Work Matters

How is a plane crash survivor like an errant employee?

Reading the Sunday, Feb. 8 New York Times, an article caught my eye. It looks at survivors of plane crashes. They often vow to change their lives and do for a while, but their resolve can dissolve. What does this have to do with employment law? Look at the current performance-appraisal system, in which a manager counsels employee on shortcomings; the employee promises to do better. A year passes, and the performance issues persist. The worker, like the plane crash survivors, enjoys a short period of lucidity before reverting back to his old ways. Why should this be? Take a look at "Change or Die," a book by Alan Deutschman. He explains that change can be triggered by an event, but the event -- no matter how traumatic (he talks about those who undergo open heart surgery) -- is not enough to create lasting change. It is only when an event (plane crash, tough performance review, open heart surgery) is coupled with a strong support system of others who reinforce the change that the transformation ends up being lasting. Employers need to provide support post-review (mentoring, sincerely asking how the employee is coping, providing training) if they really want to see a change. Otherwise, the review is just another bump on the workplace road. Wilson quotes a man who had been working as a software developer 60-plus hours a week, crashed, then vowed he would spend more time with his wife. What happened? Here is what the survivor says, as reported by Wilson:

“Right after the incident, it was kind of a high priority for me,” said Mr. Wilson, who is not related to this reporter. But the change did not last, he said, and soon he was working long hours again. "The old saying ‘Time heals all wounds,’ it’s true,” he said. “It kind of lasts a real brief amount of time, at least for me. Then the realities of life set in. I think it’s really easy to fall back into those old habits.”

    It's a lesson for all employers looking to change conduct.

Thursday, bloody Thursday

Dubbing it "Bloody Thursday," Employment Law 360 ran a piece last week talking about the firing of 748 lawyers and staff in different firms in different parts of the country. ABA reporter Martha Neil summed it all up in her headline on ABA Journal Law News Now, "Bloody Thursday: 6 Major Law Firms Ax Attorneys." She notes in her Feb. 12 piece that "it isn't over yet." (I'm not just a casual observer of this phenomenon; it happened to me.) Likely, all this will result in a seismic shift in how legal services are delivered and charged (RIP, billable hour?). But I want to blog instead on how managers should deal with the stressed-out survivors. The December 2008 issue of the Harvard Business Review has an article, "Dial Down the Stress Level," by Stewart D. Friedman. His advice: Show empathy in concrete terms toward those left, i.e. asking, "What can we do to help you -- at work and at home -- so you don't burn out or stress out?" Memo to managing partners: Telling the survivors to work harder to keep up profits per partner ain't going to motivate.

An early Christmas gift from the 5th Circuit

Santa brought an early gift to Fair Labor Standards Act plaintiffs on Dec. 23 in Sandoz v. Cingular Wireless LLC et al.,when the 5th U.S. Circuit Court of Appeals neutered a favorite tactic of employers in nuking class actions (know as opt-in claims) under the FLSA. Here's the general order of battle in such cases: Employee sues under FLSA on behalf of himself and others and asks the court for conditional certification. This means the court will issue an opt-in notice, informing arguably similarly situated employees of the ongoing suit and inviting them to sign an opt-in form and join -- the more, the merrier. Clever employers started arguing Article III of the U.S. Constitution, which says federal courts can only handle a case where there is a controversy; if you want advice, go see Dear Abby (and you thought those con law classes in law school would never come in handy). So, employers made Rule 68 offers to the plaintiff, offering to surrender: You, employee, can take a judgment against me for X plus attorneys fees (X = amount owed plus a cushion). The employee rejects it. The employer moves to dismiss, saying that there is nothing in controversy because it offered to surrender and give the plaintiff all he was asking for. Pretty clever. But on the eve of Christmas Eve, the 5th Circuit put the kibosh on this. Allowing employers to utilize this tactic (the court didn't use the word tactic, which sounds sort of low life, but that's what it meant; I prefer to think of his move as a grand strategy) would short circuit the opt-in process and deprive others of their potential rights. So the 5th Circuit said that employers only could use the Rule 68 gambit if the plaintiff dawdled in seeking class status. If not, the employers always, by making a quick and early Rule 68 strike, could stop a class from forming. So, in a bit of legal magic, the 5th Circuit — relying on the Iowa Supreme Court (that will be the first and last time, trust me) — found that the motion for certification related back to the original complaint; therefore, the Rule 68 offer served in the interim does not prevent the court from considering and ruling on the conditional certification. Goodbye, grand strategy. It was good to know you.

