Work Matters

Lessons about anger from sports and sangha

It was an interesting few days in sports. Elizabeth Lambert played soccer for the University of New Mexico. Last week, among other things she allegedly yanked the ponytail of an opposing player, got tossed from the game and is now on suspension. On Sunday, Mike Smith, the coach of the Atlanta Falcons, allegedly got into a physical altercation with a Washington Redskins player. Lawyers are not all that different. Ever feel like yelling at opposing counsel or daydream about putting an obnoxious witness in her place? We all have. How do we stop ourselves from boorish behavior we may regret? Pema Chodron, in her new book, "Taking the Leap: Freeing Ourselves from Old Habits and Fears" suggests asking this question before flying off the handle: "Will I feel better when this is over?" In other words, if I give into my emotion, will I be better off or worse off? She says that to ask the question is to answer it because aggression breeds aggression. She suggests taking a pause, the length of three breaths. It is hard because habit tells us to react. When we react we feel secure. Anger brings false clarity; it feels good. I get that. But as my mom told me in explaining the facts of life, “A moment's pleasure often brings a lifetime of regret.”

Three questions to help resolve ethics questions

I am a big fan of questions: They focus, they clarify, and they resolve. So, I was struck by the "Three Rules of Thumb" included in the West Point ethics system, as explained by Ronald A. Howard and Clinton D. Korver in "Ethics for the Real World: Creating a Personal Code to Guide Decisions in Work and Life." If a cadet can answer all of the following three questions "no," then a decision passes muster. If not, it is not put into action. Here they are:

1. Does this action attempt to deceive anyone or allow anyone to be deceived?

2. Does this action gain or allow the gain of privilege or advantage to which I or someone else would not otherwise be entitled?

3. Would I be dissatisfied by the outcome if I was on the receiving end of this action?

Questions are more valuable than statements because statements are static. They are like fish on ice at the local market. A question engages, provoking thought. I think that company or firm mission statements should consist of questions, not the blah, blah, blah of a statement.

Economic dependence a key factor in assessing independent-contractor status

It's a tough economy. One solution is to use independent contractors, not employees -- no muss, no bother. When a business no longer needs them, off they go. That's a nice theory, but it's not the way things work in the 5th Circuit. On Oct. 12, the 5th Circuit decided Cromwell, et al. v. Driftwood Electrical Contractors Inc., et al. The allegations in the case were as follows: Cromwell and another guy worked for Driftwood splicing cables post-Hurricane Katrina. They worked for 11 months, 12 hours a day, 13 days on and one day off. They provided their own tools and work trucks with one of them making an investment in these items of $50,000 and the other $16,000. They provided their own insurance and paid their own taxes. But they were so busy for Driftwood that they could not, as a practical matter, work for anyone else. That allegation made all the difference to the 5th Circuit, which reversed an award of summary judgment to the defendants in a Fair Labor Standards Act suit, in which Cromwell and his co-plaintiff claimed they were employees and thus entitled to overtime. Why this decision from the 5th Circuit? While there were facts supporting a finding of independent contractor status, the key issue, according to the court, was that the plaintiffs "were economically dependant upon" the defendants. Lesson: An employer's lawyers should not get suckered into thinking his pile of facts bolstering independent contractor status always will outweigh economic-dependence factor. It won't.

5th Circuit: Evidence of the alleged harasser's homosexuality is a threshold issue in a same-sex sexual harassment case

To establish a claim of same-sex sexual harassment, must a plaintiff show that the harasser is homosexual and that the harassment was motivated by sexual desire? By a 2-1 vote in Love v. Motiva Enterprises LLC, the 5th U.S. Circuit Court of Appeals said yes on Oct. 16. Here are the allegations, according to the 5th Circuit’s decision to affirm the trial court’s dismissal on summary judgment: Connie Love and Jeanne Shirey worked together at Motiva Enterprises. Shirey ran her finger under Love’s bra strap and her underwear near her hip, while at the same time calling her "fat" and "disgusting," going so far as to allegedly tell here that she was "a sorry excuse for a woman," "useless as a woman," a "fat cow," and saying "you think that's a body you have." Shirey also rubbed Love's back. The dissent wrote that Love’s case should not have gotten tossed on summary judgment because, regardless of whether Shirey was a homosexual, these comments were directed at her "because of sex" and that's all Love needed to prove. The majority said there was no evidence that Shirey was homosexual and that was that. For now, evidence of the harasser's homosexuality is a threshold issue.

