variable equation. That's particularly problematic in the work world, which is messy and never comes down to one variable and one incentive. Incentives backfire. Instead, as the Heaths observe, it is better to spend a human moment teaching employees correct behavior than to use a short-circuit incentive to obtain the desired behavior. The same is true with lawyers and clients: Attorneys should find out the client's true interests, then align firm lawyers' conduct to meet it. Sure, that is harder than just charging by the hour, but -- as with managing employees -- it's more fulfilling and more effective.

5th Circuit takes on the ADA amendments

On Jan. 15 the 5th U.S. Circuit Court of Appeals took on the amendments to the Americans with Disabilities Act. Recall that the amendments make proving a disability very easy and not, as before, very hard. Now, employers and employees will fight the battle over whether an employer's actions violated the ADA over whether the employer provided a reasonable accommodation. Well, the 5th Circuit got its talons into Equal Employment Opportunity Commission v. Agro Distribution LLC and sent out several messages. First, buried in a footnote, the court wrote that the amendments were not retroactive because Congress did not say they were. When in doubt, the 5th Circuit reasoned, no retroactive application. Second, the court looked at how the EEOC conciliation process intersected with federal jurisdiction. In Agro, the commission in its investigation found violation and, as per the law, was required to conciliate (try to settle the matter before bringing suit). But as is sometimes the case with the EEOC (but from my experience it varies), the commission in this case took an all-or-nothing approach: Take our offer, or we will sue you. Agro didn't, the EEOC did. The 5th Circuit reluctantly agreed that the failure of the EEOC to engage in meaningful conciliation did not deprive a court of jurisdiction. But (and it is a big but) the court laid out what employers should do if the EEOC sues and the employer believes conciliation was a pointless dance around the campfire: Ask the trial court for a stay of the suit to continue prematurely terminated negotiations. If the EEOC continues to act in good faith, ask the judge to consider dismissing the suit. Third, let's look at the facts. Henry Velez worked at Agro. He suffers from a condition that prevents him from sweating, so he must cool himself with a fan, take water and, if working in the heat, take more frequent breaks. Because his condition can be controlled, the law, pre-amendments, mandated a finding that he was not ADA disabled. Now, of course, he would be. But the court buried something else in a footnote: "Had there been a genuine issue of fact on relevant ADA issues, it would have been necessary at trial for EEOC to establish the nature and extent of Velez's condition through admissible medical evidence. Fed. R. Evid. 701." What does this mean? The court makes it sound as if ,in future ADA cases, a plaintiff cannot simply testify on his or her impairment to show disability status but that must present medical evidence to establish a disability, even under the greatly relaxed, post-amendment standard. Fourth -- and this is the big enchilada -- the court looked at reasonable accommodation. Seems Velez, who was a truck driver, had to assist with moving what he hauled. He hauled drums full of cattle feed, delivered them to customers, picked them up empty and returned them to their manufacturer for a deposit refund. The drums, when empty, weigh 15 -20 pounds. After being used to feed cattle, they are filthy and stinky. Velez's supervisor knew of his condition and let him take breaks as needed without asking for permission. No one ever told him not to take breaks. But once, upon working very hard in the heat, Velez got sick working the drums. Well, Velez got a new supervisor who scheduled him to move the drums. While what occurred next was disputed, Velez said he told his new supervisor that it would be too hot to move the drums and that he would become ill. The new supervisor allegedly said to Velez that if he did not then he would "suffer the consequences." The supervisor did not tell Velez that he had to work nonstop or that he could not take breaks, only that he had to help. But, neither did the supervisor tell him that he could take breaks as needed, drink water etc. Velez did not show up and got fired. The 5th Circuit held that Velez did not participate in developing a reasonable accommodation.  The court reasoned that Agro had given him an accommodation before and that essentially the best predictor of the future is the past. The court said "no evidence" supported the belief that he would not get the same accommodation had he shown up. Of course, the converse is true as well: No evidence supported the belief that the new supervisor would have given these accommodations. So it looks like:

• The employee must be the first mover in asking for an accommodation.
• The employer did not have to credit "Velez's unreasonable assertion that no matter the number of cooling breaks, he could not participate in loading in any degree, without becoming ill."
• The employee must not assume the worst but show up for work and make the employer put him through the worst.

    So the burden is upon the employee to ask for -- or in this case remind the employer of -- an accommodation. The burden is on the employee to show up with a doctor's note, because no matter how bad an employee feels or looks, an employer need not credit its employee's statements. The burden is on the employee to show up for work and get sick. Look, I agree with the 5th Circuit's result but not its reasoning. It could have simply said, in the interactive process of finding a reasonable accommodation, the employee can't just go AWOL and not show up for work. The employee must be proactive, not a passive voyeur. That's fine, but the court went well beyond that. Why? I think judges are all too human. Lawyers believe in the myth of summary disposition, where judges give the plaintiff the benefit of the doubt on disputed facts and then wisely apply the law to those facts. Sure. Rather, judges are people, and people act on emotion. This court thought Velez was trying to pull a fast one by not showing up to work. It offended them, as did the EEOC's conduct, and they let loose. A new body of case law will emerge on the reasonable accommodation issue. If this case sets the trend, a finding of an ADA violation may remain the exception, not the rule.

