Work Matters

Three quick hits on employment law

• In thoughtful opinions, two different federal judges in the Northern District of Texas have held that a mixed-motive analysis applies in a Title VII retaliation case. That's good news for plaintiffs. It is easy to argue to judge and jury: "You may believe that the employer was motivated by legitimate reasons, but if there is evidence of an unlawful reason -- even just one out of 10 reasons -- then you must deny summary judgment (judge) or return a verdict for the plaintiff (jury)." That's heaven for plaintiffs lawyers. Check out Martin v. UT Southwestern Medical Center, 2009 U. S. Dist. LEXIS 1691 (2009) and Smith v. Xerox Corp., 2008 U. S. Dist. LEXIS 91216 (2008).

• In deciding to seek injunctive relief when an employee leaves to go to a competitor, where must the employer file suit? The venue rule says a plaintiff must bring suit in the county of residence of the parties being sued. Wrong, says the 1st Court of Appeals in Houston on Feb. 5 in Shuttleworth, et al. v. G & A Outsourcing , Inc. The court held that the venue statute, Texas Civil Practice & Remedies Code §65.023(a), does not apply to a suit that seeks both legal as well as injunctive relief if the "main purpose" of the suit is for damages as well as deterrence -- that is, sending a message to other employees not to breach their covenants. Why is this important? It is easier to get injunctions in some Texas counties than others. An employer can now seek injunctive relief in a county of its pick if it pleads and argues in conformity with Shuttleworth. Warning: It's hard to know whether other courts will pick this up.
• A final word: Texas is becoming increasingly Hispanic in culture. When the culture changes, the jury pool changes. What will that mean, for example, regarding jurors' view of the elderly in an age discrimination case? "Más sabe el diablo por viejo que por diablo." Translation: "The devil is wise, not because he is the devil but because he is old." This aphorism could reflect a view of age as a plus, not as a drawback. Such a view could play to a plaintiff's advantage in an age discrimination case.

Cert denial on mixed-motive case hints at future victory for employees

Talk about a headache and a half. On May 18, the U.S. Supreme Court denied cert in an issue that has divided the appeals courts: mixed-motive claims at the summary judgment stage of an employment case. The 6th U.S. Circuit Court of Appeals, from whose ruling the cert was taken, took the intellectually honest approach in White v. Baxter Healthcare Corp., one that is pro-employee. Its bottom line: "In order to reach a jury, the plaintiff is not required to eliminate or rebut all possible legitimate motivations of the defendant [employer] as long as the plaintiff can demonstrate that an illegitimate discriminatory animus factored into the defendant's [employer's] decision  to take the adverse employment action." So, under this standard, no more summary judgments denied if the employer has three reasons for its decision and the employee can undermine only two of the three. Frankly, this is what the law -- the statute -- says. The law: If one motivation of the employer is based on discriminatory animus, then the case gets to the jury regardless of how many good, nondiscriminatory reasons the employer can cough up. This issue is huge. It is more important than all of the proposed laws of the Obama administration. This issue goes to the heart of how many cases get tossed at summary judgment and how many cases get to the jury. At day's end, the pro-employee forces will win. Why? That's what the statute says, and all the justices on the high court, from Scalia to Ginsburg, agree that it is the language of the law that controls. When the smoke clears, it will be the employees who come out on top. Bet on it.  If this was not the case, why would the high court deny the cert petition of the employer?

The (perceived) danger of speaking up

It's almost the weekend. Last Friday night I was having drinks at the cool Mexican restaurant in my building, when I ran into a couple of transaction lawyers who are my friends. Times are tough in the legal profession, especially for them. We drink, we eat, we drink some more. I mention a few ideas on how they can help their firm develop business -- some ideas to talk about with the partners. One looks aghast: "If I did that, I wouldn't be fired. They would just cut off my work -- the oxygen of billable hours. Never suggest. They take it as criticism." We did a shot and went on our ways. Why does this lawyer think this? Friday night turned into Saturday night, and I was flipping though my back issues of the Harvard Business Review and stumbled across "Why Employees Are Afraid to Speak" by James R. Detert and Amy C. Edmondson. Turns out their research explains why. They conclude that employees fear reprisal for voicing their opinions but have no factual basis to believe reprisal will result from doing so. (I reflect on my friend's fear and realize the conclusions of Detert and Edmondson may be true for a regular company but perhaps not for firms. More on that in a minute.) To dispel this myth, they suggest that a company do the following:

• Have the execs explicitly acknowledge the value of others' ideas.
• Challenge the myths of punishment for speaking up by encouraging open discussion of new ideas. Don't limit same to one-on-one talks with insecure superiors.
• Let employees who make worthwhile suggestions share in cost savings or revenue generation.

