Work Matters

Take a lesson on persuasion from Keats

John Keats’ great poem “To Autumn” was published in 1820. He died less than a year later. He had a powerful message to send the world, and he didn’t have much time. Here’s what he wrote:

Where are the songs of Spring? Ay, Where are they?
Think not of them, thou hast thy music too, —

He could have shortened the first line and rushed headlong into the answer he wanted us to hear by deleting, “Ay, Where are they?”

That likely would have been satisfying — satisfying, but not as effective. Re-asking the question allows the reader or listener to pause, reflect and absorb the question.

Next time you seek to persuade, take a breath, like Keats, and let the recipient of the message catch up with you and the point you are about to make.

 

Handling consensual but inappropriate conduct between managers and employees

Do you read the Bible? I recommend it. Not only is it a great work of literature, but its wisdom helps us be better lawyers.

I was meeting with a new client last week. The scenario: A male manager and a female employee engaged in inappropriate, albeit consensual, conduct. One client option is terminating him but merely reprimanding her. But isn’t that sex discrimination?

Not in the eyes of the case law: It empowers an employer to hold managers to a higher standard than rank-and-file employees.

Is there support for that result in the Bible? Read Luke 12:48: “From everyone who has been given much, much will be demanded; and from the one who has been entrusted with much, much more will be asked.” The legal and the moral converge.

What can the Bible teach about deposition prep?

Here is something Jesus said, according to St. Luke: “And he said, Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.” (Luke, 11:46) Isn’t that the truth?

Here is a before/after picture of how I prepare a witness for a deposition:

• Before I understood the wisdom of this passage, I’d tell the witness: Here are the suit’s allegations. Here’s what the opposing counsel will ask you. Here are the appropriate responses, if they’re true.
• After: How do you feel about this case and your deposition? What do you want the judge and jury to understand? Do you feel that the whole case rests on you? (It almost never does.)

As lawyers, we take the legal process for granted. That’s not true for witnesses, for whom a deposition may be their first collision with the legal system. (Once, I had to give a deposition. It was hard, even though I already had deposed several hundred people at that point. But that’s another post.)

Do me a favor: The next time you get ready to prepare a witness (or get a client ready to attend a mediation or go to trial), go back to St. Luke and give him a read. You’ll be glad you did.

Some interviews call for reflection on your life story

Has anyone ever told you to take a hike when you are five minutes into a job interview? Jacqueline Novogratz has been known to do that to candidates. She’s the CEO of the Acumen Fund and was interviewed in the “Corner Office” in Sept. 30 issue of The New York Times.

By the time an applicant meets Novogratz, others have vetted the candidate for the necessary skill sets. She is looking for more. Because her description of what she looks for at that point is so much better than my poor power to summarize it, I quote:

“I ask people to tell me their story. How did you grow up? Who are the influences in your life? Tell me about a time when you really failed. And if you give me a really silly answer to that question, I’m going to know it and I’m going to ask you to leave. I have been known for the five-minute interview, which the team does not like.”

I could not agree with her more. Each person has just so much time and so much life force, and so many people waste it.

She goes on to describe what triggers the guillotine to the interview:

“If somebody says, ‘My biggest weakness is that I work too hard’ or ‘I'm a perfectionist.’ I want to know the essence of who you are, what makes you tick, why you are coming here. . . . When did you feel like you really let yourself down, and what did you learn from it? What are you most proud of, and what are you doing when you feel most beautiful? People get a little confused when I ask that question, and they'll ask, ‘What do you mean by beautiful?’ ”

Sounds like she's interviewing a bunch of lawyers, doesn’t it? She elaborates:

“What are you doing when you are shining, when you're in the zone, when you're on fire? What are you doing when you feel that way? I think you learn a lot about someone when they answer that question.”

The interview also illuminates the value employers are now placing on self-reflection. The examined life is, in fact, a life worth living.

Increasing employee engagement and rethinking sales

I have been reading about employee engagement — what motivates employees to go above and beyond their regular duties. A great booklet is “180 Ways To Build Employee Engagement: How to Maximize Your Team’s Commitment, Effort, and Loyalty,”by Brian Gareau and Al Lucia

In No. 165, the authors suggest asking employees, on an anonymous basis, to fill in the blanks on these sentences: Accepting employment with this organization was a _____decision because_____; I would describe the match between my personal values and the organization’s values as _____; and when I speak to my friends about this organization, I say it is ______.

The idea is to determine the depth of employee commitment and loyalty. 

Also, check out the July/August issue of the Harvard Business Review and Daniel Pink’s article, “A Radical Prescription For Sales.” He argues that the work/reward system of telling the employees to do X and get Y is fading fast.

Why? To quote Pink, today “the transactional aspects of sales are disappearing. When routine functions can be automated, and when customers and prospects often have as much data as the saleswoman herself, the skills that matter most are heuristic: Curating and interpreting information instead of merely dispensing it. Identifying new problems along with solving established ones. Selling insights rather than items.”

The impact on compensation will be fewer commissions for individual effort and more commissions based on achievement of corporate measures rather than individual ones, coupled with the bulk of compensation consisting of a high base salary. The world changes.

