Work Matters

The paradox of psychological safety at work

I've written about the evils of corporate hierarchy. Robert L. Sutton's new book, "Good Boss. Bad Boss: How to Be the Best . . . and Learn from the Worst" provides fresh evidence that hierarchy harms. He talks about a study of drug treatment errors in hospital nursing units. The most efficient and safest units reported 10 times more drug errors than the least efficient and unsafe units. Yes, you read that right. Sutton writes: "This tenfold difference in reported errors was due to psychological safety, not the actual error rate. Nurses with good bosses felt safe to admit mistakes, nurses with bad bosses avoided reporting errors because doing so provoked humiliation and retaliation." My take: You can't fix what you don't know is broken, and you won't know what's broken unless an employee tells you. A candid and transparent culture makes a manager stronger, not weaker.

Thoughts for Thanksgiving

A few days ago, a friend and I shared a goodbye martini. He lives in my building and is heading to Los Angeles for a new job. A baby boomer like me, he is leaving sales to return to a job he has always loved: managing a large health club. It will be his final gig. Change triggers reflection, and here are three of thoughts.

1. Find a bigger purpose to life. Twenty years ago, his goal was to sell as many club memberships as possible. No more. Now, his goal is to make as many people fit as possible. Do that, he says, and the rest will take care of itself.
2. Many of us will live a long time. People remember how you treated them. They ultimately figure out if you are putting them second and yourself first. I like questions and translate his thought this way: Ask yourself whether the main reason you are doing something is because it helps others or because it helps yourself. If you live long enough, you will see the same people or run into their friends. What memory do you want them to have of you?
3. Live for the best return on investment, not the greatest return on investment. Following Nos. 1 and 2 does not mean you will make the most money. You likely will make less. But, as I mentioned when we were on our second martinis, the only sure reward in life is a clear conscience (that’s President John F. Kennedy in his inaugural address).

It struck me that my friend is grateful for the chance to finish his work life finally knowing what, to him, is important. All the rest is gravy. I know he'll be having a great Thanksgiving. I hope you do. too.

How to make an open-door policy a reality

There is a cartoon in the Nov. 15th issue of The New Yorker, showing an executive-looking type with a briefcase talking to a seated administrative assistant. The exec has a stunned look on his face and the assistant is saying, "The open-door policy is only for leaving." The problem with an open-door policy is that employees often don't believe the door is open, especially when they hear things like this: "Joe, I would be glad to talk to you about XYZ, but we need to get the widgets delivered right now. Let’s do it later." The door shuts, and the employee never gets to talk. Here is a suggestion: Train supervisors to take a mental time-out, focus for 60 seconds on the employee’s request and take action, i.e.: "Joe, I really to want to hear about XYZ. Right now, we need to deliver the widgets. Can we meet at 9 a.m. in my office, when I can give you the time and attention you deserve? If not, what is good for you?" The follow-up makes all the difference.

Points for employers to ponder about training differences between military branches

Thinking of hiring a former member of the military? Here’s a question: Does it matter in which branch of the service he or she served? Yes, according to the authors of "Which of These People Is Your Future CEO?" in the November issue of the Harvard Business Review. The bottom line: The Navy and the Air Force engender a process orientation (something that’s necessary when dealing with multimillion dollar planes and ships), whereas the Army and the Marine Corps emphasize flexibility. So, the authors conclude:

• Former Army and Marine Corps officers depend less on familiarity with the company as they transition to leadership roles;
• Small companies are more suitable for former Army and Marine Corps officers; and
• Former Navy and Air Force officers flourish in highly regulated environments, and excel in firms with a process approach to innovation.

To help drive home their point — that where someone served and the training received matters — the authors cite the Marines' leadership manual, which states that adaptability "means a willingness to deviate from normal, accepted practices — even from doctrine — if that is what it takes." This lesson doesn't quite translate when steering a guided missile frigate or refueling a jet fighter. This means that Navy and Air Force officers are forced to specialize; by contrast, Army and Marine Corps officers must operate on principles of broad individual competence. The authors point out that the more flexible and adaptive approach requires that officers need to have absolute confidence in their subordinates. The authors tie it together with this illustration: "If a supply convoy [in the Army or Marine Corps] comes under attack it is expected to organize its own defenses while awaiting support. Drivers quickly become combat infantry. The Navy and the Air Force could not conceivably function on such a basis, given the complexity of their equipment and operating environment." It’s a very interesting article. Take a look.

Two questions to ask when considering a new job

The change of head coaches at the Dallas Cowboys got me thinking about the two questions anyone should ask before taking a new job. First, what conduct does the organization incentivize? Why bother asking? Because what an organization incentivizes is what it values. Second, does the organization hire for the best times or the worst times? Questions clarify, cutting to the real, not the imagined.

Survival of the most adaptable

On Sunday, Oct. 17, The New York Times ran its "Corner Office" interview, this time with Jenny Ming, CEO and president of Charlotte Russe, a clothing chain. Asked for the essential job interview questions, she says she always asks applicants to tell her about their failures, not their successes, and the story does not even need to be about business. Why? To quote Ming:"I think it is pretty telling. What did they do afterward? How did they overcome that?" I agree. Her response reminds me of Darwin’s belief that it’s neither strongest nor the most intelligent of a species that survive but rather those that are the most adaptable to change.