Set up incentives using reality, not wishful thinking

How should employers create incentives for their employees and align their interests with the company's? Check out "The Five Traps of Performance Measurement," by Andrew Likierman in the October 2009 issue of the Harvard Business Review. One key trap is when an employer focuses on just one metric to measure performance. He cites a firm that discovered its associates were gaming the system. They were measured solely by billable hours. Guess what?  They padded their time. The firm changed from one metric to several: yes, billable hours, but also other factors from excellence in work to mentoring efforts to contribution to the firm as an institution. Is it harder to measure lawyers on more than one metric? Yes. More time consuming? Yes. But, Likierman believes, it's worthwhile. He also looks at Southwest Airlines, which expanded one metric (timeliness of gate closings) for one position (gate agents) to several other positions whose performance impacted the achievement of the metric (ticketing staff, gate staff, loaders). His bottom line: "To create an effective performance measurement system, you have to work with the fact [that metrics will be manipulated] rather than resort to wishful thinking and denial." As firms and other employers crawl out of the wreckage of 2008-2009, let's see how they respond to performance measurement issues.

2nd Circuit takes on delegation of hiring obligations to independent contractors

We sometimes lose sight of the basics. Look at a Sept. 10 case from the 2nd U.S. Circuit Court of Appeals, Halpert v. Manhattan Apartments Inc. A plaintiff sues for age discrimination, saying he was not hired because of his age. The trial court throws the case out because the person responsible for the employer's hiring decision was an independent contractor. The appeals court says an employer cannot delegate out its obligations under the law; if the "independent contractor" had apparent or real authority to make hiring decisions, then the employer can be held liable for a discriminatory decision. The court took pains to point out what an employer is not liable for: namely, hiring decisions made by an independent contractor who is hiring for his or her own company but who an applicant unreasonably and incorrectly believes has authority to make hiring decisions on the employer's behalf. One side note: The plaintiff in this case represented himself. Got to admire the grit.

Administrative review board lets former in-house lawyer use privileged materials to mount whistle-blower case

Can a former in-house lawyer use attorney-client privileged information to establish that he was fired for being a Sarbanes-Oxley whistle-blower? On Sept. 30, the Administrative Review Board at the Department of Labor said yes. According to Jordan v. Sprint Nextel Corp., the opinion issued by the ARB, Jack Jordan worked as in-house counsel at Sprint Nextel. He asserts that he got the heave-ho for opposing conduct he believed violated various rules of the Securities and Exchange Commission. But to prove his case, he needed to use internal reports he made to his superiors, in which he told them of his beliefs. The ARB said it would be inconsistent for Congress, as it did when it passed Sarbanes Oxley, to require lawyers to blow the whistle on a material violation of SEC rules but then afford them no protection for doing so. One pro-employer footnote: The administrative law judges who hear these cases can issue protective orders to protect the privileged communications from disclosure. It is a short opinion (17 pages) and worth a read.