Use stories effectively to answer clients' questions

Never forget the power of a story to influence and persuade. Clients often ask about the return on investment for dollars spent in bringing or defending a suit. The truth is that they do not really need lawyers to tell them, “On the one hand: X. On the other hand: Y.” They need us for wisdom. With the right client, at the right time, I say this in response to the ROI question: “Voltaire said there were only two times he was ruined: The first was when he lost a lawsuit, and the second was when he won one.” I almost always get a knowing smile. That’s telling a client a story rather than just laying out the pros and cons. Want to know more? Read “The Story Factor: Inspiration, Influence, and Persuasion Through the Art of Storytelling” by Annette Simmons.

What doctors can teach lawyers

I think lawyers learn a lot from other professions, so I read with interest an article in The Wall Street Journal, “How to Stop Hospitals From Killing Us,” by Dr. Marty Makary. It’s adapted from his new book, “Unaccountable: What Hospitals Won’t Tell You and How Transparency Can Revolutionize Health Care.”

Makary writes about his decision to start dictating his notes from the patient interview but doing so at the end of the visit and with the patient listening. He writes that this revealed that he sometimes was wrong in what he believed the patient was telling him. He writes that there is a movement, started at Harvard, called “Open Notes,” where a patient actually can review a doctor’s notes online. He suggests taking this to the next level and allowing patients to add their comments.

Sometimes, but not often enough, I will pause when interviewing a client or witness to summarize my notes and ask, “Do I understand the facts so far?” Or, at the end of the interview, I ask, “Is there anything else you believe I should know,” or “Is there something else you want to tell me?” (Do not ask if the summary is fair; that leaves too much wiggle room for the witness.)

Another thing: I love my whiteboard. When the facts are complex, I use it to diagram what occurred because some people are more visual than others. When the facts are emotionally charged, using the whiteboard drains emotion from the interview. The witness focuses on a nonjudgmental, inanimate object — not on me.

Lawyers and doctors: Let’s talk more.

Jury charge quiz for Fair Labor Standards Act cases

It’s quiz time. Here’s the scenario: An employer claims the plaintiff’s job duties fit within an exemption to the Fair Labor Standards Act. It’s the charge conference. The defendant asks for the following instruction: “An employer seeking an exemption from the overtime requirements of the FLSA bears the burden of proving an exemption.” The plaintiff seeks this instruction: “An employer seeking an exemption from the overtime requirements of the FLSA bears the burden of proving that the particular employee fits plainly and unmistakably within the terms of the claimed exemption.” Quick, who’s right?

The trial court sided with the plaintiff, and the plaintiff won a verdict. But the 10th U.S Circuit Court of Appeals set aside the judgment and sent it back to the trial court. This is all laid out in the opinion in Lederman v. Frontier Fire Protection, et al (2012).

Why did the trial court make the wrong choice? According to the appeals court, the trial court relied on cases addressing legal — rather than factual — issues, such as in determining whether to grant summary judgment.

Here is the 10th Circuit: “When our prior cases employing this phrase (that is, ‘plainly and unmistakably’) are read as a whole, they do not establish a heightened evidentiary requirement on employers seeking to prove an FLSA exemption. Instead, the ordinary burden of proof — preponderance of the evidence — controls the jury’s evaluation of whether the facts establish an exemption to the FLSA.”

Take the case to your next charge conference. Good stuff.

Understanding the NLRB's stance on employee social media use and concerted action

Does the following employer policy violate the National Labor Relations Act?

“Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”

It does, according to a Sept. 7 decision of the National Labor Relations Board, Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371, 358 NLRB No. 106 (2012).

Why? Employees have the right under the National Labor Relations Act to make concerted complaints regarding an employer’s treatment of employees. The board reasoned that the policy was so broad that employees reasonably could conclude that the policy prohibited making such complaints. But board law is nuanced, almost like the subtleties of medieval scholars asking how many angels can dance on the head of a pin (I say this with love, as a former NLRB field attorney).

The opinion states that the policy would be legal if it was included in a laundry list of prohibitions, such as “sabotage” or sexual or racial harassment. Why? Because the context of the rule in the laundry-list example would not lead a reasonable employee to conclude that it prohibited protected concerted discussion.

One other point: It is a violation of the NLRA to discipline or terminate an employee for violating an unlawful policy. Stay tuned.

Use engagement letter to prevent problems

Here is a universal truth: What starts well ends well. So, let’s talk engagement letters.

First, a warning. It feels good when a potential client says he wants to hire you. All lawyers like to hear that, just like everyone likes to hear “yes” to the question, “Would you like to have dinner with me?”

But the best time to set boundaries is at the start of a relationship, not piecemeal while muddling through one. That’s why lawyers need an exit strategy.

I once agreed to represent a client that had an Equal Employment Opportunity Commission charge filed against it. But I wondered about the client’s solvency. So, the engagement letter stated that my representation was limited to representing the client before the EEOC and any subsequent litigation would require a new and different engagement. My instinct was right, and dropping the client was easier because the letter addressed the issue up front.

Dana Adam Shapiro brilliantly explores this idea in relation to dating in “You Can Be Right (or You Can Be Married): Looking for Love in the Age of Divorce.” His book recounts interviews he conducted with divorced people. They all wished, in hindsight, that they had been more candid about themselves before they wed. That’s true in love, and it’s true in the law.