Work Matters

Pondering damages under the federal Computer Fraud and Abuse Act

Companies claiming that an employee accessed their computer system, took confidential information, and later used it on a competitor’s behalf often want to sue under the federal Computer Fraud and Abuse Act. But even if CFAA covers this scenario — and there is a lot of debate over whether it does — there is another sticking point: What are the damages for an alleged violation?

A decision by the U.S. District Court for the Southern District of New York, Schatzki et al v. Weiser Capital Management (2012), illuminates this issue. The court said that the only damages recoverable are economic damages (damages that flow from an injury to the computer system itself) and not consequential damages from the alleged theft of the information, such as lost profits.

Here is the drill: Did the unlawful access damage the data or the system itself? CFAA covered. Did the unlawful access require the company to identify evidence of the breach and determine the need for remedial measures to the network? CFAA covered. Did the unlawful access require the company to hire consultants and lawyers to get the information back from the employee who allegedly took it? Not CFAA covered.

The opinion ran down these scenarios, with the last being the allegations before it. So, motion to amend complaint denied, and CFAA claim dismissed.

When do collective bargaining agreements that include grievance procedures foreclose a judicial forum?

The courts love sending cases to arbitration. But there are limits, as the 5th U.S. Circuit Court of Appeals reminded lawyers Sept. 13 in Ibarra v. United Parcel Service. The court sketched out the facts: A UPS employee was terminated. A collective bargaining agreement covered the terms of her job. The agreement included a multi-level grievance preceding, including — at the last stage — an evidentiary hearing. Her unjust-termination claim was denied at each level. She later sued in federal court, alleging a violation of Title VII. The trial court tossed her suit, saying that the grievance procedure was her sole remedy. The 5th Circuit disagreed, writing that she is deprived of a judicial forum only if the collective bargaining agreement explicitly waives an employee’s right to a judicial forum for statutory claims. The UPS agreement did not. The mere presence, as in the UPS agreement, of an anti-discrimination policy and a grievance policy could not, the court noted, be construed as an explicit waiver. So, she gets her day in federal court.

Choose to act despite uncertainty

Here is a central tenet of Buddhism: The world is always in flux, changing from moment to moment. Life is random.

Both of these things are true. But can people make the forces we do not control work for us in business and life? Yes, according to an insightful and important book by Frans Johansson, 'The Click Moment: Seizing Opportunity in an Unpredictable World."

Here is the deal: If we do nothing, nothing good happens. For something to happen, one must act even if unsure where it will lead. I know, I know: This is hard to accept because lawyers have our goals, our marketing plans and our well thought out ambitions. But, as a famous boxer insightfully remarked, everyone has a plan until getting hit.

Johansson writes; “Once you start executing, whether or not the bet actually works in your favor, you are exposed to complex forces that can pave the way for future success. Even if you do not have a crystal clear goal in mind, it is still better to do something — and to tell people about it. The complex forces of the world will now have a concept to work with, and you will have exposed yourself to the possibility of positive unanticipated consequences, cascades, and self-reinforcing loops.”

To succeed more, try more. See rejection not as a "no" but as a "not right now." Don't think about doing an act, just act.

I did not always understand these ideas. But sometimes wisdom never comes, so we should not reject it merely because it comes late. Give the book a read. Five stars.

The role of storytelling in job interviews and dating

What do job interviews and dating have in common? More than you might suspect.

First, let’s talk about interviews. Jarrod Moses the subject of the Q&A in the Sept. 16 installment of Corner Office in The New York Times. He’s founder and CEO of United Entertainment Group. Asked for his key interview question, he replied: “What's the story you want to tell 10 years from now of how you started and what you wound up doing?”

That’s a smart thing to ask. The story to which a person aspires shapes his or her conduct. In short, you grow into your aspirations. That's a lesson from Aristotle.

Now, let’s look at dating. Tracy McMillan knows storytelling. She writes for the hit show “Mad Men.” Her new book is "Why You're Not Married . . . Yet: The Straight Talk You Need to Get the Relationship You Deserve.” (I read a lot of different stuff.) She writes that storytelling is a big deal. Here’s an insight from her book:

“We tell ourselves, and other people, stories about who we are, what happened to us, and what the world is like. We bring our story with us on every date and into every relationship we have. [And I would add: every job interview.] What few people realize is that the stories you tell about yourself essentially become true — because the story shapes your thinking, the thinking shapes your perception, the perception shapes your choices, the choices shape your actions, and your actions are ultimately your destiny.”