It's a good article. Now, back to firms. Firms, unlike companies, are not rational. They are built on hierarchy. Hierarchy says: "I paid my dues, and I am now the boss. You pay your dues, and you can speak up. Until then, keep quiet." It is often -- not always -- said in a nicer way, but that's the guts of it. Lawyers who say what they think (no matter how well meaning) will, at many firms, get hammered -- but generally quietly. After all, it is a firm. My friend's survival instincts are well honed. I need to call her. I don't want her being influenced by my ideas and pulling a Jerry McGuire.

The golden rule

Our minds seeks shortcuts. So much comes at us, so fast. We need a touchstone to make sense of it all. So, I thought I'd post on something from the Talmud: "What is hateful to you, do not to your fellow man. This is the law: all the rest is commentary." I like that, especially the last clause. Good words to remember in a Work Matters world.

The best of times, the wurst of times, or how the Senate will make sausage with EFCA

Otto Von Bismarck nailed it: No one should see a law or a sausage being made. Lawyers may never watch the wurst, but they will see the first if they watch the Senate try to get the Employee Free Choice Act in shape for passage. Things are looking good for pro-EFCA advocates. Recall the EFCA amends the National Labor Relations Acts in two ways. It gets rid of the secret ballot election, replacing it with card check election, in which, if a majority of employees sign an authorization card, the union is in. If the company and the union can't agree on a contract, an arbitrator holds a hearing and imposes one on them. There is lots of resistance to both ideas, even among Democrats. But Senator Diane Feinstein, D-Calif., is advocating keeping the secret ballot but making it a mail-in ballot, or so reported www.firedoglake.com on May 8. That same day, www.efcanow.com suggested that EFCA will require the election via mail to be held within 10 to 21 days of a union election petition (as opposed to the 42 day period now). For me, here is the double whammy: Only highly motivated employees will vote by mail -- they will be ones the unions has been cultivating pre-petition filing -- and there will be more union victories. The Web site also reported that there may be a hybrid card check with the authorization card the employee signs giving two choices: "I am signing this card and want a secret ballot election," or "I am signing this card and want union representation now, no secret ballot." Pretty clever. But wait, there's more! With these deals, there will be baseball arbitration: The arbitrator looks at the last, best offer of both sides and picks one. Brilliant. Senator Arlen Specter, now a Dem, is running for his life in a pro-union state; he supports it, according to www.firedoglake.com. Is this what the unions wanted? No. Is this what the unions will be glad to have? Yes. It gets them an election victory and a contract. It's not the tastiest of sausages, but it's filling enough. And with the mustard of an Obama-appointed National Labor Relations Board lathered on, it's a recipe for a new, reborn union movement.

Coping in the wake of layoffs: A guide for survivors

The carnage continues in the legal profession. The numbers numb us. They prompt me to think about my own bout with unemployment. At my firm, when it went under, I spoke to the younger lawyers to let them know. It was like the duty that befalls the friend who must inform others of a death in their mutual circle. One lawyer cried. I had not thought about that in a long while, but all the news on downsizings at firms made me re-live it. So what can I tell the survivors of the carnage?

• It is OK for those who have been let go to feel awful and for those delivering the bad news to feel bad, as well. Words about those who were let go ring hollow. The best firm memo I read online just said what management was going to do to help the terminated lawyers transition and left it at that. Stick with the truth.
• Know this: Those let go will feel shame. I know this sounds surprising. Why would they feel shame? Bad things can happen in workplaces and the economy that has nothing to do with individual merit or worth. But people feel; they don't think -- lawyers included. Spend a few hours and read "Last Night at the Lobster," a novel by Stewart O'Nan. A restaurant in a chain is closing due to economic woes. There is a passage where the manager thinks to himself that it had to be his fault, that surely there was something he should have done, that somehow it was all preventable if only he was more aware. This is a natural, human reaction. Understand this.
• Too often, people ignore those who are suffering because their pain reminds us we, too, are vulnerable. Survivors need to force themselves to stay in contact with those who have left. Keep up with them. Likely, they won't do it themselves (see above).
• Those left on the job can focus on thanking those who help them -- with real thanks, not by robotic rote. Think about how the other person went about getting the job done and what went into it. Struggling with feeling and expressing appreciation? Read "How Starbucks Saved My Life." It's Michael Gill's meditation on how he went from high flying exec to lowest level Starbucks employee. The best passage involves his realization of just how meaningless his thank yous to Starbucks employees used to be when he was on the other side of the counter. His thanks were just polite form with no substance. Lawyers should rethink their thank yous to their colleagues -- and colleagues include staff.

I will blog more on this later. Thanks for reading.

