Work Matters

What will be on your tombstone?

Way back at the turn of the New Year, The New York Times Corner Office Q&A featured John Donovan, the chief technology officer at AT&T. Asked about the interview question he always poses, Donovan remarked that he asks the applicant to think of their professional colleagues, and the three words — literally three words — that they would put on the applicant's tombstone. His follow-up, he says, is always a surprise to the applicant: "Instead of three, what's the one word?" Why ask these questions? Here is Donovan: "I've tried to assemble teams with people who were grounded enough, and comfortable enough, to be able to have these kinds of conversations. When you find people who have that sort of grounding, then it can be about the problem you're working to solve together, and not about the person." Come to think of it, his go-to interview queries are two good questions to ask ourselves.

Thanks to all who are part of the conversation

I want to take a moment to express some heartfelt gratitude to my readers and offer some suggestions for more places they can find helpful information and analysis. Late last year, readers of the ABA Journal were good enough to vote “Work Matters” as the top labor and employment law blog. I am friends with the other bloggers who were up for the honor, each has taughte me a great deal. Let's start with Molly DiBianca, who writes the “Delaware Employment Law Blog.” Molly's specialty is tracking cases on social media and employment law. She consistently reports on the newest cases, with humor and insight. You can follow her on Twitter @MollyDiBi. “FMLA Insights” is from Chicagoan Jeff Nowak, who just doesn’t track FMLA cases but who imposes intellectual order on an often confusing area. Check him out @FMLAInsights. The future of blogging on employment law is in very good hands with this group of three: Daniel Schwartz (@danielschwartz), Jon Hyman(@jonhyman) and Eric Meyer (@Eric_B_Meyer). Daniel blogs at the “Connecticut Employment Law Blog,” which is peppered with thoughtful analysis on all topics labor and employment, especially the labor law side of the house. Jon is an employment lawyer in Cleveland and holds forth in his “Ohio Employer's Law Blog,” with daily updates on cases and trends. To say that their blogs are about Ohio or Connecticut law is like saying “Moby Dick” is a novel about a whale. Both blogs are so much more. Finally, Eric B. Meyer writes “The Employer Handbook.” The ABA Journal quoted an admiring reader that Eric's blog is "smart, sassy, current." There is a Zen koan that asks whether a tree makes any noise if it falls in a forest but there is no one there to hear it. I do not know the answer (I suspect the idea is that there is no answer). But I do know this: Readers are part of what makes a blog a real conversation. Blogs need an audience to truly serve their purpose. Thanks for reading.

Regarded-as disability and the ADA amendments

Given their expansive definition of disability, the amendments to the American with Disabilities Act are swelling the number of ADA lawsuits. But there are limits. The new definition was of no help to a creative but unsuccessful claim, as set out in a November 2011 opinion from the U.S. District Court for the Middle District of Florida. Fast-food style, the court laid out the facts in Wallner, et al. v. MHV Sonic Inc., et al: Some Sonic employees were subjected to several armed robberies at the restaurant. They complained in writing to management that they were afraid of yet another robbery. They allegedly were fired as a result. They sued under the ADA and various state law claims, claiming their employer regarded them as disabled. (Recall that terminating employees because the employer regards them ADA disabled is just as much a violation as firing them because they actually are ADA disabled.) No dice, ruled the court in granting the employer's motion for summary judgment. Why? Two reasons. First, there were no allegations that Sonic perceived the fear as linked to a mental or psychological disorder, which is required to assert a regarded-as claim. Rather, the allegations were tethered to a situation in which the employees were mired. The employees got the court's sympathy but no more. Second, even assuming their fear was a physical or mental impairment, the court noted that the amendments do not permit a regarded-as claim if the impairment is "transitory and minor." Here, the court reasoned that, while their fear was understandable, it was a transitory phenomenon, popping up only when they were working at the Sonic. The court tossed their ADA claim and sent their state law claims for negligent training and supervision back to state court (the suit had been removed to federal court). The ADA and its amendments involve complex and difficult legal issues. Like a tough law school exam, the amendments will challenge all employment lawyers.

Buddhist insight for preventing sexual harassment at work

I am interested in how Buddhism informs employment law, so I read with relish "Being Buddha At Work: 108 Ancient Truths on Change, Stress, Money, & Success" by Franz Metcalf and BJ Gallagher. They say the Buddha's teachings can help prevent sexual harassment. First, they note that people must look at their own behavior and ensure it is above reproach. Second, all employees in a company need to understand the letter and the spirit of the laws prohibiting harassment. I recently wrote an anti-harassment policy and included why the policy is important: Those subject to harassment are thwarted in their efforts to fully realize their potential at work. That hurts them, and it hurts the company. The authors echo a similar sentiment, saying the "laws are based on respect for all individuals and the right of people to feel safe where they work. . . . " Finally, they advise that people need to be "bold" in stopping harassment when we see it. That’s good advice. A solid plaintiff's lawyer deposing a manager should ask who is responsible for enforcing the company's anti-harassment policy. An answer not informed by the Buddha would be: "human resources." But a Buddha-based answer would be: "Each of us." As a defense lawyer, give me the second answer — and the attitude it reflects — over the first any day.

Two trial tactics tips for the courtroom

Here are two trial tactic tips from a pair of talks I attended that I found helpful. The first one: The lawyer pulls up a document on the screen in the courtroom. He tells the demo operator to pull up paragraph No. 12 of a 50 paragraph exhibit and highlight it. The witness testifies about that paragraph. I’ve done it a hundred times — and done it wrong a hundred times. The speaker remarked that the jury isn't listening to the testimony. Jurors are wondering: What’s in the other 49 paragraphs? Will we ever get a chance to look at them? Is that lawyer trying to hide something by only showing us one? Jurors are spending a lot of cognitive horsepower -- but not on what the lawyer wants them to spend it on. Solution: The lawyer should mention to the witness that jurors will have the entire document to look at, but right now he just wants to focus on paragraph No. 12. The second tip: Lawyers should use text messages to communicate with co-counsel at trial. How have I done it all these years? Whispering or passing notes, which can be distracting to the jury. This speaker observed that lawyers should tell the jury they are going to text each other and that they are doing so because it is more efficient and less distracting. Great ideas both. Sometimes wisdom never comes, so it should not be rejected merely because it comes late.