Work Matters

Etiquette in a bad job market

Social Qs, a column in the Sunday New York Times by Philip Galanes,takes questions from readers. Here is one: "I know a fair number of people who work for the firms that are imploding on Wall Street. When I see them, should I ignore the issue or say something like: 'I'm sorry things are so bad at your company. It must be stressful for you'?" That's a good question, especially now that layoffs are hitting firms and hitting them hard. Galanes' advice is to look at the conversation contextually: Is the person a friend or a frenemie? If the laid-off worker is a friend, raise the issue yourself, but don't bring it up in front of a spouse or children. Trust me, that works. My old law firm did a Titanic in 2001. Those were tough times. But I never have forgotten my friends who raised the issue with me when it would have been difficult for me to broach the subject with them. People going through tough work matters feel exposed and vulnerable. When others acknowledged the issue, I thought of it as a welcome relief, not as an impolite intrusion.

How to lay people off

I'm reading an interesting book, "Reality Check:The Irreverent Guide to Outsmarting, Outmanaging, and Outmarketing Your Competition." It's Guy Kawasaki's latest on business, with a focus on startups. But the book is target rich on Work Matters issues. Chapter 77 deals with "The Art of Laying People Off" -- all four wise pages and 12 bullet point of it. A sample:

• Cut deep and cut once. This is good advice. The drip, drip, drip reduction in force just serves to suck the life out of the employees. If things turn around, Kawasaki points out that managers have the "high quality problem of having to rehire."
• Move fast. People talk. We are social animals who will yak away. The result is that, once a company even starts to think about layoffs, word leaks. It reminds me of the Shakespeare line, "tis done, tis best done quickly."
• Share the pain, but don't ask for pity. Kawasaki notes that the bosses also should take a hit, even if it's symbolic, to show solidarity with the workers. Don't take a bonus. Move to a smaller office. Whatever. He tells managers who do the firing not to whine; after all, they are keeping their jobs. I don't know about that advice. Survivors need our love.
• Show people the door. He advises letting people go on Friday (the weekend lets them decompress), then allowing them to finish the day or complete the next week. Maybe that flies in Silicon Valley but not in my world. I say lower the boom on Monday. That gives people the rest of the week to look for a job. Let them go on Friday , with business closed on the weekend, and they end up looking for a lawyer. But, other than the week of gracious easing-out, don't let those who have been fired stick around. They can rip off company stuff (I'm not talking yellow tablets here -- important stuff like client lists, etc.). Plus, they remind the survivors of how vulnerable they are.
• Give minimal severance.I think this advice depends on the company. But if managers do offer a month or a couple of weeks of severance, they should forget asking the employees to sign a release. That just angers the employees. And remember, a rejected offer of a release can come into evidence at a subsequent trial.
• Don't hide in your office. His final point is excellent. The temptation for a manager is to seek shelter post-layoff. Don't. Kawasaki observes that the remaining employees need to see the bosses talking, working, walking the halls and generally moving the company forward.

It's a great book and even has a chapter on "The Top Sixteen Lies of Lawyers." More on that later.

The day after the day after

It's over. And that feels good. The campaign taught us several Work Matters lessons. Here goes.

