Work Matters

Practice gratitude, during the holiday season and all year

I finished writing my new book on the FLSA a few weeks ago. As is the custom, I wrote an acknowledgment page. Before doing so, I re-read the one from my first book many years ago. I sounded a bit like one those Hollywood celebrities accepting an Oscar, parsing out bits of credit here and there to the supporting cast. The focus was, though, all on me. I wrote in the new book the simple truth: This book would not ever have been possible without the help of so many who gave so much. Most people think we own our talent, achievements or identity, but we don't. They are made up of what others give us. My Thanksgiving insight took me a while to get to, but as Justice Felix Frankfurter wrote in Henslee v. Union Planters National Bank & Trust Co., et al. (1949), "Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” All the rest is gravy. I hope you had a good Thanksgiving, and thanks for reading the blog.

You don't have to learn everything the hard way

I went to Atlanta recently and on the plane read "Billion Dollar Lessons: What You Can Learn from the Most Inexcusable Business Failures of the Last 25 Years" from Paul B. Carroll and Chunka Mui. I think we learn more from studying disasters than we do from best practices, and I loved the book. Why did Kodak fail? Why did it not understand the threat from digital cameras? It thought the future would be a variant of the past. So, it shored up what it already was doing and already was comfortable with: film. Recall Motorola and its $2.5 billion dollar loss on the satellite phone system Iridium? Carroll and Mui say the company fell victim to the availability bias -- our minds go to facts that are the most available (because they are vivid, recent or told as part of a powerful narrative) and give them disproportionate weight. The execs at Motorola had done well in the past with grand engineering projects, so why should this one be any different? These grand projects became part of the Motorola narrative. The authors say, "Narratives can be dangerous because they tie up facts in too neat a package or make causal links that aren't really there." These lessons apply not just to business but to firms and individuals. Give the book a read.

When faith collides with fashion

Have you ever shopped at a place called Hollister? It's part of Abercrombie & Fitch. The clothing they sell is hip and tight-fitting. Lekettra Bennett went to work as a saleswoman for them; per company policy, she had to dress the Hollister look, which consisted of (according to the U.S. District Court for the Eastern District of Missouri’s order summarizing her take on it -- you just knew there was a suit lurking here) of "ripped up jeans (or skirts), a little revealing, sporty, California beach style, laid back." But after working there a while, Bennet converted to the Apostolic religion and could only wear skirts that fell below the knee and shirts with sleeves that came to the forearm. Her duties as a saleswoman (or, as the company calls them, "models") thus conflicted with her beliefs, and the company was required to try and eliminate the conflict by offering alternatives so she could continue to work and not violate her faith. It offered her the alternatives of wearing jeans instead of skirts (when a model wore a skirt, according to Bennett, it fell just below the buttocks), wearing short skirts with leggings to cover her legs, or looking in other stores for skirts that would meet her religious requirements and be consistent with the Hollister style. She did not try the third alternative and believed the other alternatives would not be consistent with her beliefs. So she resigned, and the EEOC took up her case. In EEOC v. Abercrombie & Fitch Stores, Inc., the trial court denied summary judgment asked for by the employer, holding that while the employer did what the law requires — talking to the employee about an accommodation — it did not offer an accommodation that would resolve the conflict; thus none of the alternatives was a reasonable accommodation. I disagree with the holding. The law requires discussion but not resolution. Further the court says there was a fact issue on whether giving Bennett what she wanted would have imposed an undue burden upon Hollister. All an employer needs to show to satisfy its burden for the undue-burden defense is that doing what the employee wants would impose more than a de minimis cost. Here, I suggest, having a company change the way it sells and markets its products does impose more than a de minimis cost. The sales concept goes to the heart of what the company exists to do. We will see.

Harness the power of dopamine in the judge's brain

Ever hear of dopamine? It’s a drug released in the brain when people engage in cognitive activity that gives us pleasure. It is addictive. So, what gives us pleasure? A new book gives a few answers. It's called "In Pursuit of Elegance: Why the Best Ideas Have Something Missing" by Matthew E. May. He cites a study in which participants could choose a video to watch. The groups were told one movie had received rave reviews and the other mixed reviews. The study showed that those who picked the one with mixed reviews were more positive and optimistic about their choice -- same deal with products when participants received lots of information on one product and mush less on another. The groups given a lot of information were much less optimistic about their selection than those that were given a little info. Why? The human mind is wired to want to solve puzzles. We want to come to our own wisdom and fill in the gaps in our knowledge. That's how we survived as a species. May says: “Filling in is hedonically satisfying, and delivers a feel good rush that makes you immediately crave more." Here are the lessons for trial lawyers -- or even writers of summary judgment motions and responses: Less is more (now we know why "CSI" is such a popular show; viewers like to figure out the mystery as the story unfolds). Don't pile on; leave some room for the "decider" to find his or her own wisdom. And don't lecture the decision-maker on how obvious the conclusion you seek is. As Dr. Johnson said, it is always better to remind than to lecture. It's a good book, weighing in at only 193 pages. Take a read.

Fort Worth law goes beyond the Employment Nondiscrimination Act

The Fort Worth City Council voted Nov. 10 to amend the city's anti-discrimination law to make transgender, gender identity or gender expression protected classifications, according to a Nov. 16 report from the Bureau of National Affairs. The vote was 6-3. Gender expression (I had not heard of this one) is defined, according to the report, as a person's innate, deeply felt sense of gender that may or may not correspond to a person's body or the sex listed on his or her original birth certificate. I wrote previously on the federal Employment Nondiscrimination Act (ENDA) which prohibits sexual orientation discrimination. The Fort Worth ordinance amendment protects classifications not protected by ENDA.

