Work Matters

Court rules equitable estoppel can subject non-FMLA employer to FMLA's requirements

Riddle me this, Batman: When is an employee FMLA protected even if her employer is not FMLA covered? The answer, from a Dallas federal court, is when the employer incorrectly tells the employee she is entitled to FMLA leave. Such was the case in McFadden v. Seagoville State Bank, decided Jan. 6. According to the opinion, employee Amy McFadden told her employer, Seagoville State Bank, that she wanted FMLA leave. The bank, as the opinion relates, never told her that the FMLA did not apply to her because the bank was too small an employer to be FMLA covered. The court noted:
"The Bank argues the term 'FMLA leave' was used internally for the sake of 'administrative convenience,' and because the term was originally used by McFadden herself, but that does not mean that the leave granted McFadden was actually FMLA leave . . . However, even if the Bank never affirmatively told McFadden she had been approved for 'FMLA leave,' in those terms, the Bank, by its silence, left McFadden with the impression that the leave was FMLA approved leave." The legal hook used by the court in denying the bank's summary judgment based on noncoverage? It's equitable estoppel, the legal notion that you are stopped from using a defense to a claim if you say X (even without the intent to deceive) and the one to whom you make the statement relies upon X to her detriment. That's what happened here, in a nutshell. The take-away: Employers must be clear in telling employees which benefits they have and which they don't. Vagueness is not a virtue. So, even though the bank was not FMLA covered, it made itself so by what it said, and all the rights that come to an employee which FMLA coverage attached to her. So when she wanted to return from her "FMLA" leave, she was entitled to the protection of the FMLA, which requires the employer to place the returning employee in the identical position she had when she took leave.

No one cares how you did things at your last job

Interesting piece in Investors Business Daily for March 23, "Scoring Big On The Job," by Cord Cooper. He provides advice for those lucky enough to get a new job after being laid off. The first rule in a new workplace: Learn the metrics. He advises new hires to get the answers, ASAP, to the following questions:

• What are the key success factors of the job?
• How does the process or product involved in my job fit into the company's revenue equation?
• How will I be judged on whether I am doing a good job?
• What should my short term and long term goals be?

That's the advice he quotes from a new book, "Expect to Win: Proven Strategies for Success From a Wall Street Vet" by Carla Harris. Cooper's piece also advises the new worker to get a handle on the culture, manage a positive impression of him- or herself, stay cool if in a leadership role by spending the first few weeks listening, not talking, and by walking the line: "Regardless of your position, show assurance without arrogance. Humility trumps overconfidence." To which I would add: Never, ever spout off about "That's not we did it at my old job." Even if was a better way, stay silent until you have enough political capital to mention it. The employee's new colleagues don't want to hear about the employee's last gig.

The business judgment rule is powerful but not invincible

So many times I hear plaintiff's lawyers bemoan — and company lawyers applaud — the business judgment rule. The rule is this: A court will not second guess an employer's business judgment in how it runs its business. Yet the rule is not always the Terminator of employment claims. Look at Willnerd v. First National Nebraska , Inc., decided by the 8th U.S. Circuit Court of Appeals on March 13. It’s a case under the Americans with Disabilities Act. Jeffrey Willnerd works at a bank. He came down with a rare disease that caused his voice to cut out and then suddenly return, but it could only return with great effort by him. The condition became worse, and his voice reduced to a whisper. According to the opinion, Willnerd claimed that his bosses expressed concern on how this condition looked to bank customers. Willnerd, a loan officer, then had, or so the opinion relates, his quota raised. He didn't meet it and was fired. The appeals court tossed aside the trial court's summary judgment for the bank. The court rejected the bank's effort to legally protect its decision through exercise of business judgment: "Regarding the quota, we have previously held that it is permissible for a jury to view the imposition of an unattainable goal as evidence of pretext because a jury may reasonably view the goal or production quota as an effort to set up the employee for failure." And here, to boot, the employee who assumed Willnerd's duties failed to perform even at the level of Willnerd and suffered no adverse employment action as a result. So, employees can get to a jury. The plaintiff’s lawyer does not need the smoking gun, the blurted out confession of animus, the raw contrast of disparate treatment. There are other ways, and I will be blogging on them later.

