Work Matters

You are your own startup: Authors offer three critical questions lawyers should ask themselves

I just finished reading "The Start -Up of You: Adapt to the Future, Invest in Yourself, and Transform Your Career" from Reid Hoffman and Ben Casnocha. The title struck me. Charles Darwin never wrote that it is the survival of the fittest. He argued that it is the survival of the most adaptable. When a person invests in herself, rather than waiting for someone to invest in her, she gains control of the outcome and is not just a passive observer. The book tells readers how we each become our own startups. The book helps us get there. Here are three pointers from the book. No. 1: Engage in this fill-in-the- blank exercise: "Because of my (skill/experience/strength) I can do (type of professional work) better than (specific types of other professionals in my industry." No. 2: Review your calendar and emails for the last six Saturdays, and ask yourself this question: How did I spend this time? Is how I spend my free time in alignment with my true aspirations? No. 3: Create an investment plan in yourself. Take a course, get a coach or take a trip overseas if doing so will enhance your aspirations. Also, the authors suggest recruiting three close advisers, telling them of your plans, and asking for their candid thoughts. I was having lunch with a lawyer not long ago. As I was biting into my cheeseburger, he asked, "How many solo practitioners do you think there are in Texas?" I was glad my chewing gave me time to think. If not, I would have blurted out some State Bar figure I recalled reading. But, after having time to reflect, I realized the answer to his Zen-like question: "Each of us."  Great book, give it a read.

Can an employer require a job applicant to have a high school diploma?

Let’s play claim or no claim. May an employer require an applicant to have a high school diploma? The answer is "no” in some circumstances, according to an informal opinion letter issued by the EEOC on Nov. 17, 2011. The EEOC argues that an employer violates the ADA by adopting such a standard if it "screens out” from employment an individual who is unable to graduate because of a learning disability. There is one escape clause, according to the EEOC: The employer may adopt a high school diploma standard if the requirement is job related and consistent with business necessity. But even then, the employer must allow the applicant to demonstrate an ability to perform the job's essential functions, with or without a reasonable accommodation. I am old enough to remember job applications floating around with questions on marriage status, age, or children’s names and ages. The law snuffed these out, as with questions touching on disability status, because the purpose of American law, when you wipe away the makeup, is to treat people as individuals, no more and no less.

An employee handbook/arbitration agreement issue that needs fixing -- fast

On Jan. 25, the 5th U.S. Circuit Court of Appeals struck down 24 Hour Fitness’ arbitration policy in John Carey, Individually and On Behalf of Other Employees Similarly Situated v. 24 Hour Fitness, USA Inc. The court laid it out: A former employee sued, alleging violation of the Fair Labor Standards Act and arguing he and other employees should have been paid overtime. The case needed to go to arbitration, claimed 24 Hour Fitness. But the court refused, and the 5th Circuit agreed. Why? The arbitration agreement was contained in the employee handbook, which stated that 24 Hour Fitness "has the right to revise, delete, and add to the employee handbook." The court said this meant that the company's promise to arbitrate was illusory. Under the handbook’s terms, the company could demand arbitration from an employee, pull an abracadabra and essentially say, "Oops! We are revising the policy. There is no more arbitration agreement!" Like a famous magician used to say, "It's magic." The irony is that 24 Hour Fitness would be highly unlikely to do so, because employers generally prefer arbitration. After all, it was seeking arbitration in this very case. But here intent was irrelevant; all that mattered was the handbook language. There are lots of arbitration agreements floating around Texas with this very same infirmity. Employers need to fix them — pronto.

The changing definition of a covered disability

Recently, the U.S. District Court for the Western District of Texas in El Paso denied an employer's motion for summary judgment on the issue of whether a plaintiff was disabled under the Texas Commission on Human Rights Act. (The TCHRA was amended effective Sept. 1, 2009, to reflect amendments Congress made to the ADA. The court ruled on several other interesting TCHRA disability issues, but I want to stick with just this one for now.) The court's opinion in Maria Molina v. DSI Renal Inc. comes down to this: The plaintiff is covered if she is 1. substantially limited in 2. a major life function. Here, she could not lift more than 20 pounds or engage in extreme bending at the waist because of a back condition. Stressing that the amendments directed courts to take an expansive view of what qualifies as a covered disability, the court essentially asked whether a major life activity was involved. Its answer was "yes" because the amendments state that "lifting" and "bending" are major life activities. What about substantial limitation? The court said that pain experienced when performing a major life activity satisfies this prong of the test. The opinion has two interesting corollary holdings. First, the fact that the plaintiff testified she "learned to tolerate the pain" was irrelevant because the EEOC regulations (which courts use to interpret the ADA Amendments Act of 2008 and the TCHRA) state that an ability to function despite the physical impairment does not foreclose coverage for an employee. Second, the fact that a mitigating measure (here, taking pain relief medication) lessened the pain did not foreclose, per the amendments, a finding of coverage. Here is what is important: The court acknowledged that before the amendments, there likely would be no coverage. Now, there is. Take a read.

Lawyers should stop trying to be well rounded, and focus on their strengths rather than their weaknesses

Friends of mine just finished shepherding children through the college application process. When I applied, the buzzword was that teens needed to be "well rounded" to gain admission. Now, the realization is that no one person can be good at everything, so admission comes by being really good at something. Hugh MacLeod makes this point in "Ignore Everybody And 39 Other Keys to Creativity." He writes that the painter William Turner couldn't paint a person and that Bob Dylan is a bad guitar player with a terrible voice. But they turned their weaknesses into strengths, MacLeod writes, noting that Turner's inability to draw people led him to create unparalleled landscapes, and Bob Dylan's technical shortfalls goaded him to pen powerful, moving songs. His bottom line: Sing in your own voice. That's good advice, whether applying to college, building a career or managing others’ careers. A corollary idea comes from "Now, Discover Your Strengths" by Marcus Buckingham and Donald O. Clifton, who advise people to figure out what they are good at doing and pour their time and effort into getting better at those things. They also reject the time-honored idea that people need to get better at what we do poorly. Well rounded: RIP.