Work Matters

Great minds teach how to sidestep nettlesome opposing counsel

I was deposing a plaintiff not long ago in a difficult and emotional racial harassment suit. The plaintiff's lawyer laughed at some of my questions, told me to move on, snickered — you get the idea. Once, I would have reacted and engaged him, but not now. Instead, I ignored him. Why? To engage would not have moved the ball forward for my client, and it would have derailed my questioning (which was getting me the answers I wanted, which in turn was making him apoplectic). Yes, it would have felt good to figuratively slap him by responding, but it would have been pointless. How to avoid the temptation to hit back? Think William Butler Yeats and Marcus Aurelius. In "An Irish Airman Foresees His Death," Yeats wrote, "Those that I fight I do not hate/Those that I guard I do not love." That centers me. And Aurelius, a Roman Emperor and Stoic, taught us in his "Mediations" that we are not in control of how others act, but we are in complete and total control of how we respond. Aurelius in Book 8, 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. . . ." That focuses me.

Don't use unemployment as a proxy when it's a poor predictor

Let’s play claim or no claim. An employer has an absolute rule that applicants for employment are rejected if, at the time of their application, they are unemployed. The EEOC says: potential claim. According to an interesting article in BNA's Employment Discrimination Report for the week of February 23, "EEOC Ponders Potential for Hiring Bias In Excluding Unemployed Job Applicants" by Kevin P. McGowen, the EEOC believes that such a rule has a disparate impact on people who are black, Hispanic, have disabilities, and are older workers. According to the article, a Feb. 16 EEOC hearing took testimony on this issue. The hearing dealt with an employer argument that current unemployment status is a proxy for poor performance. Testimony at the hearing: Current employment status is a poor proxy for successful job performance. My take: Employers must always be wary of absolute rules. Why? Civil rights laws are designed for individual assessments, not barroom generalities. Employers should tread carefully in this area. The EEOC is watching.

In the name of productivity and consistency, employers should permit employee Internet access at work

Employers should allow employees access to the Internet at work. It is pointless to try and control it. And now, there is evidence that doing so makes them better workers. So reports James Surowiecki in this week's edition of The New Yorker, "In Praise of Distraction." Researchers at a Danish university asked participants in a study to watch a video of people passing a ball and to count the number of passes. Group No. 1 watched a funny, 10-minute video before their screens asked them to start this task. Group No. 2's screens told them they could watch a funny video if they clicked a button, but they were told not to do so. Group No. 2 could hear their Group No. 1 colleagues laughing away. Once the funny video was over, both groups started to count the number of passes. Those who hadn't watched the comedy video made more counting mistakes than those who had. Surowiecki writes, "You might have thought that those who had spent the previous ten minutes laughing would become distracted and careless. Instead, it was the act of following company policy and not clicking that button that eroded people’s ability to focus and concentrate.” The bottom line: "[A]sking people to regulate their behavior without interruption (by, say, never going online at work) may very well make them less focussed and less effective." So what should employers do? Here is my take: Dump the multipage policies on internet usage and replace it with a good judgment policy: “We hired you for a variety of reasons, including our belief and trust that you will exercise good judgment in performing your job responsibilities. In short, we trust your judgment and character. So, with respect to internet usage, personal use at work is permitted. Use common sense. By way of example, no visits to inappropriate web sites, such as those that are sexually oriented.” This is really all employers need. It amazes me that employers bestow all sorts of titles on employees that imply trust (partner, associate, team member) and then treat them like children by promulgating hundreds of rules in hundred-page handbooks. My mom told me, "If you say something is important, than treat it as important."

Brevity is the soul of a good speech

Short talks are the best talks. They are more focused and thus make a greater impact. In turn, listeners remember them. Christopher Witt, in collaboration with Dale Fetherling, makes this point in "Real Leaders Don't Do PowerPoint: How To Sell Yourself and Your Ideas." They provide an interesting list of speeches and how long they lasted: Patrick Henry and his"Give me liberty or give me death" speech was six minutes. The Gettysburg Address was all of two minutes. Franklin D. Roosevelt's address to the nation after Pearl Harbor was over in seven minutes. The Rev. Dr. Martin Luther King Jr.'s "I Have a Dream" speech was only 16 minutes. And after the Space Shuttle Challenger tragedy, Ronald Reagan spoke to the nation for less than five minutes. So why do lawyers think a longer speech is better? I think it’s because we are trained to cover all bases and develop all lines of argument; we fear criticism for leaving something out. It's better not to take a risk, the reasoning goes. But that’s wrong. The art of persuasion and inspiration is the art of what to leave out. The authors make a telling point: "Also, in this age of PDAs, instant messaging, and other electronic distractions, audiences don't have the attention spans they may have once had. What's more, you want to leave your audience wanting more of you, not less." It's just like dating: Keep a date short, and if you need to break up, get to the point.

Say "cheese"

Federal courts continue to police employers who allegedly retaliate against employees who seek to complain of discrimination. Look at the 7th U.S. Circuit Court of Appeals’ Feb. 18 decision in Loudermilk v. Best Pallet Co., et al. Judge Frank H. Easterbrook sketched out the facts. A black employee complained to his supervisor that Hispanic employees were being treated more favorably than him because of his race. The supervisor told him, "Put it in writing." The next day he did and was "fired on the spot." The trial court granted summary judgment to the employer because of conflicting evidence on whether the supervisor read the note, to which Easterbrook tartly responded, "What did [the supervisor] think was in the note he received the next day? An invitation to a birthday party?" The judge also commented that the employer came close to confessing to retaliation. How? The employer said that one of the reasons for termination was the employee's violation of its rule against taking photos in the workplace. Easterbrook commented: "If the reason that [the employee] snapped the photos was to bolster his claim of discrimination, then forbidding picture-taking looks a lot like an attempt to block the gathering of evidence during an investigation."  Employers need to ask themselves: Will my reason for termination suggest that the company was seeking to frustrate the employee's gathering of information to support his claim of discrimination? If so, they should re-think the decision.