• No. 1: Sarah Palin blaming reveals the fundamental attribution bias.This cognitive bias tells us that when something goes bad, we search for the one reason it did. Our minds want to organize what is, basically, a disorganized world. As the novelist Tom Clancy says, "The difference between fiction and real life is that fiction must make sense." So I listened to the radio talk shows and the bloviating pundits the last two days, and they all seem to want to blame Palin for the loss. That's the fundamental attribution bias in action. The same thing happens in employment law. Something goes wrong at work, so someone must be responsible -- and thus disciplined or terminated. Find that employee and all will be well. No, it won't. Most issues reflect systemic problems, not individual ones -- in politics or at work.
• No. 2: Trust the good data. Dewey v. Truman. Nice story. Solid narrative. Won't ever happen again. The polls, when done right, are accurate. Pew and Rasmussen nailed the final result. Nate Silver of the FiveThirtyEight Web site did as well. Listening to the conservative talk shows driving to work, driving home and before turning the lights out, you'd think they lived in an alternate universe, a la "The Twilight Zone." It was all over for McCain/Palin a month ago. As John Adams said in defense of British soldiers, "Facts are stubborn things." While inconvenient, they are still real. The same, again, is true with employment law. Jury consultants I have worked with over the years use focus groups. When well picked and given both good and bad facts -- the biggest mistake employers make is to be drinking the Kool-Aid of their own case when presenting to a focus group -- they give a pretty accurate result of what will happen if you go to trial. Believe the data.
• No. 3:  Use your own story. Don't hijack the others side's. A few days after Palin was named as the veep choice, I blogged on it, saying it was a persuasion mistake. Why? Obama's narrative was change. Trying to hop on the change wagon with Palin"s selection only reconfirms the other side's narrative, it did not create McCain's own. Same with employment law jury trials. I have seen employers, when getting up to do their opening, rebut the plaintiff's opening instead of creating their own reality. Again, rebutting the other side's story only serves to have the jury hear the plaintiffs version twice and your version once(and garbed with the plaintiff's frames at that).
• No. 4: It's not about you, it's about them.John McCain's campaign stressed, over and over again, his war record. To do so made the campaign of persuasion about him, not about them (the voters). Obama always made it about the other, not about him. Am I saying that personal stories have no place in a campaign? No. But the personal story must be something that they can identify with. Most have never been to war, but many were raised in poorer families, struggled to do well, and overcame the obstacles along the way. An archetype. Look at our current president. His narrative was redemption: I drank. I led a wasteful life. But I overcame it, surmounted the obstacles. Another archetype. Same with a trial. Back in the mid-1980, I tried an age case. The employer's narrative: We lost a lot of money last year, and to maintain an acceptable level of profitability as a publicly traded company, we had to let a lot of employees go. All true. But the jury cared about none of them. Zero. Can you change the facts? No, but you can change the story. So instead, say, "We needed to do a reduction in force, but it was done fairly and done to try and keep the best employees." A juror gets that.
• No. 5. Pick a story. Stay with it. Don't pile on.Obama tinkered with his message. It morphed from change-we-can-believe-in to change-we-need. Fine tuning is fine. Constant changing is not nor is sending several messages at once. Obama pals around with terrorists. He is a Socialist. He can't be trusted, because he is a celebrity. Piling on only confuses people, when what they want is clarity. I have seen employers actually change stories in a trial:"We fired him, because he was a poor performer" becomes "Yes, and we also think he was a thief." I actually read that in a trial transcript where I was hired to do the appeal. The worst is when an employer, in responding to the Equal Employment Opportunity Commission's investigation, decides that if one reason for an adverse action is good, then five or six are better. It often turns out that there was only one real reason, but the employer, in responding, was afraid not to raise something. (Here is a tip: when responding, get the facts, and have those who made the decision at issue and who will need to testify about it at trial, read and approve the content of the EEOC response. If the response is wrong, the plaintiff will use it at trial.)
  

That's about it. Your thoughts? In any event, congratulations and best wishes to our president-elect and his family.

Getting through the tough times

The country is going through some tough times. Employees are affected. What should management do? Over the weekend, while eating at my regular breakfast place near White Rock lake, I ran across a couple of interesting pieces. The Monday issue of "Investors Business Daily" published "Channel Worker Worries Into Constructive Action," Morey Stettner's interview of Bill Treasurer, author of "Courage Goes to Work." His advice:

• Employees watch how the bosses act, especially when business is bad. Boss conduct is just not watched but amplified. So, bosses need to project positive emotions, not negative ones;
• Be transparent. Share plans for dealing with business issues. Explain why the company will pull through;
• Set incentives to get workers to pay attention to the job at hand; and
• Be honest about the pickle you are all in together, but assert a story with a good outcome, not a bad one. People will, I think, conform their conduct to a compelling story. It's up to a company to frame the story.

On this last point on storytelling, I suggest "The Storytelling Factor," Annette Simmons' excellent book. By the way, the most interesting advice I ever read on taking a company and its employees though bad times was in "Good to Great," the Jim Collins work on why some companies survive, and others don't. He quotes Admiral James Stockdale, an American hero who was the highest ranking POW in North Vietnam. He asked him how he survived and why others either did not or were broken when they came out of their horrible captivity. Stockdale said that the ones who did not make it thought they'd be out by Christmas, and freedom did not come, or by Easter, and it did not come. Stockdale said he got through it by embracing what Collins came to call the Stockdale Paradox: taking a raw and unfiltered look at the world of pain you are in but, at the same time, always believing that something will break your way and you will see a turn around. I hope we as a country don't have to test out the viability of the Stockdale Paradox.

Choosing day 2008

Here are a few words from one of our greatest poets on today, choosing day.

ELECTION DAY, NOVEMBER, 1884
(Walt Whitman)

If I should need to name, O Western World,
your powerfulest scene and show,
‘Twould not be you, Niagara ― nor you, ye limitless prairies ―
nor your huge rifts of canyons, Colorado,
Nor you, Yosemite ― nor Yellowstone,
with all its spasmic geyserloops ascending to the skies,
appearing and disappearing,
Nor Oregon’s white cones ―
nor Huron’s belt of mighty lakes ―
nor Mississippi’s stream:
This seething hemisphere’s humanity, as now, I’d name ―
the still small voice vibrating ― America’s choosing day.

Answer to quiz

Here's the answer to yesterday's quiz. How much did the jury award? $140,000. Did the Fifth Circuit let him keep it? Yes. Why? The 5th Circuit follows the "maximum recovery rule," which it says includes looking at other similar evidence and the awards flowing from them and compares the evidence in those cases to the evidence in this case. While at the high end of the spectrum, in Sept. 30's Tureaud v. Grambling State University, the court said the $140,000 was not clearly excessive. Nice theory. Here is what they are really saying. "We know it when we see it. We know what's fair. This is fair given these particular facts." Let's be honest. The 5th Circuit decides what it wants to do and then backs into the answer. Having said that, what are some of the dynamics that arguably give them the fodder they need to reach a result?

