Work Matters

Discern intent before following a mentor’s advice

Here is the one piece of advice I would want a mentee to remember always: Question authority. I know that sounds odd. After all, collective wisdom says that mentors teach and mentees learn. That's not quite right. As a dying Buddha remarked to his disciples, "My finger may point you to the moon, but do not confuse my finger with the moon."

How can a mentee discern when to question authority? Ask if the guidance springs from org-chart authority or moral authority. Determine the mentor’s intention. Is it to obtain compliance? That’s org-chart authority. Is it to develop the mentee as a lawyer, so he or she gets better — maybe even better than the teacher? That counsel comes from moral authority.

Had I listened to org-chart authority, I would not represent one of my best clients nor have edited an employment law newsletter for the last 23 years. Lawyers often elect to follow org-chart authority because we are conditioned to seek approval, to obtain validation from others, to prize acceptance as part of the group. Yes, these are all nice feelings, but as Shakespeare cautioned, "All that glistens is not gold." So, go ahead, question authority. You'll be glad you did.

Harness the power of imagery to influence actions

Mediators may want to display the Chinese yin-yang symbol in their offices. At least that's the lesson I drew from an article in the March 2013 issue of the Harvard Business Review, "When In Chinatown, You Really Do Think More Chinese." Adam Alter discusses his research, which indicates that Eastern cultures see the world as progressing back and forth between opposite states, while Western cultures see the world as progressing forward in one direction.

So, when American and Chinese people who were participating in research received an imaginary $1,000 to invest, the Americans invested in previously appreciating stocks, while the Chinese invested in underperforming stocks in anticipation of a correction.

The article mentions that people process symbols much more quickly than we process words, and exposure to a symbol can prime us to take certain actions. (Those subliminally primed with an Apple logo perform tasks in a more creative manner than those primed with IBM's logo, according to the HBR piece.)

So, a mediator can prime litigants to understand that the world is fluid, not rigid. Imagery indicating this understanding may prime litigants to find a settlement to be reasonable, believe it or not.

Are liquidated damages discretionary in a retaliation case under the FLSA?

On Feb. 13, the 11th U.S. Circuit Court of Appeals, in Moore et al v. Appliance Direct Inc., and Sei Pak asked this question: "Does the FLSA (Fair Labor Standards Act) mandate the imposition of liquidated damages after a finding of liability for retaliation, unless excused by proof of reasonable good faith of the employer, the same as it does after a finding of liability for unpaid minimum wages and overtime, or are liquidated damages discretionary in a retaliation case?" And the answer is: it is discretionary, in accordance with the 6th and 8th U.S. Circuit Courts of Appeals.

Here, the trial court held that it would not effectuate the purposes of the FLSA (the standard a trial court must look to in deciding whether to impose liquidated damages) which operates to double the plaintiff’s award of back pay. So, the jury's award of $30,000 for each of the three plaintiffs was left as is, no doubling. So, a cool $90,000 was saved.

How to handle profanity by a party or witness

I often go to lunch with junior colleagues. We go to share knowledge, but there’s no specific lesson in mind. It’s an organic process. Last week, we stumbled on how to handle salty language.

I was deposing a plaintiff. The manager who fired her said that she called him an "a------" when he terminated her. So, I asked her if she said it. She got mad and exclaimed that this word was not in her vocabulary. So, I asked the next most logical question: "Did you say anything like that?"

She rolled her eyes. Then she gave me an even look and said "Well, yes, I called him a m-----------, because anyone can be an a------, but it takes a special person like him to be a m-----------.”

We went to trial (this was before every deposition was videotaped). I asked her on cross-examination if she used salty language. She said no. So, I impeached her — not by saying the word myself, but by having her read the Q and A.

Lesson: If I had used the word, I would have been the potty mouth, not her.

Get conscious about culture

The Feb. 10 issue of The New York Times has an interesting Corner Office interview. It’s with Robert LoCascio, the CEO and founder of LivePerson, which provides online customer assistance to businesses.

