Work Matters

Individual employees can privately settle FLSA claim without court/DOL approval, rules 5th Circuit

Can an individual employee privately settle a claim under the Fair Labor Standards Act, or does a settlement always need approval from a court or the Department of Labor? The conventional wisdom pre-July 24 said the latter. But conventional wisdom got the heave-ho on July 24 in Martin, et al. v. Spring Break ‘83 Productions LLC, et al. The 5th U.S. Circuit Court of Appeals held that a private settlement agreement is enforceable if an employer and an employee have a bona fide dispute as to the amount of hours the employee worked or as to the compensation due to the employee. It is good to see the courts treating employees like adults.

Editor's note: Due to an error by managing editor Anne K. McMillan, a previous headline for this post incorrectly identified the relevant government department.

Practice law with a heart

The late Vincent W. Foster Jr. was one of my mentors, even though I never met him. He gave a wonderful commencement speech, "Roads We Should Travel," in May 1993 at his alma mater, the University of Arkansas School of Law. It’s included in a collection of talks from the Minnesota State Bar Association. Reading it replenishes me.

Here is one gem among many: “Practice law with a heart. The clients you represent will remember you long after you have forgotten their names. While routine for you, what you are doing for them may be the most important thing in their lives.”

He also talks about family, being honest, character and much more, in concrete and useful ways.

Do yourself a favor and give it a read.

Vacations, long and short: Do they really restore and refresh?

The time-honored American tradition of the coffee break is under attack. The May issue of the Harvard Business Review says so in an interesting piece, "Coffee Breaks Don't Boost Productivity After All," highlighting the research of Charlotte Fritz. Here are some of her findings that I found interesting about breaks from work, long and short.

Vacations refresh, but only up to a limited point. After about two weeks back at work, her research shows, the sense of well-being triggered by the vacation falls back to the pre-vacation baseline.

The solution? Take three short vacations, not one long one. Why? Work stacks up after a long vacation and drains you upon returning. Shorter vacations translate into less work piling up and thus less drain on your batteries upon return.

Here is another solution: Take vacations that impart a sense of mastery, such as climbing a mountain or learning a new hobby. Doing so creates positive feelings. A friend of mine went to Nicaragua and took surfing lessons. While she reported only a solid C+ grade on her efforts, she came back more refreshed than if she just lounged on the beach.

What about mini-vacations, micro-breaks during the day to get coffee, make a personal call, check Facebook? Fritz says they're not helpful. These activities do not trigger increased energy during the day.

What is helpful? Performing ancillary, work-related activities, such as taking time to compliment a colleague on a good job or jotting down a to-do list. My theory? We did not survive as a species by being idle. Our genes are wired for action, not leisure. This is not to say we should not shut down from time to time, as Billy Joel reminds us in one of my favorite songs, "Vienna." Good advice from both Billy and Charlotte. Take a listen.

Client as BFF? Lawyers should emulate Horatio

I read somewhere that a lawyer's clients should be his friends: Vacation together, know one another's family members, help each other’s careers. I have my doubts.

The best lawyers are friends with clients — but in a transcendent way. Look at Hamlet, a guy with a lot of troubles, and Horatio, his counselor. A passage in Act 3, Scene 2 shows Hamlet explaining to Horatio why he is Hamlet’s friend and counselor.

• Horatio gives Hamlet the straight dope, not what Hamlet wants to hear: "No, let the candied tongue lick absurd pomp."
• Horatio learns from all his experiences, good and bad: “for thou hast been/As one, in suffering all, that suffers nothing” and gives "equal thanks" to all experiences because it makes Horatio wiser.
• Horatio feels strong emotion for Hamlet and will defend him but will never let that passion override his judgment: “and blest are those/Whose blood and judgment are so well commingled,/That they are not a pipe for fortune's finger.”

