Work Matters

Growth and evolution in the law on protected concerted activity

I started my legal career at the National Labor Relations Board, and I tried my first case there in 1981. We were prosecuting a transport company for terminating an employee for engaging in protected concerted activity. It is a violation of the National Labor Relations Act to fire or otherwise take adverse action against an employee who acts in concert with other employees to protest working conditions. But, is it a violation if the employer does so because it believes that the employee is about to engage in protected concerted activity but has not yet done so? On Jan. 28, the NLRB said, “Yes.” Here are the facts from the board's opinion in Parexal International LLC and Theresa Neuschafer: An employee was unhappy because she believed a group of South African co-workers were receiving raises and she and her American coworkers were not. She was called into a meeting with human resources and operations and told that the company was concerned that she was spreading rumors that the South Africans were receiving better treatment and higher wages than other employees. She was asked if she told this to anyone else, and she said only to her supervisor. Six days later she was fired. The NLRB brought a complaint against the company, but the administrative law judge tossed it, because the employee had not yet joined together with co-workers. The board disagreed, holding by a 2-1 vote that " 'a pre-emptive strike to prevent her from engaging in activity protected by the Act' " is just as much a violation as terminating an employee who has already done so. The board went on to note that the critical issue is not what the employee did but rather the employer's intent behind what it did. The board thought the critical testimony was the employer's question about whether she had discussed her beliefs with her co-workers (the NLRA doesn’t cover supervisors). The law grows, it evolves. I like that.

The power of potential to pique imagination

The March issue of the Harvard Business Review has an interesting interview with Zakary Tormala entitled "Defend Your Research: Experts Are More Persuasive When They're Less Certain."  His work deals with how certainty affects our perceptions. Here is one experiment he ran: Present people with letters of recommendation for a job, describing one candidate as "high potential" and the other as "high achieving." People find the letter describing someone as high potential more interesting and possibly more persuasive. Why? Here is Tormala: "Proven achievement is very certain. It's less surprising and less interesting to think about. Potential is uncertain and kind of exciting. You can imagine many outcomes." That's true in dating and true in sports. He cites one study using pro athletes. Given identical stats for a veteran player's first five years of performance and a rookie's predicted five year performance, study subjects elected to compensate the rookie almost $1 million more in year six. I think this research also teaches that people like to make up their own minds. It’s something to think about when the next opening statement and closing argument comes around.

Mrs. Palsgraf and the cat's-paw doctrine

Remember being a 1L, studying about Mrs. Palsgraf and proximate cause in torts and the fruit of the poisonous tree in criminal procedure? I never thought I would see them again, but I was wrong. The ideas popped up the SCOTUS decision in Staub v. Proctor Hospital. The issue: Is an employer on the hook for discrimination if the person who fires the employee is pure of heart but relies on biased actions (such as a write up) by a subordinate? The answer: Yes. The court reasoned that tort law governed the question, and that if a biased supervisor's action was a proximate cause of the adverse employment action, then the employer is on the hook. And proximate cause only requires some link between the biased act and the adverse employment action. So, the biased supervisor's action does not need to be the proximate cause, just a cause. As Justice Antonin Scalia pointed out, "[I]t is common for injuries to have multiple proximate causes." Or to put it in crim-pro terms, the adverse employment action taken by the ultimate decision-maker is a fruit of a poisonous tree. What about the employer's argument that the ultimate decision-maker's independent investigation into an employee's accusation of bias (and rejection of same) insulates the employer from liability? Scalia's slashing response:"Nor do we think the independent investigation somehow relieves the employer of ‘fault.’ The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment action." What to do? When an employee alleges that discrimination caused an adverse employment action, do not circle the wagons. Look into it with an open mind. In litigation, ask the ultimate decision-maker whether she would have made the same decision regardless of the biased action and why. Run a risk assessment on an adverse employment action before implementing it. Is the action consistent with previous decisions in similar circumstances? Is there any reason the supervisor would make up the reason for the adverse action? Finally, train supervisors to be fair and consistent and to listen to employees. Make no mistake, this decision is a big victory for employees, but it does not leave employers helpless.

SCOTUS: Oral complaints can qualify as "filed" for FLSA purposes

Today the U.S. Supreme Court issued its long-awaited decision in Kasten v. Saint-Gobain Performance Plastics Corp.The issue? To merit protection under the Fair Labor Standards Act’s anti-retaliation provision, must an employee make a written complaint of an FLSA violation to an employer, or will an oral one suffice? By a 6-2 vote, with Justice Elena Kagan recusing herself, the court said an oral complaint is good enough. The decision hinged on the words of the FLSA. The law, enacted in 1938, forbids employers from firing or discriminating against any employee because such employee has "filed any complaint." What, then, does it mean to "file" a complaint? Well, SCOTUS reasoned that the phrase “any complaint" suggests a broad interpretation that would include an oral complaint. That's the English lesson for the day. But there is a history lesson, as well, from SCOTUS, in a majority opinion written by Justice Stephen G. Breyer (pictured): "Why would Congress want to limit the enforcement scheme's effectiveness by inhibiting use of the Act's complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?" As Justice Ruth Bader Ginsburg pointed out in oral argument, many of those most affected by the law would be immigrants whose language and written skills could be lacking. SCOTUS lays out the meaning of "file,” saying it agrees with the government’s claim at oral argument that a complaint qualifies as filed when “ ‘a reasonable, objective person would have understood the employee’ to have ‘put the employer on notice that [the] employee is asserting statutory rights under the [Act].’ ” SCOTUS goes on to illuminate this standard: "To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection." Nice phrasing: a "call for their protection." It goes to SCOTUS’ belief, in this case and others, that if Congress gives an employee a right (say, to overtime pay), then courts must protect the employee's access to that right. I think SCOTUS came to the pro-access decision it wanted to reach and backed into the reasoning. It reminds me of Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass," when he explains to a puzzled Alice, "When I use a word, it means just what I choose it to mean — neither more nor less."