Muscle memory and courtroom instincts

When I was reading Saturday's The New York Times, it was full of coverage on U.S. Airways Flight No. 1549, which crashed into the Hudson River. One piece of the coverage was "Old Hands on the River Didn't Have to be Told What to Do," by Jin Dwyer in his "About New York" column. It struck me that lives were saved by the pilot and by ferry captains, all of whom who train and practice, over and again, for the worst -- so they can be at their best. To quote from Dwyer's article: "Muscle memory had steadied people in the currents of a disaster and the strong tides of the Hudson: an airline pilot remembering his metal clipboard [which held the passenger manifest], and ferry pilots who never moved out of reach of the bobbing airplane. 'You train so much, you don't have to think about it,' Captain Lucas [a ferry boat captain] said. 'I didn't have to give any orders to the crew.' " As Yoda said in "Star Wars," there is no try, there is only do. Lawyers are the same. Several months ago, I was at a court hearing, asking the judge for XYZ. The other side objected that this was too much. On reflex, not thought, I said I would be glad with X. There was more to it but that is the nut of the story. When I walked out of the courthouse with a younger lawyer, she asked how I knew the judge would give me X. Sometimes, you just know.

Help workers keep long-distance family ties from fraying

Interesting piece in Sunday’s The New York Times, "Living Apart for the Paycheck." Jennifer Conlin looks at moms and dads who choose to live apart when their careers dictate. But it’s more than that. Conlin reports that employees are now telling their companies that they will move for their careers and keep their families behind. The consensus wisdom from her piece: tough economy + the need for two incomes + technology to more easily connect separated families (like Skype) = more commuter marriages. I don't have a family, but I do have a lot of friends. One of them is in a similar situation. She is a consultant based in Atlanta who travels as much as 75 percent of the year to her consulting gigs, depending on business. She has a husband and two kids. We were producing a training DVD, and I asked her how she balanced work and home. Her insight: When I am home, I am 100 percent at home -- No work, just me and the family. When she is on the road, she has her husband set up a computer at the dinner table where she would be sitting, and she gets streamed in at dinner time. She can see the family, and the family can see her, as her 5 year old found out when she admonished her, "Get your feet off the table! I can see you!" What should employers do when families are apart for the paycheck? Offer help, at a minimum, through education on how technology can still link them. Provide support through ideas. The piece mentions a book that does just that, "The Commuter Marriage: Keep Your Relationship Close While You're Far Apart." What else? My take: Companies love to say their employees are their most valuable resource. Make sure that the business' actions are consistent with its rhetoric. Ask the employee how the separation is going. Offer, if not concrete help (like one trip home every so often, paid by the company), then at least an empathetic ear. Let the employee know the company appreciates the sacrifices. Also, be sensitive to the downside. Sometimes the remote tour of duty has unanticipated results, as Conlin quotes in her piece: "My short-term project in Europe gave me a new perspective on our 22-year marriage," said one woman, who asked that her name not be used. "It basically opened a whole new vista on my life and convinced me it was time for a divorce." I guess employers need to be ready to give some time off to meet with the divorce lawyer, not only to fly home to spend time with the family.

House passes Paycheck Fairness Act

The U.S. House of Representatives just passed the "Paycheck Fairness Act," House Bill 1338. It amends the anti-retaliation provisions of the Fair Labor Standards Act. Upon what does a retaliation claim rest? On protected activity. Because the act expands the definition of what constitutes protected activity , there will more retaliation suits. So, what is now protected activity that was not? Here goes:
    • An employee complains about a pay practice of his or her employer, and this complaint triggers an internal investigation. The employee suffers an adverse employment action because of the complaint. Or (and this is key) the employee has participated in an internal investigation by the employer.
    • An employee has "inquired about, discussed or disclosed the wages of the employee or another employee."
    The second bullet point spikes all these employer policies prohibiting employees from yakking about wages, which always was a possible violation of the National Labor Relations Act because it frustrated employees in their ability to freely discuss whether a union could get them more moola. And, if this bill becomes law, employers can get hit with punitive damages. No statutory cap.
    The first bullet? Big news. Participating in an employer's internal investigation into a complaint has never been considered protected activity. And this provision covers not just those who make a complaint triggering the investigation but those who simply participate in it. Recall that the U.S. Supreme Court now is considering whether employees engage in protected activity by "participating" in an investigation of a discrimination complaint. This provision of the Paycheck Fairness Act leads me to believe that regardless of what the high court decides, Congress will overrule the court through legislation and make participation in an internal investigation into a discrimination complaint a new form of protected activity.
    What do I think?  In the long run, protecting employees who speak the truth in an investigation is good for the employer. Ostrich-like attitudes of self delusion benefit no one. The truth may not be what an employer wants to hear, but isn't it better to know where you as an employer stand? As a client once told me, "All news is good news." Maybe that's a little Zen like, but mull it over.

From Dr. King to President Obama

Jan. 19 is the holiday marking the Rev. Dr. Martin Luther King Jr.'s birthday. Jan. 20 is the swearing in of Barack Obama (pictured) as our president. Interesting juxtaposition, no? It got me asking myself a question: Has our country moved beyond race in the nearly 50 years between the water hoses at Selma and Obama putting his hand on the Bible? (I read in the Times that it will be the same Bible upon which President Lincoln took the oath in March 1861.) I wish the answer were "yes," but I think it is not. Americans too often confuse progress with a person of color filling a top slot in politics or corporate America. The two are different. We too often deny that race plays a role in our thinking when it does. Some may use race, albeit sometimes in an indirect and a seemingly benign way, to influence employment decisions. But I think we are still making progress, still moving forward. Check out my podcast.