Work Matters

Naps: a tool for workplace productivity

The October issue of the Harvard Business Review contains an insightful piece by Robert Stickgold, "The Simplest Way to Reboot Your Brain." The big idea: Naps during the work day make employees more productive. The science shows that sleep helps people, post-nap, integrate unassociated information for creative problem solving and that a nap boosts memory. In short, the employee becomes sharper with  information handling, and a nap, according to Stickgold, also helps with separating important information from extraneous detail. How long a nap is required? He says a micro-nap as short as six minutes (not including falling asleep) helps. Google has a pro-napping policy, he notes, and provides its employees with pods, blocking out light and noise so they can take a snooze.

The new ADA regulations: The hits just keep on coming

Flying to and from Nashville, I read the new ADA regulations from the EEOC, which was a real eye-opener. There's lots of meat to them, and here is one idea thread running throughout (cue the choir): "I once was sick but now am well, and thus I am covered" (apologies to the classic spiritual.) A record of a disability gets new life under the regs. If a person who once had a disability (recall that under the amended ADA proving a disability will be a breeze), then he is forever a protected person. Forever, even if he currently has no impairment or illness. And, in establishing coverage, the regs toss out the old idea that an employee must prove that an employer relied on the record of disability. This requirement is now part of causation, not coverage. One sop to employers: Receiving  disability benefits is not a proxy for a record of a disability. Oh, and guess what? Coverage expands to include those whose impairments are in remission or episodic. They, too, get Mercedes coverage under the ADA amendments and are treated just like those who have ongoing disabilities. I can hear managers now, "Are you telling me that I can be sued by someone under the ADA who is A-O.K., in fine fettle, fit as a fiddle and not even disabled?" The answer,it seems, is "Yes." 

Proposed regs on ADA amendments = lots of litigation

The ADA Amendments went into effect on Jan. 1. In June,the EEOC started the process of revising its interpretation of the ADA in the Code of Federal Regulations. My modest prediction: lots of litigation, real soon, employee victories. A couple of interesting thing from the proposed regulations: Work is now a major life activity. There was some doubt about this under the previous statute. Under the proposed regs, an employee is substantially limited in the major life function of working if she works at ABC company doing XYZ job and is denied a reasonable accommodation. Plus, if she goes to work for another employer doing XYZ but with a reasonable accommodation, she is still considered substantially limited in the major life function of work. Also, the proposed rules provide that a statistical analysis as to the extent of a person's limitation in working is not necessary to establish a substantial limitation in the major life activity of working. Some courts, including those in the 5th Circuit , said that a plaintiff -- to prove a  substantial limitation in working -- had to present stats on the number of jobs she could not perform because of her impairment. No more. These issues will be big. Look, the work world is tough. I was reading http://mindfulbeginner.com, which mentions that "it might seem we're rushing to get somewhere." I know the feeling. Still, the blog counsels us to value the journey, not the destination, and quotes a poem I have always liked: "Ithaka" by C.P. Cavafy. I believe it was read at the funeral of Jacqueline Kennedy Onassis. W.H.Auden wrote a homage to this poem, "Atlantis." Give it a read as well. Poetry cures what ails us.

Harness self interest to elicit workers' best efforts

I flew to Los Angeles last week for interviews in a suit. Each three-hour flight meant time to read. Here is one book I liked: "The Wow Factor: The 33 Things You Must (And Must Not) Do To Guarantee Your Edge in Today's Business World" by Frances Cole Jones. (The title makes me wince, too, but it's a worthwhile read.) Anyway, the author makes mention of aligning your interests with your customers’, à la all the talk about firms sharing the risk with clients and having skin in the game. She notes a couple of examples, one ancient, one modern. It's Rome, circa 250 A.D. A bridge goes up, and the scaffolding comes off. Here's the twist: The guy who designed and built the bridge must stand underneath it when the scaffolding is taken down. Here's an example from more modern times. The Marine Corps, to its great credit, creates a true team ethic. Marine Corps riggers assemble parachutes for others. But the riggers must jump once a month, and you as a rigger jump wearing a parachute you assembled. The lesson: Keeping the interests of a business consistent with the interests of customers and clients is smart. As my mother said, "Speak to people in a language they can understand."