The best movies for -- not about -- lawyers

Sitting here in the cool Mexican restaurant in my building, the guy on the bar stool next to me says, "What are your favorite lawyer movies?" I think. I answer -- not really movies about lawyers, but movies that teach lawyers to be, well, better lawyers. (I reframe. I am a lawyer. That's my job, even at the bar.) Anyway, here goes:

• "Hoosiers": a movie about second chances. Watch it some time and count up how many characters get a second chance. Clients -- both plaintiffs and defendants -- mess up. They make mistakes. Stuff happens. The movie's message: Believe in, and give others, a second chance when they deserve it.
• "Wall Street": It's the only Oliver Stone movie I ever liked. The arc of the movie: In Central Park Bud tells Gordon, "I used to want to be Gordon Gekko. But I realized I am just Bud Fox," or words to that effect. Knowing who you are fundamentally keeps you centered. For lawyers, it keeps us from padding time, stops us from putting our interests ahead of the client's, inhibits us from acting as if we, as lawyers, are better than others.
• "The Paths of Glory": Stanley Kubrick film, 1961. It is World War I. Three French soldiers face courts martial for cowardice. They are picked at random. KirK Douglas, a combat officer in war and a lawyer in peace, defends them. The trial is all form, no substance. Douglas does all he can to save them. He does not. Yet, he extracts a measure of justice. The lessons for lawyers: Do what you can, question authority (follow it blindly and it will get you killed), understand that we honor the profession even when we fight a losing fight. What are your favorites? Let me know.

Finding witness-prep wisdom

On a quiet and solitary Sunday night recently, I was reading "The Second Book of the Tao" by Stephen Mitchell. Like Columbus, I was looking for one thing and found another, namely how to get a witness ready to testify. Read this:

The duck's legs are short; you can't lengthen them without making her suffer
The crane's legs are long; you can't shorten them without causing him pain
What is long needs no cutting off; what is short needs no stretching
When you realize this
you can let the world go its own way. Do you think that you know what's best?
Do you think that the world should conform to your way of thinking?
All these benevolent people---how much worrying they do !
Since ancient times
what a lot of fuss and upheaval
the benefactors of humanity have caused!

So often, lawyers try to impose upon a witness what we would say, how we would say it and why we would say it. What we end up with are witnesses who are either amputated cranes or limping ducks. So, ask the witness the message she wants to judge and jury to hear, and what she knows that will communicate the message. Go from the bottom up, not the top down. Otherwise, we do violence to the witness and ourselves. Years ago, I was a very junior lawyer. The senior lawyer was preparing a witness and wanted her to give a certain answer in a very certain way to a question he expected. He turned red, he raised his voice, he lectured. She finally choked out "I don't understand what you want me to say" and burst into tears. Remember ducks and cranes the next witness prep go-around.

Create principles, don't issue commands, to attain peak customer service

The March issue of the Harvard Business Review has an interesting article, "When Should a Process be Art, not Science" by Joseph M. Hall and M. Eric Johnson. The big idea: Creating strict templates for how employees perform their jobs, seeking to advance the goal of excellent customer service, often backfires. Hall and Johnson looked at the Ritz-Carlton hotel chain, which mandated tightly defined process dictums, such as "Always carry a guest's luggage" or "Always tell the guest, 'It is my pleasure.' " Turned out guests, who were becoming younger, more tech savvy and often traveled with children, felt their individual needs were not be met by employees who (contrary to the Ritz's intent) acted more like Stepford wives than flesh and blood employees who could help the guest with a special request or need. So the Ritz changed the process dictums to overall value statements, such as "I am empowered to create unique, memorable, and personal experiences for our guests." Major props to the Ritz for seeing that its world was changing and acting upon the need for change. Perhaps there is a lesson here for firms.

Will EFCA make it to the Senate floor for a vote?