Fire newly hired whiners quickly

Equal Employment Opportunity Commission numbers show that retaliation claims in 2007 reached a record 26,663, up 18 percent from 2006 and double the amount in 1992, according to the U.S. Supreme Court’s opinion in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. Why? Well, case law has become more favorable to plaintiffs. Recall that the U.S. Supreme Court's 2006 decision in Burlington Northern & Santa Fe Railway Co. V. White made it easier to bring retaliation claims by wiping out the requirement that an employee must have suffered an ultimate adverse employment action, such as termination, and replacing it with the lower threshold requirement of merely suffering a adverse employment action that is "material." And plaintiffs lawyers love these cases. Most people are hard wired to believe that employers don't like employees who rock the boat by complaining. So what should an employer do to stem the tide? Here is what may sound like a radical solution: Fire employees who are a bad fit, especially if they are new hires. Trust me, employees who whine about their supervisor — he doesn't like me, she is rude to me, he doesn't listen to me — will sooner or later claim that the boss doesn't like them because they are African American or a woman or over 40. A whiner is a whiner is a whiner. And here is the most telling red flag: "We didn't do such and such that way at my old employer." Look, I am not talking about an employee having a bad day. It happens. I am not talking about firing a long-term employee who is going through a rough patch and needs counseling and help. But I am talking about a new employee — say, under a year or two. If he is unhappy with you, it's your job to make sure he is unhappy somewhere else. Don't wait until he makes a complaint protected under the law. Act now. Don't worry about the tried — but not always true — notion of writing him up two or three times before firing them. Just do it. Write him up once, and the whiner employee will cloak himself in the garb of complainer-protected-under-the-law, as opposed to just a complainer. Here is the truth: It is unethical to keep someone in a position for which they are not suited or in which they are unhappy. Each minute, each hour and each day they are in a job in which they are unhappy is one less minute, one less hour and one less day they can be in a job in which they are happy. Too often managers allow their fear of being direct interfere with their jobs as managers. Don't. Failing to act only makes things worse, not better. It’s a law of the universe.

Defense attorneys fees in discrimination cases

 When clients win a discrimination case, they often are frustrated that the law does not allow them to recover their attorneys fees unless the plaintiff's claim is frivolous and so lacking in merit to be groundless. But it never hurts to ask (sort of like dating). The Hattiesburg Public School District asked for them after KO'ing Addie Stover in a Title VII and retaliation suit. The trial court said the school district deserved them and awarded them to the tune of $144,058.50. Well, the joy was short lived in Mississippi. On Nov. 18, 2008, the 5th U.S. Circuit Court of Appeals said it was wrong to make the award. The 5th Circuit noted that, as a general rule, courts should not make such an award and must guard against post-hoc conclusions that, because a plaintiff did not prevail, his or her action must have been without foundation. I like to think of this as telling the lower courts not to reverse engineer. In this case, the trial court denied summary judgment, which made the award of attorney fees all the odder. This was an ordinary case with not much else in it (although there is some nice stuff about how failing to advertise for an open job or post an internal notice is not, without more, evidence of discrimination.) The 5th Circuit panel must have thought it was time for published precedent on the matter.

