Work Matters

Should I stay or should I go now?

Dec. 18 the Texas Supreme Court issued its opinion in Vanegas, et al. v. American Energy Services, et al. It was 9-0 and a pro-employee opinion, reversing Eastland's 11th Court of Appeals. As the court took pains to point out, it's a good opinion for us all. Here are the allegations as recited in the court's opinion: An employer is on shaky financial ground. Several employees talk to management, which supposedly says that if the employees don't bolt and stick around until a sale or a merger, they will get 5 percent of the sales price. They do so. The triggering event occurs, but they don't get their money. A suit follows. The appeals court said that the the at-will doctrine barred the claim; all the plaintiffs were at-will employees and could be terminated at any time prior to the triggering event. Thus, there was no enforceable contract, just a unilateral promise. The Supreme Court said no: There was an enforceable contract because the employees fulfilled their part of the bargain by staying around until a sale, and thus their conduct created an enforceable agreement. The court noted that if this was not the case, then all wages, salaries, pension payments, etc. could be avoided by the invoking of the at-will doctrine. The court provides a interesting and detailed discussion of contract law (took me back to first-year contract law at Tulane University Law School). The court sent the case back to the trial court to sort out what was said and by whom.

The power of faith in a pluralistic country

I think religious discrimination claims will start surging. The United States is becoming an even more diverse country, and our population is growing older. As people age, we realize that life may mean more than simply amassing stuff; for some, that may mean turning to religion. More aging people who seek meaning in faith plus a wider variety of religious beliefs = more litigation. So I read with interest a Dec. 8 opinion out of the 7th U.S. Circuit Court of Appeals, Patterson, et al. v. Indiana Newspapers Inc. In some ways, it’s a routine case: Employees claimed they were terminated because their Christian beliefs are that homosexuality is a sin. The 7th Circuit said no, and, in a thoughtful opinion, the judges said the employees were let go because of poor performance. The opinion mentions three points of interest. First, it recognized that a claim of religious discrimination exists where a supervisor makes an adverse employment decision -- though he or she is also of the same general religion as the employee -- because he or she does not like the employee's particular brand of the religion. Here, where some Christians think being gay is a sin, others do not. This holding is correct. The wonderful thing about our civil rights laws is that they focus on protecting individualized beliefs and allow for a country that is, through our system of justice, one and yet pluralistic. Second, the court looked at the issue, not often seen, of whether the plaintiffs established, as part of their prima facie case, that they were meeting the legitimate expectations of the employer. Often, we just cut to the issue of whether the employer's reasons for the employment action are pretextual. Third, one employee made a constructive discharge claim (work atmosphere so terrible that the employee must resign). But the court looked at her departing e-mail to her bosses, in which she talked about the "privilege of working " for the newspaper and that she "enjoyed and appreciated it more than I can say." As the 7th Circuit noted, "This is not the statement of an employee who thinks her workplace is unbearable." I have had constructive discharge cases before with these types of departing messages, but this is the first decision I have read that factors it into the decision's legal reasoning. It’s an interesting and useful case from several perspectives.

Race and the disclosure and dissembling thereof

There was an interesting piece in The New York Times back on Dec. 6: “'Whitening' the Résumé." Michael Loo reports that some young African-Americans, when looking for jobs, take steps to cover up their racial identity in their résumés. He reports that an African-American woman named Tahani Tompkins, who is struggling to find a job, changed the name on her résumé to T.S.Tompkins. Another listed just the school she received her master’s degree from, leaving out the historically black college from which she earned her undergraduate degree. Loo cites a study in which résumés were submitted, one group with "white-sounding names" and the other with "black-sounding names." The result? The first group had a greater chance of getting an interview than the second. He also cites a law professor from New York University, Kenji Yoshino, who notes in his recent book "Covering: the Hidden Assault on Our Civil Rights," that other minorities, not just African-Americans, are taking steps in their résumé writing to downplay their racial and ethnic roots.

The dirty realities of group-think

My favorite part of a trial is when the judge reads the instructions and tells the jurors that deliberations should involve discussions, the questioning of their beliefs and a willingness to change their minds. I really want jurors to do that. Unfortunately, I don't think they do. A new book on group dynamics confirms my thinking: "On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done” from Cass R. Sunstein. (See my earlier blog on the book here.) Think about conformity pressure. Sunstein cites the famous experiments of Solomon Asch, involving groups with one subject and several "plants." The group was asked to say whether three lines were the same length. The lines were not, but from time to time the plants said they were. What happened? At least once in the series, the subject cratered and agreed with the majority, rejecting — quite literally — what her eyes were telling her. The phenomenon is called "knowledge falsification." To keep the good image people hope others have of them, they will profess what they know is not true. Surely, deliberations that are open and honest will free one's mind? Not really. Sunstein cites a Colorado experiment in which a group of blue-state type thinkers and a group of red-state type thinkers were assembled and asked a question: Should the United States sign a treaty to stop global warming? The people in each group were polled anonymously and had mixed feelings. The groups were then asked to deliberate for a mere 15 minutes, blue with blue, red with red. Know what? When like-minded people deliberated together, they ended up taking a more extreme position than their pre-deliberation inclinations. What happens when a group predisposed to believe a certain way hears a balanced approach? Won't that make a difference? No, according to studies Sunstein cites. What occurs is that the group is affected for a brief time to consider the other side's arguments (I think because we all like to believe we are fair), but then the group often ends up believing a more extreme version of what members already believed. Presenting the group with facts only made members harden their original positions. This goes by the name of "biased assimilation." There are lots of lesson here for trial lawyers to ponder before facing the jury pool.