Reports of the billable hour's death are greatly exaggerated

When I was flying back home to Dallas not too long ago, I had a chance to reflect on a panel that I moderated on alternate fees arrangements at a conference in Nashville. A couple of in-house counsel were on the panel, with around 30 labor and employment lawyers in attendance. Here was the consensus in the room:

• The billable hour is not dead. Clients like it. They simply want it to be managed better: Don't schedule multiple conferences without a good reason. Don't use the matter as a way to meet a monthly billable quota. One panel member spoke of a $15,000 summary judgment spent on a $12,000 dispute. In-house counsel don't want more lawyering than they need.
• Alternate arrangements like a fixed fee? In-house counsel may consider them, but only if trust exists between the in-houser and the out-houser. After all, contingencies need negotiating -- but not so many that the contingencies swallow the fixed fee idea.
• Do a budget. Be realistic. Corporate counsel will no longer accept the idea that there are too many unknowns in employment litigation for outside lawyers to provide a budget. It won't work, especially after the economic trauma of 2008.
• Corporate counsel hire lawyers based on their reputation. Their advice: Always be working on yours.
• Corporate counsel know that a firm is a business. If the outside lawyer treats their company as one also, by charging fair fees and producing realistic budgets, then the corporate counsel will treat the firm the same way, i.e. paying its bills on time.

Check out my column on this. The billable hour. The rumors of its death have been greatly exaggerated.

Female bullying at work

Interesting piece in The New York Times for May 10, "Backlash: Women Bullying Women at Work," by Micky Meese. According to Meese's piece, men in the workplace bully pretty much both men and women. By contrast, he reports that women "appear to prefer their own kind, choosing other women as targets more than 70 percent of the time." Why?  His reporting suggests several reasons:

• Women now make up more then 50 percent of the workforce, so it was bound to happen and be noticed.
• Women compete for attention, starting in childhood. They vie for attention from dad, then teachers, on and on, so it is only natural that spills over into the workplace.
• Women believe, to succeed, that they must be aggressive and thus act against gender stereotype.

Who knows? But there is an idea I like based on evolutionary biology. It's set out in the book, "In the Company of Women: Why We Hurt Each Other and How To Stop," by Pat Heim, Susan Murphy and Susan K. Golant. What's their big idea? When we were little more than apes, the female imperative was to protect the offspring. Females thus had to bind together to insure the offsprings' survival. A female who was not a team player, who thought she was better than the group and thus endangered the offspring, was isolated and tossed aside. Fast forward 30,000 years. Women are still wired that way. So, when a fellow woman gets promoted, acts superior to the group or gets a bee in her bonnet, the old wiring fires up and results in other females bullying her. That's why, according to the book, women who get promoted often pooh-pooh the promotion: "It's not really that much more money," etc. Their survival wiring kicks in. Shakespeare was right, we are motivated by things we are barely aware of or understand.

Lawyers and depression: Causes and consequences

 "Depression Stalks the Legal Profession" is the headline from a May 7 piece by Karen Sloan in The National Law Journal, a Texas Lawyer affiliate. She cites a study showing that lawyers have a higher rate of depression than other occupations, but their personality type -- controlling and assertive --- does not lend itself to seeking help when depression takes over. And, suffering shows even if you don't know you're in trouble. Why are attorneys vulnerable to this illness?

1. Go the www.texasbar.com and click on "Practicing From the Shadows: Depression and the Legal Profession." A lawyer on the video contrasts attorneys with people in other professions: We almost always have an opponent who wants to defeat us and do harm to our client. A surgeon, by contrast, doesn't have someone on the other side of the operating table trying to kill the patient.
2. Read "Law v. Life," a great book by Walt Bachman. He tells of an experiment where two monkeys are hooked up to a machine that gives an electric jolt. One monkey has a lever he can hit that stops the charge from jolting both. The other does not; he just takes the charge. Which monkey got an ulcer? That's right, the one with the lever. Bachman says we lawyers are just like the one with the lever.
3. The identity of a lawyer is being a lawyer. Sloan quotes a psychologist who astutely remarks, "People have always asked [lawyers] 'What do you do' and they've said 'I'm a lawyer.' . . . When they lose that role in life, it's pretty confusing." This makes me glad my first book is out and I am halfway done with my second. I have also been doing a commercial newsletter every month since January 1990 I tell people I am a writer. Trust me, people really perk up when you say you are a writer.

Anyway, knowing why we act as we do goes a long way to fixing how we act. If you think you might be depressed, reach out for help. Things can change. You can get better. 

Our mothers' roles in shaping the lawyers we are today

Mother's Day is barreling toward us. Our parents shape us, sometimes for the worse. As English poet Philip Larkin lamented, your mum and dad mess you up (he used a more salty expression then "messed up.") But I think parents more often shape us for the better. Their lessons shape the values and world view we bring to our work lives, lawyers included. So I wanted to share with you my Work Matters column on how my mother made me the employment lawyer I am now. Thanks, mom.