Jarrod, meet Tracy. Her advice on dating applies to interviews and fits hand in glove with Moses’ advice. So, what's your story?

What to do when your request for a referral is rejected

Rejection and I are on intimate terms, and I treat it as my friend, not my foe. I believe that how we handle rejection tells others a lot about our character. So, I read with interest the section on "Referrals and Elegant Introductions" in Terri L. Sjodin's new book "Small Message, Big Impact: The Elevator Speech Effect."

She writes that some referral requests receive a "no" in reply. That can sting. But here’s her suggested response: “No worries. Maybe this isn't a good time. If you feel it could be appropriate in the future, I would greatly appreciate it." She advises: “Be gracious and leave like a lady or a gentleman." Agreed.

How to go about making the referral? I like to send an email and caption it "Favor?" and, in the body, repeat the theme: "May I ask for a favor?"

If the one making the request has created enough political capital, most people will say yes. If I think the referral is important, I ask in person.

Remember: Time is the most valuable thing people possess. When asking someone for some of his, make sure to have a good reason for doing so — and a good reason includes helping a younger lawyer or law student. But do not go to the well too often, and make sure always to repay the favor granted.

Claim or no claim? The reasonable-woman standard and the nuances of harassment law

Let's play claim or no claim. An employee (later the plaintiff) alleges that she sees her supervisor make close personal contact with another female subordinate, including the supervisor rubbing this co-worker's back and stroking her neck. How often? Several hundred times over a five-month period. The future plaintiff is offended. She alleges other employees chime in, saying they saw the same conduct 10 times to 15 times a day, and they were likewise offended. The employee (aka future plaintiff) also claims to have heard intimate conversations between the two of them. She complains to management and is later fired. She sues, claiming two violations of Title VII: a hostile environment based on sex and retaliation. Claim or no claim?

No claim, according to the U.S. District Court for the Northern District of Texas in Dallas, which sketched out these allegations in its July 23 decision in Kummerle v. EMJ Corp. The court granted the defendant's motion to dismiss on the pleadings, noting that the plaintiff failed to alleged that the purported conduct was more demeaning and offensive to females than to males. After all, the basis of a hostile environment claim based on sex is that the sexes were exposed to different conditions of employment, not merely offensive conditions of employment.

In an apparent effort to cha-cha around this deficiency, the court noted that the plaintiff alleged in the suit that a “reasonable woman” would have been offended by the conduct she observed because of the long history of “subjugation” of women in the workplace.

In a gracious turn of phrase, the court characterized Kummerle's reliance on history as a “nuanced” understanding of the law but one that did not comport with the law (which looks only to a reasonable-person standard, not a reasonable-woman standard) or comport with day-to-day practicalities. “If the court were to uphold Kummerle's theory in this case, it would of necessity impose on employers . . . an obligation to enforce a general civility code for the workplace, which Title VII does not require,” wrote the court.

What about the retaliation claim? Because what Kummerle opposed as a violation of Title VII wasn't actually a violation, she was precluded from asserting a retaliation claim. It’s a good result.

So, what should plaintiffs lawyers do in similar situations? I’d recommend not focusing on the hostile environment claim — even go ahead and concede that there is no such claim. Instead, focus in on the reasonableness of the plaintiff's beliefs. Argue that she is not a lawyer and does not understand the nuances of harassment law (which even confuse lawyers) and that the issue is not whether the court gives her an A+ in employment law but whether she scrapes by with a C. Just saying.

Learn about others, in interviews and in life, by asking questions

How do we find out about another person? One way is to ask questions. A couple of lunches last week — one with a client and another with a lawyer — drove that point home.

After my client and I had lunch, she needed to conduct some interviews. One of her favorite questions to ask: Tell me something you have done recently to improve yourself. She leaves her query open-ended, so the applicant can talk about work or personal life. She believes the question pries open an otherwise hidden aspect of the applicant.

At the other lunch (if beer and peanuts constitute a lunch), I kibitzed with a lawyer who is applying to business school. The essay portion of one application posed two simple questions designed to produce two very revealing answers. Question No. 1: Tell us something you did well. Question No. 2: Tell us something you wish you had done better. Take a few minutes to think how you would answer. I did. Self-reflection, like an apple a day, is a good practice.