As his company grew, LoCascio decided that it needed a culture. So, he gathered all his employees, and they whittled down 40 core values to the two things for which they stood: Be an owner, and help others.

The Q&A quotes LoCasio: “Be an owner is about us being owners as individuals, driving the business, and helping others is about being reflective and understanding that we're in a community here. We can't be selfish.”

Not everyone could make the shift. A chunk of employees and managers left. But those who remained embrace these values and live by them, notes the article.

When you think about it, a company’s or firm’s culture dictates how people act when they don’t think about how to behave. Culture takes over when people are on autopilot, because the values are ingrained. What is your firm’s culture? Can you and everyone who works there name the firm’s core values?

 

Accuser or accused? Steps to take in an unpleasant conversation

I just finished reading “The Young Professional’s Survival Guide: From Cab Fares to Moral Snares” by C.K. Gunsalus. It is a first-rate book on situational ethics. She writes about how to deal with a situation involving possible wrongdoing — a matter of personal interest to me, but more on that in a minute.

In a paper a student submitted, he claimed that he attended a required event. But attendance records showed otherwise. How to handle that? Gunsalus advises developing what she calls a script, laying out her planned remarks and creating fairness to each party.

In that situation, she drafted an opening along these lines: “I am confused by an apparent conflict between your paper and the attendance records. My duty is to apply the same requirements to all students.”

She then created an opening for the student: “I hope you will be willing to share your reactions with me. Can you help me understand the conflict?” She says this line demonstrates genuine interest in the other person's perspective, does not prejudge the situation and is an open-ended question inviting a response. If there is an innocent explanation, the student now has a chance to provide it.

There is a bonus as well, as Gunsalus writes: The approach “also provides a face-saving out if your initial concerns or conclusions were wrong.” That’s something particularly helpful for lawyers in a supervisory role and those whose clients who may not disclose everything forthrightly.

Back to my personal interest in this topic: I was accused of cheating on a college chemistry exam. In the course, the professor allowed students to resubmit previously graded exams with an explanation on why they believed they deserved higher grades.

The professor called me into his office. Let's just say there was no script. The conversation was short and not so sweet: The exam had been placed under an electronic microscope. It was clear that I had added to my answer. I could confess and take an F on the exam or fight a losing battle and get kicked out of the course (it was a required course, which meant I would be kicked out of school).

I’ll skip the details, but the professor took another look at the exam. The incriminating evidence that he thought was there was not.

I never did learn much about chemistry, but I learned a lot about employment law and life (as I realized much later).

Anyone accusing an employee of misconduct, especially where the allegations pertain to the worker’s honesty, should measure twice and cut once. It is unwise to attempt to sweat a confession out of someone with threats or to display a false concern.

Anyone so accused should remain calm, resisting the temptation to swear and raise his voice. But that is the time to question authority. The straightforward approach is best: "That did not happen. Please re-evaluate the evidence." Also, get an advocate (that's what I did.)

I will leave the last word to Professor Gunsalus, who ends her wonderful book with this: “This is not a test — this is your life. Live it well.”

An interrogation technique from the cloak-and-dagger world

I was having a drink at a bar near my loft and struck up a conversation with a guy who said he was retired after 30 years with the CIA. He said his specialty was interrogation and he now works in the security business.

His message: No matter how direct a questioner is, the person being interrogated usually is off in La-La Land. He hears the noise, not the signal, because he thinks he is smarter than the questioner and simply does not listen to the questions asked.

His solution was to have the person being interrogated write down what the questioning had covered. He would then go over it with the person. Usually, he said, this needed to happen two to three times.

How did this work at the CIA posts where he was stationed? Message: Please don't ask. He didn't need to ask me to write him a summary. Signal received.

Enhance persuasive power through the use of contrast

Want to persuade? Harness the power of contrast, of the before/after variety. Don’t think before/after comparisons work? The garages of America overflow with exercise machines advertised on cable TV at 2 a.m. in commercials showing how people looked before and then, voilà, after whipping out their credit card and calling the 800 number.