The role of incorrect perception in retaliation, hostile environment claims

Can a retaliation claim be based upon an incorrect perception? How about a hostile environment claim? Let's take the first question first. On Feb. 24, the U.S. District Court for the District of Columbia issued an opinion in Johnson, et al. v. Janet Napolitano about a Secret Service agent’s claim. Her deposition was noticed in a class action suit against the service; her husband — but not her — was a class member (he was also in the Secret Service). She claimed that the service retaliated against her because it thought (by virtue of the notice) that she was a member of the class claim. The service moved to dismiss for failure to state a claim. The court denied the motion and adopted what it called the "perception theory of retaliation": An employer that erroneously believes an employee is engaged in protected activity (such as being a member of a class action) and retaliates on that basis violates the law. The court's opinion notes that the 5th Circuit rejected this theory in McKinney v. Bolivar Medical Center (2009). But I am not so sure. In a 2007 hostile environment claim, EEOC v. WC&M Enterprises, the 5th Circuit looked at this situation: An employee of Indian descent was allegedly harassed at work, shortly after Sept. 11, by co-workers who believed he was an Arab; the employer argued that this incorrect belief absolved it of liability. The 5th Circuit rejected this argument and held that a discrimination claim can be based on an erroneous belief about an employee’s race or national origin. This makes sense. If it were not the law, ignorance would be rewarded twice: the first time when the discrimination occurs and the second when the wrongdoer gets away with it.

How to avoid taking tough legal fights personally

There is an interesting post on an ethics blog I follow, describing the heated debate between Jack Conway and Rand Paul. By the time you read this, one of them will have won the race for the U.S. Senate seat in Kentucky. According to the post, Conway made unfair attacks on Paul in the debate. When it was finished, Paul refused to shake Conway's outstretched hand. The blogger, Jack Marshall, says that while the attacks were unfair, Paul should have shaken hands because it communicates a powerful message: “ ‘This isn’t personal. Whatever happens in the future, my actions will not be driven by personal vendettas, anger, hatred or bias. I will work with friends, strangers and political enemies alike, putting aside personal grudges and grievances, to seek and achieve what is best for the public good and our nation. By shaking my hand, you pledge to do the same.’ ” Does this idea apply to lawyers? Is a handshake the same as saying: Clients first, lawyers’ internecine issues second? Look, I understand that it is hard to put intense feeling aside. Several years ago I was involved in a heated noncompete case. Let me be direct: The lawyer on the other side and I hated one another. It was tempting to put my needs (to beat her) ahead of the client's needs (get the best result). But doing so undermines the very idea of an ordered legal system. I centered myself by turning to art. First, “The Godfather: Part 2,” where Hyman Roth, his anger finally starting to bubble over at Michael Corleone's killing of his mentee Moe Green, says to Corleone, "[T]his is the business we've chosen; I didn't ask who gave the order because it had nothing to do with business." True. No one asked me to become a lawyer. We will get into fights and get our hair mussed up. As with a political campaign, tough stuff is said. You know what Roth would tell us. Second, I thought about William Butler Yeats’ lines in "An Irish Airman Foresees His Death": "Those that I fight I do not hate/Those that I guard I do not love." I know Yeats had a different context in mind, but those words, repeated to myself, centered me and enabled me to be a lawyer for the client, not a guy who just wanted to strike back.

Lead from the front

The cover story for the November issue of the Harvard Business Review is "Leadership Lessons from the Military." I especially enjoyed Michael Useem's article, "Four Lessons in Adaptive Leadership." Two points hit home. First, he writes that there is a 70/70 rule in the military. When you are 70 percent ready and have 70 percent consensus, then act. Useem writes that this rule is a metaphor for balancing deliberation and action. It reminded me of what a corporate counsel told me the other day, when we were discussing a case: “I don't live in a world of 100 percent certainty." Second, there’s a lesson on leadership — real leadship, not title leadership. Useem writes that a combat commander must unequivocally commit to two things: accomplishing the mission and bringing all of his people back from the battlefield, whatever their condition. In the movie “We Were Soldiers,” based on a battle during the Vietnam war, Mel Gibson plays Harold Moore, who told assembled troops and their families before they leave for the war that he would be the first on and the last off the battlefield and that he would leave no one behind. Useem sums up leadership in the military:"Mission first, then team, then self." What kind of leaders do you have in your organization?

SCOTUS pondering cat's-paw doctrine

I just finished reading the briefs in Staub v. Proctor Hospital, in which SCOTUS is teeing up the answer to this question: Is an employer liable for an unlawful employment action if the ultimate-decision maker was not motivated by an unlawful motive but a subordinate who influenced the decision was? Put a different way, what is employer liability when the guy who pulled the trigger is pure, but the guy who loads the gun is not? The 7th Circuit's opinion reasons that for an employer to be liable, the biased decision-maker must have had a singular influence on the decision. In other words, no liability attaches as long as the ultimate decision-maker, in making the decision, relied at least in part on information from an unbiased decision-maker. And, the court went further, holding that if the ultimate decision-maker conducts her own investigation into the reasons for the adverse employment action, then there is no employer liability. The plaintiff doesn't see it this way. He relies upon agency. Here's his one-two punch from his brief: 1. An employer gets tagged for a discriminatory act if the employer empowers the supervisor to take the action he did (such issuing as a written reprimand) and 2. "So long as the official whose actions led to injury was an agent, it is unimportant whether that official was the first or last in the series of decisionmakers involved." I read this as being strict liability. I think the court will adopt something in the middle. Perhaps it will create a presumption that the bad actor 's act influenced the decision, then make the employer rebut the presumption. Oral argument was scheduled for Nov. 2.