The art of apology

Rep. Joe Wilson, R-S.C., yells out to our president, "You lie." Rapper Kanye West grabs the microphone from country singer Taylor Swift, who is about to accept an award for best music video. West thought another entry was better and decided to say so. Serena Williams gets a call from an official at a tennis match and disagrees with it by saying what she will do with the ball vis-à-vis a body part of the official. Editorials bemoan the lack of civility, but incivility has always been with us and always will be. A moment of anger or frustration or nuttiness comes to us all; each of us is all too human. What is more important is how people apologize for our actions. We need a renaissance in how to say we're sorry and mean it. This is especially important in the workplace. First, let me say what is not an apology: West saying he is sorry and then following up by remarking "I'm just real." The latter nukes the meaning of the former. Recall the Mel Gibson apology after hurling a string of anti-Semitic comments at a police  officer -- saying that her did not intend to offend. Or those who say, "I'm sorry  you misunderstood." These are not heartfelt apologies but, like West's apology, designed to let the offender have it both ways. What should employers and their lawyers look for in determining a real apology?

• Is there an explicit, unequivocal acknowledgment that the conduct was wrong and outside accepted norms of civil conduct? That means no weasel words, no lawyer-like equivocations, no nuanced meanings.
• Does the offender reflect on why he did what he did?
• Does he give thought on how to avoid the conduct in the future?
• Does he demonstrate real empathy for how the conduct affected the other person?

At work, the nature and content of the apology is a key element in deciding a proportionate response to the offender's conduct. (The last time I apologized was a few months ago. In a deposition on a hard-fought case, the lawyer on the other side was a friend of mine. During the deposition I was asking questions, and she laughed. I snapped, asking what was so funny. She did not say anything. The next day I said I was sorry, that she did not deserve my harsh response. She quietly said it was OK, and she was just laughing at as turn of phrase that I made. Talk about feeling like an idiot. By the way, a good apology does not stop because the person offended gives an easy and early dispensation.) Society should not measure progress by whether more or less uncivil conduct occurs. We should measure it by how we respond to our out-of-bounds conduct, how we adapt ourselves to what we did so we are not repeat offenders and by how we make ourselves better people. I was raised Catholic. All this uproar got me thinking about something I have not read in years, "The Act of Contrition." While the issue in it is sin, not misconduct, I recently re-read it. Its message is solid: "I firmly resolve, with the help of Your grace, to sin no more and to avoid the near occasion of sin." I love the line on "near occasion." Kayne, Serena, Joe and Mel, should all take a read.

Releasing expectations can reduce frustration with others

I have been reading Peter Bregman, who blogged for the Harvard Business Review on a way to reframe how we deal with others. Here is the reframe: Dump the golden rule; instead, treat others the way they would like to be treated. People always expect others to behave differently than they actually do. Forget your expectations. As Bregman says, "[D]on't go to a hardware store and get upset when they won't sell you milk." So, he says, act consistently with what others want. Working with employees from India, for example? He suggests giving them what they generally want in leadership style, which is more of a micromanagement approach. His bottom line advice: "Instead of getting frustrated with other people, learn their rules of engagement. If you pretend each person is from a foreign country you don't fully understand,you'll be more open to accepting him or her." Very interesting stuff. Take a read.

Get to the important information first

Know what litigants going to their first mediation really want to know, at least at the outset? I was getting a company ready several years ago for their first-ever mediation. I went through my tactics, the opposing lawyers, the role of mediation statements, how we meet jointly and then apart. I covered it all -- or so I thought. Not really. I asked if they had any questions. One piped up, "Mike, we were trying to follow all that, and thanks for your effort. But when you were talking, we really were thinking of one thing: Do we have to shake the other side's hands at the joint session?" That reminds me of one particularly smart company. When it conducts orientation for new employees, it does not start with the anti-harassment policy, training modules or customer service promises. No, it starts with: Here is where you park when you come to work, here is where you punch in, here is how you get your paycheck. The employees, once these needs are satisfied, are then ready to listen -- really listen. It's the same phenomenon with mediation. Meet your client's needs at the outset, just like that does for its employees. The wax will be out of their ears, and the marbles will be out of your mouth. You'll be more useful to them and they to you.

Damages and the amended Americans With Disabilities Act

I was reading a 1st Circuit opinion, Tobin v. Liberty Mutual Insurance Co., that was decided on Jan. 23. The facts are long and chewy, but I recommend reading them. The opinion hits on two key issues that lawyers will see under the new ADA.