Rudeness and resulting resentment can foster cheating

I've blogged before on the work of Dan Ariely, a professor in the area of behavioral economics. The July-August 2009, issue of the Harvard Business Review has an interesting article of his, "The End Of Rational Economics." He talks about work done in the field of resentment, which I think has application to the work world. Here is one study. An actor meets with a a group of people, chosen at random in a coffee shop. They receive a piece of paper with letters on them and are told to find matching pairs. They get $5 for completing the task and sign a receipt when they get the money. Here is the twist: One group is the no-annoyance group, and the other group is the annoyance group. With the annoyance group, the actor interrupts his explanation of the project to the group by taking a cell phone call from a friend and talking about ordering a pizza. He makes no apologies for the interruption. He overpays this group by several dollars. He also overpays the no-annoyance group that was not interrupted by a phone call. Was the extra money returned? Only 14 percent of those in the annoyed group did so, while 45 percent in the no-annoyance group did. But what if the actor makes an apology for the interruption? The percentage of those in the annoyed group returning the money shoots up to 45 percent. My take-away is that rudeness empowers people to cheat, the thinking being "he did this to me, so I am entitled to do this to him." The same can be true in the workplace. An dissed employee will be more likely to skate by on an ethical issue. One who is dissed but receives an apology will be much less likely to do so. Look, we all lose our tempers and say things we should not. Employers should train managers to rectify these types of mistakes ASAP.

Employers have a defense to claims they failed to engage in an interactive process regarding reasonable accommodations

Recall that an employer's failure to engage in a reasonable-accommodation dialogue with a disabled employee is, in and of itself, an Americans With Disabilities Act violation. To have such a dialogue, the employer and employee must engage in an interactive process, with the employee saying what she needs and why and the employer saying yes, no or maybe. An employer failure to do so = employer liability. Are there any defenses for the employer? Yes, courtesy of McBride v. BIC Consumer Products Mfg. Co., Inc., an Oct. 5 opinion from the 2nd U.S. Circuit Court of Appeals: An employee had a chemical sensitivity. This was not good because her job was in manufacturing, and chemicals were part of the manufacturing process. The employer offered he a respirator; she said no. She went off on 12-month leave, upon the expiration of which she was fired on the grounds that she refused the respirator as an accommodation. She sued, saying the company's hard-line attitude was, essentially, take it or leave it — and thus an ADA violation. The 2nd Circuit said, no, it wasn't. Why? “[A]n employer's failure to engage in a sufficient interactive process does not form the basis of a claim under the ADA and evidence thereof does not allow a plaintiff to avoid summary judgment unless she also establishes that, at least with the aid of some identified accommodation, she was qualified for the position at issue,” wrote the court. Here, the employer didn't engage in dialogue beyond its offer of a respirator (that’s not good for the employer), but the plaintiff couldn't show that an accommodation was possible (that’s even worse for her); thus, she loses. The 2nd Circuit tossed out some cautionary notes to employers who become too infatuated with this ruling. No. 1: By failing to engage in the interactive process, an employer risks not discovering a means of accommodation. No. 2: Failure to engage in a sufficient interactive process where accommodation was, in fact, possible may constitute prima facie evidence of discrimination on the basis of a disability. But, for now, all is well with this employer.

Embrace twitterers, tweeters, tworkers or whatever you want to call them

Jay Shepherd is a management lawyer who writes an always interesting and informative blog, "Gruntled Employees." The Aug. 20 posting on why Twitterers make better employees (he calls them tworkers) caught my attention. Here are a few reasons: They want to be a part of a community. They do not follow fads, but they are interested in trying new things. They can express themselves concisely; Twitter limits tweets to 140 characters, not words. His advice: "Employers: don't ban Twitter from the workplace. Instead, look for good tworkers." A few thoughts of my own: I think that tworkers will turn into better writers. They understand, to borrow a military term, B.L.U.F.(bottom line up front), which, after all, is the language of American business. Historians look back on the memoirs of President Ulysses S. Grant as being among the very best, if not the best, example of that genre. Why? Grant wrote clearly and developed that clarity writing out military orders. Also, Twitter enables those with the same interests to meet one another, which benefits employers. A business contact called me, wanting to know if there were any law review articles on a particular employment law issue. I said sure and said I'd send it along. How did I know the article existed? One of my followers on Twitter tweeted about it the day before.