I see this in trial work. The plaintiff's lawyer, in opening in a retaliation case, loves to intone: “My client was given high marks as an employee. She then complained about working conditions, and it all changed.”

Want an example of effective use of contrast? Watch the movie "The Rainmaker," in which a large insurance company denies the claim of a very ill person who later dies. At closing argument, the patient’s lawyer holds up two pieces of paper: one says number of claims filed, the other number of claims denied. The first number is big, the second only about 20 percent smaller. No ELMO, no fancy graphics. Just the power of contrast.

Shakespeare wrote about the power of contrast in Henry IV. Prince Henry (Hal) will someday be king, yet he dallies in his youth with thieves and drunkards. Why? Because, when he ascends the throne, the contrast between his youthful frolics will make him look all the wiser:

“Yet herein will I imitate the sun,/Who doth permit the base contagious clouds/To smother up his beauty from the world,/That, when he pleased again to be himself,/Being wanted, he may be more wondered at/By breaking through the foul and ugly mist/. . . And like bright metal on a sullen ground/My reformation, glitt'ring o'er my fault,/Shall show more goodly and attract more eyes/Than that which has no foil to set it off./I'll so offend to make offense a skill,/Redeeming time when men think least I will."

Genius.

Managing client relationships requires communication even when there is nothing to report

New lawyers often ask about the magic bullet of client relationships. They want the one secret of exceeding expectations, the secret sauce of lawyering. There isn’t one; in the law, as in life, it is the small things that save us.

Recent advice I gave to a new lawyer: Don’t just tell the client about what is going on a case, but what is not going on, as in, “Litigation is like war. Periods of intense activity are interrupted by long periods of inactivity. This is a period of inactivity, and I just wanted to let you know.”

If you do not do so, the client thinks the worse, “Why have I not heard from my lawyer? I wonder if everything is OK?”

Pre-empt this fretting. Drop the client a line. And, by the way, doing so is a client courtesy, not an opportunity to squeeze a billable fraction of an hour. Do well by doing right.

Can a deaf lifeguard applicant’s ADA claim survive summary judgment?

Let's wade out into deep water today: Does an applicant for a lifeguard position state a claim under the Americans With Disabilities Act if he is rejected because he is deaf? According to the 6th U.S. Circuit Court of Appeals, he does.

In Keith v. County of Oakland, the appellate court reversed the trial court’s grant of summary judgment. Here's the scoop the Jan. 10 decision sets out: The county, knowing that applicant Nicholas Keith had been deaf since birth, offered him the position, conditioned on passing a physical. The doctor, allegedly afraid of being sued, stated that he would only approve the hiring if the applicant is “constantly accommodated.” The county gets worried, consults with a company specializing in aquatic safety and discusses possible accommodations to the deafness. The expert opines that, “without 100% certainty that [the proposed accommodations] would always be effective, I don't think that you could safely have [Keith] on the stand by himself.”

The offer is yanked, the suit follows and the trial court grants summary judgment. But the 6th Circuit says: Not so fast.

Where’s the issue of material fact? The plaintiff offered the expert testimony of several individuals knowledgeable in both aquatic safety and the ability of deaf individuals to work as lifeguards.

Other points also concerned the appeals court. The expert asked the county whether the applicant would be able to perform perfectly “100% of the time.” Framing the question this way guarantees yanking the job offer. This is an impossible standard. Plus it’s being imposed on the plaintiff because he is deaf.

Here is another issue: The county went on autopilot after talking to the consultant; it did not go back to the plaintiff to discuss its concerns. The court writes: "[H]ad Oakland County communicated with [the plaintiff], he could have referred Oakland County to various individuals with expertise regarding the ability of deaf individuals to work as lifeguards, which may have dispelled unfounded fears and resulted in a more informed decision.”

Bottom line: The ADA mandates — no ifs, ands or buts — an individualized inquiry into whether a person covered by the law can do the job, with or without a reasonable accommodation. Yes, it takes time, effort and often money (i.e. experts). But it's the law.