Back to basic on the defense

Here are some nuggets for employers when defending discrimination claims, courtesy of the 5th U.S. Circuit Court of Appeals’ Feb. 4 decision in Goring v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College. The court sketched out the facts: A professor is denied tenure, because she files her application two months late. She claims race discrimination. She timely applies the following year and gets tenure. However, after that, LSU undertakes a "post-tenure" review of her performance based on student complaints on her teaching skills. She claims retaliation for her earlier complaint to the university for its failure to grant tenure. The trial court dismisses both claims on summary judgment, and the 5th Circuit affirms. Why? On the discrimination claim, she did offer evidence that nonminority applicants submitted untimely applications that were considered. But, as the 5th Circuit noted, "[T]hese other instances involved merely de minimis variations from the deadline that are inapposite to Goring's extremely late application." Thus, no discrimination. What about the retaliation claim ? Yes, something adverse happened to her after she engaged in protected activity. But the test is not whether something happened to her that that she did like. Instead, as the court noted, for an employment action to be considered objectively adverse, it must be harmful to the point that it would dissuade a reasonable employee from making or supporting a discrimination complaint. The test is not met here, because, as the 5th Circuit noted, "[A] reasonable employee would not expect to be insulated from review of her questionable job performance simply because she filed a prior complaint of discrimination." I like this case. It talks about the basics — the blocking and tackling that it takes to mount a successful defense. Never forget the basics.

Roman emperor and Stoic philosopher teaches lessons about control

I am interested in what lawyers can learn from the classics. I am also interested in how to deal effectively with dysfunctional lawyers. And when I say dysfunctional, I mean the type with whom you can’t reason, for whom a threat of sanctions by a judge means zero, and who delight in causing an uproar, not quelling one. So I was struck one recent snow day by a passage from the Mediations by Roman emperor and Stoic philsopher Marcus Aurelius. His big insight is that you can't control what another does, but you are in total and complete control of how you react to it. Here is a quote from Book VIII, 47-49: "If you suffer pain because of some external cause, what troubles you is not the thing but your decision about it, and this it is in your power to wipe out at once . . . abide always by the first impressions and add nothing of your own from within, and that's an end of it. . . ."  It is not within a person's power to change what a person says or does, but it is within his power to determine how he reacts to it. This is an especially useful insight in dealing with the dysfunctional, because they want a reaction; it fuels their dysfunction like warm water fuels a hurricane. Aurelius anticipated the next question, which is more of a lament: Why can't we all  just get along? Here he is in Book 8, passage 50:"The cucumber is bitter? Put it down. There are brambles in the path? Step to one side. That is enough, without also asking ‘Why did these things come into the world at all ?’ Because the student of Nature will ridicule the question, exactly as a carpenter or cobbler would laugh at you if you found fault because you see shavings and clippings from their work in their shops." That's the way it is, so suck it up, as Aurelius would counsel.  Want to read Aurelius? A traditional translation is by A.S.L. Farquharson published by Everyman's Library. A more modern translation is from Gregory Hays, published by The Modern Library. Both have excellent introductions.

Boots and ballots can communicate and reinforce what makes the business unique

I read with interest the blog post about new partners in Susman Godfrey getting a pair of cowboy boots. It reminded me of an interesting article from the March 2007 issue of the Harvard Business Review, "What It Means to Work Here"by Tamara J. Erickson and Lynda Gratton. Erickson and Gratton argue that, to succeed and retain the best employees, a company should provide a signature experience that sets the company apart and that explicitly communicates what makes it unique. The authors write about Whole Foods, where new employees, after a four-week period, are voted on by department coworkers; it’s an up-or-down vote on continued employment. The incentive to get the retention decision right is this: The company determines employee bonuses 13 times a year, not by how well an individual performs but by how well the department performs. The authors write that the effect is that employees choose teammates carefully, because it is in their interest to have "workers, not buddies." The overarching message from the Whole Foods' signature experience is that Whole Foods values teamwork. Explaining the signature experience in the interview process weeds out those who are more comfortable with being lone rangers than teammates. This is not a value judgment but a matter of cultural fit. The result, as the authors point out, is less turnover. There is alignment. Congrats to the Susman Godfrey new partners. The boots fit because the culture fits.

The ins and out of tortious interference allegations after employees depart

Let’s play claim or no claim. Company A has contracts with customers, which provide that the customer can cancel on 30 days’ notice. Employees of Company A leave to go to Company B. Sure enough, two customers invoke the 30 day trigger and, after the expiration of 30 days, give their business to the departing employees. Company A sues the former employees for tortious interference of contract. Result? Houston’s 14th Court of Appeals looked at this issue in Faucette, et al v. Chantos, et al. (concurring and dissenting opinion here). There, the jury said: Claim. But the trial and appeals court said “no” and set aside the verdict. Why? It is not unlawful for a person to induce an entity to exercise its legal rights. Yes, it would be a different result if the former employees induced a breach of the agreement during the 30 day period, but that was not the case here. Yes, it would be unlawful if the former employees prevented Company A from performing its contracts with the customers. Again, not the case here. The 14th Court said that Company A's real beef was interference with its prospective, not current, relationships with the customers. But the 14th Court said that, to establish tortious interference with prospective business relationships, Texas law requires Company A to show that the employees' conduct also was actionable under a recognized, independent tort. Company A did not and thus had no claim. All this comes from the court's Sept. 23, 2010, opinion. Good stuff, take a read.