Bottom line up front (BLUF): Speak in a language people will understand

Last week, I was reviewing a letter a colleague had written in a noncompete case. It was a good letter. But it read like a mystery novel with the punch line at the end.

So, we decided to write the letter following something practiced in the Army: the bottom line up front (BLUF) format. The letter began with this sentence, in bold: “XYZ Co. asks that you read this letter carefully. The letter requests that you take steps to honor your noncompete agreement. If you fail to do so, XYZ will strongly consider filing a lawsuit against you.”

My mother taught me to speak to people in a language they understand. It is effective for the speaker and fair for the listener. So, thanks to the U.S. Army and my mom. Now, that's a winning combination.

Effective strategies for finding work after layoffs

Having been without a job, I read with interest “Laid Off More Than Once, and Seeking a Career,” an Aug. 11 article in The New York Times. The author quotes Jim Camp, author of “Start With No: The Negotiating Tools That the Pros Don't Want You to Know.” Camp advises job hunters to deal with multiple layoffs upfront and say to a prospective employer, “Before we even begin, I've been laid off four times in the last five years through no fault of my own. If this is a problem, let me know and we’ll talk about it.”

On the résumé front, the article relies on Cheryl Heisler, president and founder of Lawternatives, which helps lawyers transition to different fields. Heisler suggests that those with multiple layoffs group similar jobs they’ve held under headings rather than listing them chronologically. That lessens the impression of job hopping.

The Times article returns to Camp who adds, “You need to think, [w]hat can I do differently on the positive side? Otherwise it's easy to stay locked in a world of defeat.”

I would add this: There is always one more thing you can do. One more phone call, one more email, one more contact to reach out to. Like a lot of things in life, it is the incremental effort that produces the biggest result.

Texas Supreme Court refuses to engraft Ledbetter Act onto the Texas Commission on Human Rights Act

Back on April 27, 2010, I wrote about a decision by Houston’s 1st Court of Appeals. Cue the time machine:

"Remember Lilly Ledbetter? She was a supervisor at a plant who alleged she did the same work as her male counterparts but was paid less. The thing is, she didn't know about the pay disparity at the time. When she learned of the shortfall, she filed a charge of discrimination at the EEOC. The U.S. Supreme Court found on May 29, 2007, in Ledbetter v. Goodyear Tire & Rubber Co. Inc. that she had not filed her charge within the statute of limitations (300 days) and rejected the idea that each paycheck she received triggered the clock anew. Congress did not like this result and enacted the Lilly Ledbetter Fair Pay Act of 2009. Now an employee's time to file an EEOC charge begins anew with each paycheck that is a manifestation of the allegedly discriminatory act of setting unequal pay. Here’s what’s interesting. On April 1, Houston's 1st Court of Appeals revived a discrimination claim and held in Prairie View A&M University v. Chatha that a federal law (the Ledbetter Act) applies to cases arising under the Texas Labor Code. But, argued the employer, the Texas Legislature considered and rejected amending the code to follow Ledbetter. No mind, said the 1st Court, "The State's public policy in the Texas Act [the Labor Code] is to execute the policy in Title VII." Sorry, I’m not buying that. Whenever a court starts relying on "public policy," you know it reached a results-oriented decision, not a reasoned one. I hope this goes to the Texas Supreme Court."

Well, the Texas Supreme Court sorted it all out. On Aug. 31 in Prairie View A&M University v. Chatha, the justices decided in no uncertain terms that the Texas Commission on Human Rights Act does not automatically incorporate federal law, and if the Texas Legislature wanted to pass its own version of the Ledbetter Act, then it was free to do so.

Until then, the court held that the 180-day clock started to run when the plaintiff learned of the alleged discriminatory pay decision. Because she did not file her charge of discrimination within 180 days after doing so, her claim was tossed.

What about the subsequent paychecks she received? Did not those trigger the 180 days yet again? In a word, no. Here is the court: “Subsequent paychecks containing an alleged discriminatory pay amount are merely consequences of past discrimination and do not constitute an unlawful employment practice under the TCHRA.”

And the court added that complying with the 180-day deadline is a mandatory condition precedent to suit against a governmental agency under Texas Government Code §311.034. The vote at the high court was 7-2. Case closed.