Hamlet then tells Horatio why he values his friendship, “Give me that man/That is not passion's slave, and I will wear him/In my heart's core, ay, in my heart of heart.” Translation: friendship based on values, not on frequent flier miles, pricey holiday gifts or promises to be BFFs.

The law and reality of English as the language of business

I love reading and writing about Shakespeare (check out my columns on "Macbeth," "Measure for Measure," and "Othello"). So I read with interest "Global Business Speaks English” by Harvard Business School assistant professor Tsedal Neeley in the May 2012 issue of the Harvard Business Review. For all the talk of the value of diversity in the workplace, the article makes clear that diversity of language means zero in international business.

The numbers don't lie: English is spoken at a useful level by 1.75 billion people worldwide. That’s one in every four people. The article drives home this point: English is the fastest-spreading language in human history.

Neeley queries whether Mandarin will be next and answers her own question: not by a long shot. English has too much of a head start, and Mandarin is just too difficult to learn.

And English, in my take, is popular because it is simple (subject, verb, object) and democratic (no gendered nouns). Neeley adds another layer: To be effective, a speaker needs to know only 3,000 to 5,000 words.

All of this means, according to the article, that more and more companies are designating English as the company's official language and mandating that employees learn it or face demotion or dismissal.

The question for lawyers: How does this stack up against the regulations of the EEOC? Pretty well, actually. EEOC rules, set out at 29 CFR 1606.7, state that English-only rules at the workplace are legal, provided good reasons support them. These can include the need to perform cooperative work assignments or the need to communicate with co-workers who speak only English.

The future is here, and, for many of us, it has a familiar ring to it.

Think Shakespeare and strategy when starting a plaintiff's deposition

What's the best way to start a plaintiff's deposition? If she has a new job, start there. Pose questions like these: What is the name of your new supervisor? Do you like your job? Why? Do you feel you are appreciated? Do you think you have a future there?

Most plaintiffs think their testimony will get back to their new employer. Thus, they feel compelled to describe a bright present and an even brighter future. I love it when they do; it cuts down on damages.

Plaintiffs lawyers should advise their clients to follow advice from "King John," a little known play by Shakespeare:"to gild refined gold/to paint the lily/ . . . or add another hue/unto the rainbow . . ./ is wasteful and ridiculous excess."

Harness the power of listening to clients

I finished an illuminating book, "Power Listening: Mastering the Most Critical Business Skill of All" from Bernard T. Ferrari. I generally stay away from books with "power" in the title but was glad I didn't. Ferrari packs a lot of advice into 181 pages, and his section on deciding when to interrupt a client especially struck me.

As a new lawyer, I often tried to rush an answer to a client, desperate perhaps to demonstrate my usefulness. This took several forms, including trying to superimpose a previous client's experience with the current client's dilemma. I was wrong to do so.

Ferrari offers some general advice, namely there are still people who think and speak in paragraphs in a text-obsessed culture. His advice: Make sure the client is really finished with her thought. And, if you think that the client is holding back for some reason, use the power of a simple question: "Can you tell me more about that?" He tells us that patience often has a big payoff: "You never know when the next thing they say will be the key to unlocking a problem."

In deciding whether to interrupt, he asks himself some questions:

1. Do I need any clarifications?
2. Do I want to hear more about this issue, or one that came before?
3. Do I need to parse an issue to focus on a certain aspect of the issue we are discussing?
4. Is there a counterargument that would be useful to raise now, not later?
5. Do I want to take the conversation in another direction?

If the answers are "no," let the client keep talking.

And, he writes that the 80-20 rule works in talking with a client: You talk (usually with questions) 20 percent of the time, and the client talks 80 percent of the time.

He compares our role to the rudder of a ship, steering but never directing. How a client says something, the order in which he says it and the words he uses all matter, and they matter a lot.

Two personal tips. First, clients will often ask lawyers questions in an interview. After answering, ask "Did I answer your question?" But be prepared for an ego bruise if the client says, "No." Second, at the end, ask if she has something on her mind she would like to let you know about, or tell ask her, "Is there a question you think I should have asked that I did not?"