1. Recall that the new ADA makes proving a disability much easier. The action now is whether the employer made a reasonable accommodation to an employee's disability. The 1st Circuit held that the 300-day window for filing a charge of discrimination for denial of an employee's request for a reasonable accommodation begins to run after each denial because each denial is a discrete violation of the law. Result: A suit gets reborn each time an employer says "No" to an accommodation or "Let me think about it."
2. Here, the plaintiff argued he was damaged to the extent that he couldn't work ever again and thus his damages extend into the misty future. The employer said that he couldn't work, as the opinion relates, because of his disability (bipolar disorder) and not the employer's purported discrimination. The court reasons in its opinion that the violation (failure to accommodate) made the bipolar disorder worse, and the employer was on the hook for all damages flowing from that ADA violation of failure to accommodate. This decision, if picked up by other courts, will be the source from which big-dollar damages flow. Where there are dollars, the lawyers — plaintiff and defense — flock.

Pauses and effective advocacy, as taught by the president

Watching the speech to the joint session by the president, people must admire his skill as an advocate regardless of their political views. An effective advocate knows when to talk and when to be quiet. When the "You lie" was yelled out, the president stopped talking, let it sink in to the audience (Congress and the larger audience outside Congress), waited for the cameras to pick up a reaction shot (they focused on the first lady, and she had just the right reaction) and then he went on. Genius. I only wish I could be that good. I was trying a suit a few years ago. The plaintiff blurted out that her manager resembled a piece of anatomy. I paused -- on reflection, not as long as I should have -- but listeners did absorb the comment. Someone once said that music is not about the notes but the pauses. That's so true. I think effective advocacy is as well. The president gave trial lawyers a lesson.

FMLA, after-acquired evidence and adoption

Dotson v. Pfizer Inc. is an interesting 4th Circuit case on the Family and Medical Leave Act, decided March 4. James Dotson went to Russia with his wife to adopt a baby. While gone, Pfizer decided his gift to the Russian orphanage (a Pfizer drug kit) violated company policy and, as the 4th Circuit relates, canned him upon his return. Dotson sued for violation of the FMLA. The court's opinion notes that, after suit was filed, Pfizer determined in the litigation that Dotson had acted questionably in obtaining the drug, as opposed to what he was fired for, namely providing the drug to the orphanage in the first place. Pfizer raised an after-acquired-evidence defense, which means that an employee's damage recovery stops as of the date (post-suit being filed) when the employer learned of the alleged misdeed. The court's opinion tallies up what occurred: The jury found Pfizer violated the FMLA's prohibitions against retaliation and interference; it awarded Dotson $333,305.25 (which was doubled by the court under the FMLA's liquidated damages provision) and $375,000 in attorney fees. The jury did so even though, as the court notes, it "implicitly" found for the company on its after-acquired-evidence defense and apparently stopped back-pay damages at some point. Why is the case of interest? Several points. First, employees can't take FMLA leave for adoption intermittently unless the employer agrees. Here, Pfizer argued there was no agreement. True enough, but Pfizer knew Dotson was using leave on an intermittent basis to adopt a kid and did not say, "Stop." Second, Dotson never asked for FMLA leave, and his absences for the Russia trip were covered by accrued vacation. But for purposes of an FMLA retaliation claim, that does not matter. If the leave could have been FMLA leave -- even if not treated as such -- then an adverse action against an employee post-leave can violate the FMLA's anti-retaliation provisions. According to the court, employees can make use of the FMLA's protections against retaliation even if the employee never applied for or sought FMLA leave or exercised FMLA rights. Third, regarding the drugs and the Russian orphanage: My mom used to say, "If you say something is important, then treat it as important." Here, the court recited evidence that several Pfizer managers knew about the gift of the drugs before Dotson left for Russia, did nothing to stop Dotson, and were not counseled or disciplined for letting him go and give the gift. Also, Pfizer did not report the gift violation to the feds until 2005 (the opinion does not give the date). Dotson got terminated Nov. 11, 2003. If so important, why wait so long? Anyway, the 4th Circuit is very conservative. If this is how other circuits will analyze FMLA claims, employers' lawyers are in for a bumpy ride.