One free dog bite, one free punch, one free threat

On Feb. 5, the 5th U.S. Circuit Court of Appeals issued a decision interpreting the meaning of an adverse employment action under the U.S. Supreme Court's 2006 decision on retaliation, Burlington Northern & Santa Fe Railway Co. V. White. The case is Holloway v. Department of Veterans Affairs, et al. I hereby and henceforth dub its holding the "one free threat rule" (sort of like what lawyers learned in torts class with the one free dog bite rule.) Here goes: Warren Holloway worked for the Department of Veterans Affairs. In 1997 he filed various EEO complaints, alleging race discrimination and retaliation. In 1998 his boss supposedly said to two of Holloway's co-workers that he was "creating problems by filing EEO complaints." Holloway gets fired in 2000. Summary judgment for the defendants. The one issue on the appeal was whether this statement was an adverse employment action, which the Supreme Court defines as something that would dissuade a reasonable worker from making or supporting a claim of discrimination. The 5th Circuit's answer: No way is it an adverse employment action; after all, the threat was made only once, and nothing bad happened to Holloway on its heels. But the 5th Circuit did not stop there and went through a case laundry list from other jurisdictions, giving a hearty approval to their holdings. That means, from now on in the 5th Circuit, the following is A-OK:
   • A warning letter from a supervisor to an employee telling him to stop talking about his EEO complaint during business hours and threatening him with "official disciplinary action" if he did not (courtesy of the 6th U.S. Circuit Court of Appeals); and
   • Hearsay threats made to co-workers that the supervisor would "get rid" of the employee because he was "creating problems" with his discrimination complaints (from an earlier 5th Circuit case).
     So, like I said: one free dog bite, one free punch, one free threat. Here's the truth: The 5th Circuit does not want the new claim created in Burlington to get out of hand and inundate the court. That's the real holding in Holloway.

Justify juror strikes with specifics supported by the record

Back in September, the Texas Supreme Court said this to those picking juries in employment cases: No barroom generalities allowed when explaining the strike of a person of color. The case is Davis v. Fisk Electric Co., et al., and it is a race discrimination case. The high court said that strikes using an occupation as a reason, without more, could be race-based; in the Fisk case, the employer struck one African-American potential juror because he listed his occupation as "musician." Also, the court said that Fisk struck an African-American potential juror because of his body language in answering a question on punitive damages, but the record was devoid of a description of the body language. The court made clear that it was not imputing ill will regarding the strikes and presumed good faith. But an empty record won't cut the constitutional mustard. Case sent back for a new trial.

With friends like this, who needs enemies?

On Nov. 5, 2008, the 5th Circuit tossed an appeal on an ADA retaliation claim. Here’s the skinny, according to the opinion: An employee’s friend and manager blabbed to a client of their mutual employer that the employee was gay, had HIV and was a member of Alcohol Anonymous. The employee got upset and complained in two e-mails, one to his boss' boss, saying that the friend/manager had disclosed "extremely personal aspects of his life, including health issues,” and one to human resources, saying that the friend/manager had disclosed HIV status and AA membership to the client. The client later asks for the employee to be taken off its account for performance reasons. He sues for retaliation and loses. Why? With retaliation claims, words matter, and they matter a lot. The e-mails informed but did not protest. An employee must go beyond being a conduit of information (even if the employee is upset) and must have opposed unlawful practices. Emotionally charged e-mails may be a protest but are not always a protest. By the way, here is a bonus: Some case law holds that plaintiffs are not entitled to a jury trial on an ADA retaliation claim. The 7th Circuit said that the ADA does not allow for compensatory or punitive damages in an ADA retaliation case; thus the relief available was equitable, and there was no right to a jury. It's Kramer v. Banc of America Securities, decided in 2004.

Game changer on the Employee Free Choice Act?