It's a privilege to work with clients to understand their issues and develop a game plan to deal with them (one they often know but lawyers help bring to the surface). So, keep a light hand on the rudder and listen away.

The art of lawyering is the art of what not to do

The recent European Soccer Championship between Italy and Spain brought to mind a study mentioned in a book I am reading, "Wait: The Art and Science of Delay." Author Frank Partnoy mentions that studies of penalty kicks at the end of professional soccer matches demonstrate this remarkable fact: The goalkeeper's optimal strategy is to remain at the center of the goal, not jump to the left or to the right.

Partnoy’s bigger point is that the right move often is no move at all. But that is hard to do because we often believe we know exactly what to do, and convince ourselves that we always are better off acting, rather than waiting. But that's wrong – just take a look at medicine. He quotes an adage from our fellow profession where doctors often tell one another, "Don't just do something. Stand there." Same in the law.

I was talking to a colleague the other day, and she said we needed to respond immediately to an email from opposing counsel. No we don't, I counseled; it will only condition us to give (and for him to expect) an immediate response. The art of lawyering is the art of what not to do.

Soccer reminds me of the law: long periods of tireless work and boredom, interrupted by moments of intense excitement and unmitigated joy.

Vacation advice for those about to untether themselves from the office

Planning a summer vacation? The July 1 New York Times offers advice for those about to untether themselves from the office. Here are some of the suggestions in Matt Richtel's piece, "Call Waiting: 'It's Me, Vacation' ":

Manage expectations. Expectations are nice because pleasant ones release dopamine in our brains, which triggers feelings of well-being. But when expectations are not met (the water in reality looks a lot less blue than in the brochure), dopamine levels fall off and you get drug withdrawal.

Speaking of that little devil dopamine, we get some when we "click or swipe" our tablets or smartphones and will experience the same withdrawal pains if we try to go cold turkey. Richtel's advice: Change your relationship to your device by leaving it in one place and refusing to tote it around all day.

And he advises to "stop flirting with work." You cannot go on a vacation and still try to fiddle with work. If you do the result is a bad vacation and a worse work product. Stop it: Believe in the value of incubation and the value of a wandering mind.

There are other tips in the article, a version of which can be found here, so take a read and have a great July 4th.

Subset of age discrimination cases is DOA under Texas law

Exalting expediency over individualized decision-making, the Texas Supreme Court has dealt a death blow to a subset of age discrimination cases in which a terminated employee is replaced by someone older.

The June 29 opinion sketches out the background in the case: Gloria Garcia, a 27-year employee of the Mission Consolidated Independent School District, was fired when she was 48 years old. Her replacement was 51. The district essentially argued "where's the discrimination?" and asked the trial court and the intermediate appeals court to toss the age claim. Those courts said no. Why? Because they formulated a prima facie case as one where the plaintiff alleged she was replaced by someone younger or where she could "otherwise show that she was discharged because of age."

The high court read out the "otherwise show” language and resorted to a purely mechanical approach, holding that the only question was whether the replacement was older than the plaintiff. If so, game over, plaintiff loses.

While it is certainly less likely that discrimination exists where an older worker replaces a younger one, it is not impossible. Perhaps the older worker was hired to head off a discrimination suit, or maybe the plaintiff did not fit the employer's view of how older workers should act and decided to replace the plaintiff with one who did. Unlikely, yes. Impossible, no.

Of course, a plaintiff must prove there is other evidence to establish intentional age discrimination. But under the Supreme Court’s holding, Garcia cannot do so because her suit will be tossed at the outset for failing to allege a prima facie case.

Will the holding in Mission Consolidated Independent School District v. Garcia apply to African-Americans replacing African-Americans? Asian-Americans replacing Asian-Americans? I know I will make that argument.

In the meantime, this subset of age discrimination cases is DOA under Texas law. Let the summary judgments roll.