Get more done by focusing on focus, not on time management

A few weeks ago, I hosted a launch party for my new book. A guest mentioned that she wanted to write more and asked if I had any tips on time management. I don't think the key is time management; rather, it's focus, deciding what is important and then saying "yes" to some things and "no" to others. To get this book done, I cut back on speeches; to work more on my blog and podcasts, I stopped doing the more routine discovery work in cases and gave it to an associate. But focus does not equate to a single-minded intensity. As I tap these words out, I am in a cool Mexican restaurant in my building, enjoying a beer and occasionally looking up to watch the Cowboys game. Some things can be done while enjoying others. A final thought: Read "The Truth About Getting More Done" by Mark Fritz, 42 chapters, each limited to two pages. He suggests the following:

1. determine your focus based on the success you desire;
2. remember your focus is always a balance of your professional and personal needs (I have no family, so it's just me and my conscience); and
3. use your focus as your criteria for saying "yes" or "no" to requests for your time and energy. 

Prepare for the death of unnatural management

Seth Godin, a thought leader on business, brought out a free book the other day. He asked 70 other thinkers to write on the trends they see coming or are here now. Take a read. One section on autonomy, by Daniel Pink, struck me. Here’s part:

“Management is not natural. . . . Somebody invented it. . . . Management is great if you want people to comply — to do specific things a certain way. But it stinks if you want people to engage — to think big or give the world something it didn’t know it was missing. For creative, complex, conceptual challenges — i.e., what most of us now do for a living — 40 years of research in behavioral science and human motivation says that self-direction works better.”

Then he refers to the importance of people having autonomy over the four most important aspects of their work: 1. task (“what they do”), time (“when they do it), 3. technique: (“how they do it”), and 4. team (with whom they do it). I would add this: The days of organization-chart authority (Do it because I say so) are still with us, but they’re giving way fast to the days of moral authority (Do it because we share a common purpose and mutual respect). This shift, as well the transition to a better way to think about management that Pink writes about, may be slow in coming, but come they will.

What are you reading?

Since the ABA Journal named "Work Matters" a Top 100 Blawg, people are asking me what blogs I read frequently. I read a number of them, but in terms of frequency, these my current favorites (subject to change): Cognitive Daily, a daily helping of how our minds work; The Client Revolution, lawyer Jay Shepherd's direct, perceptive and honest take on the law as business; The Word on Employment Law With John Phillips, John Phillips' take on the world, including employment law (I love his musing on the "man gene); and Jottings by an Employer's Lawyer, written for the past five years by fellow Texan and employment lawyer Mike Fox, with wide coverage on lots of good stuff, including keeping an eye out for big verdicts. Take a read on some or all of these blogs.

No jury trial for plaintiffs in ADA retaliation cases, 9th Circuit rules

On Dec. 11, the 9th U.S. Circuit Court of Appeals joined the majority view that plaintiffs in Americans With Disabilities Act retaliation cases are not entitled, per a detailed analysis of the ADA, to compensatory or punitive damages and, therefore, not entitled to a jury trial. The opinion contains an excellent and exhaustive discussion of the case law pro and con. The opinion also explains why the plaintiff's best argument -- that the ADA is a remedial statute and therefore should be read broadly -- does not cut it. Take a read: Alvarado v. Cajun Operating Co. dba AFC Enterprises Inc.

Gauging the strength of beliefs

I have blogged about the challenges facing advocates when group decision-making is in play. What's to be done? In Cass R. Sunstein’s book, “On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done,” he notes that when a person is dug into a position, it is best to have a contrary argument delivered by people with whom he closely identifies. Exhibit A: Colin Powell, a Republican, endorsing then-Sen. Barack Obama for president. Sunstein also mentions that people will listen to both sides if they do not have a pre-wired belief that one is right and the other wrong. How can a lawyer figure out the strength of a belief? Try this in voir dire: Ask the key question, but then say, "Can I have a show of hands on whether you strongly agree, agree, feel neutral, disagree or strongly disagree?" That gives a sense of just how strongly a potential juror holds a belief. “On Rumors” is a good book and only 88 pages — well worth the time.

How "Defending Your Life" can teach lessons for lawyers

I had breakfast with a friend of mine over the weekend, and over oatmeal (OK, to be honest, he had oatmeal, and I had eggs and several pieces of crispy bacon) we talked about movies that teach lawyers to be better lawyers, a topic I have written on before. We focused on one movie in particular that he had never heard of and I had not written on, "Defending Your Life" by and starring Albert Brooks. Brooks plays a guy on the fast track who crashes his new BMW into a bus. He dies and goes to Judgment City, where he is assigned a lawyer, played by Rip Torn. The issue: Will he be allowed to move on to the next level? Torn tells him there will be an examination of his life to see if he does. Paraphrasing a distressed Brooks, "You mean my life will be placed under a microscope, dissected and examined in a trial?" Paraphrasing Torn, "Well, first of all, we don't like to call it a trial, and second of all, yes." I always laugh when I think of that scene. I also use it sometimes with clients who are deciding whether to take an employment action. We laugh, but it imparts a key message to them: We need to take our time, think the decision through and be ready to justify it, just like Brooks had to do in the movie. Did he make the next level? Watch the movie. It is one every lawyer should see.