Work Matters

Administrative review board lets former in-house lawyer use privileged materials to mount whistle-blower case

Can a former in-house lawyer use attorney-client privileged information to establish that he was fired for being a Sarbanes-Oxley whistle-blower? On Sept. 30, the Administrative Review Board at the Department of Labor said yes. According to Jordan v. Sprint Nextel Corp., the opinion issued by the ARB, Jack Jordan worked as in-house counsel at Sprint Nextel. He asserts that he got the heave-ho for opposing conduct he believed violated various rules of the Securities and Exchange Commission. But to prove his case, he needed to use internal reports he made to his superiors, in which he told them of his beliefs. The ARB said it would be inconsistent for Congress, as it did when it passed Sarbanes Oxley, to require lawyers to blow the whistle on a material violation of SEC rules but then afford them no protection for doing so. One pro-employer footnote: The administrative law judges who hear these cases can issue protective orders to protect the privileged communications from disclosure. It is a short opinion (17 pages) and worth a read.

Rudeness and resulting resentment can foster cheating

I've blogged before on the work of Dan Ariely, a professor in the area of behavioral economics. The July-August 2009, issue of the Harvard Business Review has an interesting article of his, "The End Of Rational Economics." He talks about work done in the field of resentment, which I think has application to the work world. Here is one study. An actor meets with a a group of people, chosen at random in a coffee shop. They receive a piece of paper with letters on them and are told to find matching pairs. They get $5 for completing the task and sign a receipt when they get the money. Here is the twist: One group is the no-annoyance group, and the other group is the annoyance group. With the annoyance group, the actor interrupts his explanation of the project to the group by taking a cell phone call from a friend and talking about ordering a pizza. He makes no apologies for the interruption. He overpays this group by several dollars. He also overpays the no-annoyance group that was not interrupted by a phone call. Was the extra money returned? Only 14 percent of those in the annoyed group did so, while 45 percent in the no-annoyance group did. But what if the actor makes an apology for the interruption? The percentage of those in the annoyed group returning the money shoots up to 45 percent. My take-away is that rudeness empowers people to cheat, the thinking being "he did this to me, so I am entitled to do this to him." The same can be true in the workplace. An dissed employee will be more likely to skate by on an ethical issue. One who is dissed but receives an apology will be much less likely to do so. Look, we all lose our tempers and say things we should not. Employers should train managers to rectify these types of mistakes ASAP.

Employers have a defense to claims they failed to engage in an interactive process regarding reasonable accommodations

Recall that an employer's failure to engage in a reasonable-accommodation dialogue with a disabled employee is, in and of itself, an Americans With Disabilities Act violation. To have such a dialogue, the employer and employee must engage in an interactive process, with the employee saying what she needs and why and the employer saying yes, no or maybe. An employer failure to do so = employer liability. Are there any defenses for the employer? Yes, courtesy of McBride v. BIC Consumer Products Mfg. Co., Inc., an Oct. 5 opinion from the 2nd U.S. Circuit Court of Appeals: An employee had a chemical sensitivity. This was not good because her job was in manufacturing, and chemicals were part of the manufacturing process. The employer offered he a respirator; she said no. She went off on 12-month leave, upon the expiration of which she was fired on the grounds that she refused the respirator as an accommodation. She sued, saying the company's hard-line attitude was, essentially, take it or leave it — and thus an ADA violation. The 2nd Circuit said, no, it wasn't. Why? “[A]n employer's failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA and evidence thereof does not allow a plaintiff to avoid summary judgment unless she also establishes that, at least with the aid of some identified accommodation, she was qualified for the position at issue,” wrote the court. Here, the employer didn't engage in dialogue beyond its offer of a respirator (that’s not good for the employer), but the plaintiff couldn't show that an accommodation was possible (that’s even worse for her); thus, she loses. The 2nd Circuit tossed out some cautionary notes to employers who become too infatuated with this ruling. No. 1: By failing to engage in the interactive process, an employer risks not discovering a means of accommodation. No. 2: Failure to engage in a sufficient interactive process where accommodation was, in fact, possible may constitute prima facie evidence of discrimination on the basis of a disability. But, for now, all is well with this employer.

Embrace twitterers, tweeters, tworkers or whatever you want to call them

Jay Shepherd is a management lawyer who writes an always interesting and informative blog, "Gruntled Employees." The Aug. 20 posting on why Twitterers make better employees (he calls them tworkers) caught my attention. Here are a few reasons: They want to be a part of a community. They do not follow fads, but they are interested in trying new things. They can express themselves concisely; Twitter limits tweets to 140 characters, not words. His advice: "Employers: don't ban Twitter from the workplace. Instead, look for good tworkers." A few thoughts of my own: I think that tworkers will turn into better writers. They understand, to borrow a military term, B.L.U.F.(bottom line up front), which, after all, is the language of American business. Historians look back on the memoirs of President Ulysses S. Grant as being among the very best, if not the best, example of that genre. Why? Grant wrote clearly and developed that clarity writing out military orders. Also, Twitter enables those with the same interests to meet one another, which benefits employers. A business contact called me, wanting to know if there were any law review articles on a particular employment law issue. I said sure and said I'd send it along. How did I know the article existed? One of my followers on Twitter tweeted about it the day before.