Mark down this date and time: Feb. 4, 2009, 12:30 pm. It will either be the start of "something really big" (apologies to Ed Sullivan) or the start of the greatest fizzle in labor law. What am I talking about? The official kickoff for passage of the Employee Free Choice Act that I've blogged on before. The AFL-CIO is promising that it will deliver petitions with 1.5 million signatures supporting EFCA passage to Congress. There will be a rally with workers from across the United States speaking on how they believe their employers intimidated them because of their desire to form a union. Senator Tom Harkin from Iowa and Congressman George Miller from California will speak in support of EFCA passage. And, get this: they will introduce EFCA bills in the House and Senate. Conventional Wisdom: President Barack Obama did not want EFCA introduced now because of the expected controversy over elimination of the secret ballot. New wisdom: Forget that -- let's get it on. There will be a huge fight over passage, and elected officials will have to stand up and be counted. With a president who has stated he will sign EFCA into law, members of the House and Senate can't play pretend as they could with a President George W. Bush who vowed to veto it. Their votes now matter, and they matter a lot. Passage or defeat will likely come down to a few votes. A few thoughts:
      • Will the new bill deal with the issue of whether EFCA is constitutional? Recall that EFCA empowers a panel of arbitrators to impose the terms of a collective bargaining agreement. If the bill includes criteria upon which the arbitrators can rely, I think it is likely constitutional. Otherwise, there are big problems.
     • Will EFCA backers ultimately drop their demand that card check replace the secret ballot?
     • If EFCA passes, will the National Labor Relations Board promulgate regulations to implement it?
But here are the two really big questions:
       • Will employees be more open to union organizing efforts as the nation's economic trauma continues into its second year? (An informal survey at one of my all-time-fave restaurants, taken in real time as I type out this posting, says "yes.")
      • Will employers understand that EFCA changes the persuasion dynamic with employees? EFCA -- whether with card check or a quickie secret ballot election -- will eliminate the extended campaign period that employers now enjoy. With EFCA, it will be like the Strategic Air Command in the 1960s (remember the movies "Fail Safe" and "Dr. Strangelove: Or How I Learned to Stop Worrying and Love the Bomb"?) with employers always being in sales mode, convincing employees of the advantages of remaining union free. Think front-end-loaded persuasion. Sounds like a soap opera doesn't it ? Well, it will be. Stay tuned for the next installment.

Hearing, hearsay and the ADA

Having handled several ADA cases involving deaf or hearing-impaired plaintiffs, a case from the 7th U.S. Circuit Court of Appeals blipped on my legal radar a while back. The plaintiff, who is deaf, applied for a job as a tax consultant and was interviewed over telecommunications relay service. TRS is a hybrid of texting and talking. A deaf person uses a text telephone to reach a TRS operator and tell the operator who he wants to contact. The operator dials the recipient's telephone number over regular lines. The operator than reads verbatim the deaf person's text to the recipient. The recipient dictates her response to the operator, who in turns texts it to the hearing-impaired person. Thing was, in this case the plaintiff did not get the job, and he sued under the Americans With Disabilities Act. He offered the TRS-enabled interview conversation as evidence of disability animus. However, federal law prohibits the TRS operator from keeping a record of the call. The trial court agreed with the company that the plaintiff's testimony relating the conversation was hearsay because he was relating what the operator relayed to him and what he told the operator. On appeal, the 7th Circuit said, “Not so fast.” The TRS operator was a neutral with no reason to fabricate the exchange as it was going on. And this issue is no different than when two parties to a conversation use a foreign language translator and the parties testify about what the translator told them. If there is agreement on the use of the translator, then there is no hearsay issue -- same here in this case of first impression, Germano v. International Profit Association, Case No. 07-3914, Sept. 12, 2008. You can listen to the oral argument here. Interesting stuff. Here are also a few things I have picked up in defending these cases. When deposing a hearing-impaired person, lawyers need a translator. Because it takes longer to question a person when a translator is involved, plan for a more extended deposition. Look at the hearing-impaired person when asking the question and when listening to the translator. First, it is more respectful. Second, the hearing-impaired person often uses a combination of the questioner mouthing the words with the translator signing to better understand the gist of the question.