What's up with the Employee Free Choice Act? I blogged about it before and wanted to give an update. Lawmakers introduced EFCA March 10 in the House and Senate. House passage is a done deal, but Senate passage isn't. Why? Will the anti-EFCA forces be able to muster the 60 votes to stop the bill from going to the full Senate for a vote? My friend Mike Fox, who writes the blog Jottings by an Employer's Lawyer, recently posted a comment on EFCA that linked to www.campaigndiaries.com and a posting on March 12 by Daniel Nichanian. Nichanian's big idea: Senators who are on the fence can have their politics both ways. They can vote to send EFCA to a full vote in the Senate, where it deserves an up or down vote. EFCA advocates need 60 yeas to overcome a filibuster and get to the Senate floor. The fence-sitters can then, when the full chamber casts ballots, vote against it -- "I regret that I must oppose this bill, which has good intentions but is too flawed to earn my support." Blah, blah, blah. The electorate remembers only the final vote, not the procedural one. Brilliant.

CORRECTION: Daniel Nichanian's name originally was spelled incorrectly in this posting.

Firms should embrace social networking technology

Facebook. MySpace. Twitter. LinkedIn.YouTube. An assortment of blogs. According to Doug Cornelius at the Compliance Building blog, nearly half of all law firms block access to social networking blogs. He and a colleague conducted a survey of 231 law firms and that's what they found. The reasoning of the law firms? Loss of productivity. How shortsighted. Younger lawyers network this way. They build relationships, which later turn into business. My view: Law firms as employers should encourage social networking use. In fact, they should give their lawyers -- all, young and old, seasoned and green -- training in how to use these sites and benefit from them, personally as well as professionally. Here's a good summary of the study and all the links.

Practice makes excellent

Why is one employee outstanding and another just average? Is it a gift from on high? A genetic roll of the dice? Not really, according to two books I just finished: Malcolm Gladwell's latest, "Outliers" and Geoff Colvin's "Talent is Overrated." Their answer: practice, practice, practice. Each cite a study of music school graduates in Germany. The study followed them in school and after. The one variable between the grad who ended up at the Berlin Symphony and the grad who ended up teaching teenagers in his home was how hard and how long they practiced. There is a number: 10,000 hours over a 10 year period. Various studies cited by Gladwell and Colvin find pretty much the same thing as the German study. Gladwell says that's why the Beatles became so good. They were just another band until they went to Hamburg , Germany to play at strip clubs, 14 hours a day, day in and day out. Their sound coalesced after all that practice together. Colvin goes deeper into the concept of practice and cites studies on deliberate practice, which is a focused effort to move beyond a person's current level of ability. Practice is not, he says, doing the same thing over and again. They both take on the gift-of-God school of thought: namely, that some people like Tiger Woods and Wolfgang Amadeus Mozart are born with it, à la the Michelangelo fresco showing the touch from God to man. When Woods was 6 months old, his father took him into the garage, where the baby watched his father hit golf balls into a net, several hours a day. Mozart underwent similar tutoring by his father. But note: You don't need to start as a child to get really good at something (although to get as great as these two artists you do) as long as you are willing to commit to the 10,000 hours. The rule of 10,000 applies to all disciplines, from business management to lawyering to chess to sports (Colvin has a very interesting chapter on football great Jerry Rice). So take heart; how you turn out as an individual is, according to Gladwell and Colvin, up to you, even in these hard times.

The stimulus bill has whistle-blower teeth

It's buried -- buried deep. It's §1553 of the American Recovery and Reinvestment Act of 2009, a whistle-blower provision with teeth. Who is covered? Any employer receiving funds under the act. What's protected? Any complaint of gross mismanagement of those funds even if the mismanagement is not illegal. The complaint can be made in the ordinary course of an employee's duties, such as piping up at a meeting. Who gets the complaint? The inspector general of the federal agency through whom the employer received the funds. The inspector general investigates, and then the head of the agency decides if there is a violation and, if there is, what remedies are appropriate. If the agency finds no violation or finds a violation but denies relief in whole or in part, the employee can sue in federal court. A new claim is born.