Bard and bench agree: Civility matters

I love Shakespeare (as you can tell by this article), so I had to read an opinion from a U.S. District Court judge in the Eastern District of Pennsylvania who quoted Will in an opinion on lawyer ethics, Huggins v. Coatesville Area School District, et al. Here is the quote, from "The Taming of the Shrew," "And, do as adversaries do in law, strive mightily but eat and drink as friends." What led the court to mix Shakespeare and ethics?  A standard discrimination case. An executive of the employer school district, Dr. Walker, was being deposed. Objections were interposed to some questions, tempers bubbled over. The plaintiff's lawyer called the defense lawyer an "a------" four times and told him he was a "boy" (both lawyers are black). He refused to use "Dr." when questioning Walker (although that was what everyone called her) because he wanted to get an "edge." For his part, the defense lawyer told Walker not to worry, the opposing lawyer was just "off his meds today." All of this got to the judge, who said both lawyers were at fault (although the judge hit the plaintiff’s lawyer harder, saying that "boy" had no place in the depositions, rejecting the argument that it was OK because both lawyers are black, and dismissing the idea that getting an "edge" justifies rudeness). The court tried to get the case back on a civil track, requiring the plaintiff’s lawyer to take a CLE course on ethics and civility, and ordered both lawyers sit down and eat an "informal" meal together. (Looks like each lawyer picks up his own tab.)  The court:  “At the end of the day, it should not be merely intelligence, skepticism, oratorical flourish, or the like that truly distinguishes the legal profession from others. Rather, as Shakespeare recognized, one hopes and expects that it is also civility.” That reminds me of a case I tried when I was a new and very young lawyer at the National Labor Relations Board. I was in deep East Texas, prosecuting an unfair labor practice case against a company. The company was defended by a lawyer in his late 60s. Lunchtime came, and he ambled over and said "Let's go get some lunch." I stiffened and replied, "I am a government lawyer, and I don't think that is appropriate." He looked at me evenly and said quietly, "Son, I have been a lawyer for 43 years, and I have fought fiercer fights than this one and had fiercer opponents than you, and not a one has ever refused to eat with me." I will tell you this: the Salisbury steak at the hospital cafeteria was actually pretty good.

Stop trying to fit in

Readers know I am a fan of Peter Bregman. I read with interest his Harvard Business Review column, 'Want to Keep Your Job? Stop Trying to Fit In." Here is his big idea: People spend too much time trying to make ourselves like others and not enough time just being ourselves. Bregman says,"[I]f you look like other people,if your business looks like other businesses,then all you've done is increase your pool of competition." He says we should not try to distinguish ourselves by being the same as others, only better; rather, we should spend more time trying to be unique. Why don't we do this? We're wired not to. Here's my interpretation of his message: People have been told since we were kids to be well rounded, be like the prom king and queen, don't rock the boat. Instead, he tells us to be ourselves, embrace who we truly are, and the rest will take care of itself. Liberate yourself. It is a lot easier and less energy intensive than being a pale copy of others.

The regarded-as claim is making a comeback

Quick question: An employee has a facial tic caused by Tourette's syndrome, and his employer fires him for it. Is the employee protected under the American With Disabilities Act Amendments even if the employer does not know the cause of the tic? The proposed new EEOC regulations say, "Yes." The employee has a regarded-as claim. Another example: An employee takes anti-seizure medicine and is not hired for a job as a result. Is he still protected even if the employer does not know the why behind the meds? Yes. Regarded-as claims will be making a major comeback under the amended ADA.

Thinking about implicit bias

I just finished reading "Consequential Strangers: The Power of People Who Don't Seem to Matter . . . But Really Do" by Melinda Blau and Karen L. Fingerman (I spend lots of time on airplanes). Their chapter on strangers and race struck me as interesting. They talk about the implicit bias project, which includes a test to determine if you have an implicit bias. The test displays white and black faces and requires the viewer, as quickly as possible, to pair the faces with either positive or negative adjectives. The test has been given 6 million times and it shows this: White, Asian, Hispanic and even black people show a pro-white bias, although the preference is weakest among black test-takers. Test-takers link males with science and career, and females with liberal arts pursuits and family. By the way, the implicit bias does not correspond with test-takers' explicit preferences. The authors cite research from Harvard scholar Mahzarin Banaji who says that the test does not show "prejudice" but a knee-jerk preference developed from our ancestors tens of thousands of years ago. Their lives depended upon sizing up their surroundings and doing so ASAP -- "This is me (good)" and "This is not me, a stranger (bad, danger)." People are wired this way. How to get around this? First, take the test. Second, don't try to force racial harmony. The site discusses the work of Jennifer Richeson, who found that those is a study who were told to "avoid prejudice" performed more poorly on an interracial interaction exercise than those just told to "have a positive intercultural exchange."(Guess Dr. Samuel Johnson was right: It is better to remind than to lecture.) The authors say Richeson's solution is basic: Stop trying so hard to appear that you are not prejudiced and simply enjoy the experience of getting to know another person.

The fierce boss

I took last Saturday off and read an interesting book by Susan Scott, "Fierce Leadership: A Bold Alternative to the Worst 'Best' Practices of Business Today." She talks about having hard conversations with employees. Her advice: Start with "I want to talk with you about XYZ." Do not say,:"I need to talk to you about XYZ." The first communicates strength and openness; the second communicates weakness and lecturing. She also suggests using the words "at stake." In other words, there will be consequences if the employee's conduct does not change. She notes that "at stake" has an emotional impact. And if the manager is partly at fault for the situation being addressed, acknowledge it. Finally, communicate positive intention by closing with "I want to resolve this issue." Make sure you describe the issue in  specific and concrete terms at the outset of the conversation. I would add this: Think about starting off with telling the employee what this conversation is not about, as in, "This is not about you being fired but is about how you treat your admin." Otherwise, the employee will start gap filling on what he thinks is going on and will not listen to your message. Good book, take a read.