Questions to ask when others are stuck

Got a friend  in a dead end job with a jerk boss, or perhaps a colleague at a difficult crossroads? Are they are stuck as to what to do? I have blogged before about Susan Scott's book, "Fierce Leadership: A Bold Alternative to the Worst 'Best Practices' of Business Today." Here's another gem from it: She suggests, in situations like those above, asking the right questions to provoke action and adopting a bias towards action. She advocates clearly identifying the issue and then asking the following questions:

• If you and I were talking six months or a year from today, and nothing had changed regarding the issue, what might you be telling me?
• What else could have happened?
• When you consider that possible scenario, what do you feel?

The "feel" part is crucial. She does not say why, but I think it's because feelings generate emotions, and emotions generate action. Otherwise, people get bogged down in the status quo and keep enduring the pain with which we are familiar. This pain deadens us. This is a remarkable book, one that is well worth a read.

5th Circuit and Texas law part ways on the issue of comparable seriousness

Interesting case on Nov. 4 from San Antonio's 4th Court of Appeals, City of San Antonio v. Pedro Gonzalez. The gist from the court on this gender discrimination case: A 26-year employee gets fired. He was being written up for performance. He was in IT. He claims to have stumbled across his supervisor's computer file containing notes on him. It should have been secured but was not. He prints off the stuff about him and takes it home to read. He tells a female co-worker what he found. She takes a week but reports the unsecured file to management; he does not. She says she accessed only the folder,and unlike her male colleague never opened a document within the folder. He admitted that he looked through the file to see if he was going to be fired; she said she looked at it in order to determine if confidential information was exposed. Anyway, he gets fired, but she does not. He sues for gender discrimination and wins, then the appeals court takes it all away. He argued that the differing treatment supported the verdict. Court of appeals: No, the two of you were not similarly situated (your actions and motivations were different), thus dissimilar treatment is nothing more than dissimilar treatment and not evidence of discrimination. And the court said that it must examine the facts as they appeared to the person(s) making the decision to terminate -- so far, so good for the employer. This follows 5th U.S. Circuit Court of Appeals law. But the kicker under Texas law is that a court must look at whether the policy violation of the male and the female are of "comparable seriousness." Here they were not, so the employer cleared that extra hurdle. My concern is that under Texas law the somewhat fungible, vague and inherently subjective idea of "comparable seriousness" will allow juries and judges to second-guess employer decisions. Lawyers need to be aware that the 5th Circuit and Texas law part company on the comparable-seriousness issue.

Zero tolerance for zero tolerance

A client asked the other day about adopting zero-tolerance policies: An employee commits one act in violation of the anti-harassment policy and gets fired. Or a worker engages in one violation of the ethics code and is shown the door, one transgression of the policy against workplace violence and is cashiered out. My take: I have zero tolerance for zero tolerance policies. They are the easy and lazy way out of often knotty issues. It was H.L. Mencken who remarked that every complex problem has a simple and quick solution, and it is usually wrong. Zero tolerance ties an employer's hands. There are often mitigating circumstances that the boss must take into account. Several years ago I read about a case of a nurse slapping a patient. A zero-tolerance policy is in place; she is fired and sues. Her claim: He was sexually harassing me, I previously asked my company for help, they gave none, so I popped him when he grabbed my breasts. Her slap was protected activity opposing sexual harassment; terminating her for the slap was thus in violation of Title VII. Here's a tough part: Sometimes one of an employer's best and longer-term employee is the one caught in the mindless web of zero tolerance policies. You can't show appropriate mercy. The policy says so.

Lessons about anger from sports and sangha

It was an interesting few days in sports. Elizabeth Lambert played soccer for the University of New Mexico. Last week, among other things she allegedly yanked the ponytail of an opposing player, got tossed from the game and is now on suspension. On Sunday, Mike Smith, the coach of the Atlanta Falcons, allegedly got into a physical altercation with a Washington Redskins player. Lawyers are not all that different. Ever feel like yelling at opposing counsel or daydream about putting an obnoxious witness in her place? We all have. How do we stop ourselves from boorish behavior we may regret? Pema Chodron, in her new book, "Taking the Leap: Freeing Ourselves from Old Habits and Fears" suggests asking this question before flying off the handle: "Will I feel better when this is over?" In other words, if I give into my emotion, will I be better off or worse off? She says that to ask the question is to answer it because aggression breeds aggression. She suggests taking a pause, the length of three breaths. It is hard because habit tells us to react. When we react we feel secure. Anger brings false clarity; it feels good. I get that. But as my mom told me in explaining the facts of life, “A moment's pleasure often brings a lifetime of regret.”

Three questions to help resolve ethics questions

I am a big fan of questions: They focus, they clarify, and they resolve. So, I was struck by the "Three Rules of Thumb" included in the West Point ethics system, as explained by Ronald A. Howard and Clinton D. Korver in "Ethics for the Real World: Creating a Personal Code to Guide Decisions in Work and Life." If a cadet can answer all of the following three questions "no," then a decision passes muster. If not, it is not put into action. Here they are:

1. Does this action attempt to deceive anyone or allow anyone to be deceived?

2. Does this action gain or allow the gain of privilege or advantage to which I or someone else would not otherwise be entitled?

3. Would I be dissatisfied by the outcome if I was on the receiving end of this action?

Questions are more valuable than statements because statements are static. They are like fish on ice at the local market. A question engages, provoking thought. I think that company or firm mission statements should consist of questions, not the blah, blah, blah of a statement.