• The statute says that loss of "enjoyment of life" is an element of damages. (As my mother would say, "Whoever said life was meant to be enjoyed?") That's a wide-open standard and a very low one. But it is the law in a very literal sense. And court, especially conservative ones, will follow the "letter of the law."
• Plaintiffs who can tell a coherent story of emotional pain stand a better chance of an award and its affirmance. My sense in this case was that was exactly what the plaintiff did. He was a longtime federal employee with law enforcement duties. It was hard for him, after a life time of achievement, to be tossed when all he was doing is standing up for the right. He was humiliated.That's compelling to a court. Judges are just people who respond to stories. Putting on the robe does not make them less human. Too often I see plaintiffs testify "I lost sleep, had to get some drugs for an upset stomach, blah, blah, blah." That's not a story, that's a checklist. Plaintiffs lawyers who want the do-re-mi of compensatory damages need to structure a story around the checklist. The money will come. Be lazy and stick with a checklist? The money won't. It's that simple.

Quiz

Quick, here’s a quiz. An employee gets fired and claims retaliation for opposing purported discrimination against an applicant for employment. The jury sides with him. His testimony on compensatory damages is that the discharge was " 'emotionally embarrassing' " and a " 'painful experience' " because:

1. He had never been discharged from a previous job;
2. He was part of a tight knit law enforcement community, and his discharge was the subject of gossip in that community (he was fired as the police chief at the university and had previously been a supervisor with the U.S. Customs Service Office of Investigation);
3. He was repeatedly questioned about the discharge by his peers and subsequent employers;
4. He was unable to obtain suitable employment after his discharge;
5. He gained " 'quite a bit' " of weight, was stressed and " 'had the blues' " because of the discharge.

How much did the jury award? Did the 5th U.S. Circuit Court of Appeals allow him to keep it?  The answer in tomorrow's blog.

David/Diane: A story of gender identity disorder

In Schroer v. Billington, a federal district court decided on Sept. 19 that a person undergoing a change from male to female states a claim for sex discrimination when a job offer is revoked as a result. David Schroer, military veteran and counterterrisom expert, got a job offer from the Library of Congress to be its go-to person on terror and international crime. The offer got yanked when he disclosed that he was undergoing a sex change and would be known afterward as Diane Schroer. The library got all worked up and nuked the offer a few days after the disclosure. The U.S. District Court for the District of Columbia applied cases on sex stereotyping and found in a bench trial for Schroer. That is old hat; other courts, including one in Texas, have gone that way. But here is what is new -- brand new and exciting ( I love employment law.) The court said that the employer violated Title VII, because it yanked the offer because David was changing sexes and that is, per se, discrimination "because of sex." The court looked at it this way: Employee converts from Christianity to Judaism. Employer fires the employee and says we have no bias against Jews or Christians but only converts. The court: " 'Discrimination because of religion' easily encompasses discrimination because of a change of religion." Same here. It is literally discrimination because of sex. That's a brand new theory. It is also elegant -- no more fact-intensive inquiry on whether the employer engaged in sex stereotyping (Did the male act in a too-feminine way? Did the woman act in a too-male way?) No, just this: The employee is undergoing a sex change; the employer learns of it; something bad happens as a result. It's like a new theorem in math or physics. I will keep readers posted. Readers: agree or disagree? Regardless, here is one thing we can agree on: The law is beautiful, because it adapts. It is written broadly enough so that its application is never static but always evolving.

The forbidden word

While in Santa Fe, N.M., I spoke about how lawyers can help their clients make ethical decisions. While it may seem odd, this was my first piece of advice: Don't talk to your clients about ethics. Why? I have tried a lot of cases in the last 28 years, and I have sat through a lot of jury selections, waiting for my case to be called. I can spot rookie lawyers when they ask the jury pool, "Can you be fair?" I watch the potential jurors, imagining a cartoon bubble appearing above their heads: "Of course I can be fair. In fact, I am the fairest person I know." You get the idea. It’s the same when you use the word ethics. Once you say something is an ethical issue, the person to whom you are speaking has the same reaction. Instead, talk about "integrity-based decisions" or "the brand identity of the company being at stake." But never, ever, blab about "ethical decisions." The listener will shut down. The listener will not listen. Your point -- no matter how well taken, no matter how well intentioned -- is lost. We all (including yours truly) think we are more ethical than we really are, we are thinner than we really are, we are better looking than we really are, and we are not as bald as we really are. It’s just human nature.

Heed these dangers signals from clients

At the annual meeting of the Labor and Employment Section of the State Bar in Santa Fe, N.M., over the weekend, I had dinner with several plaintiffs lawyers. We got to talking about early warning systems: What is it that a potential client says that sets off the alarms, rings the bells, screams danger, and tells a smart plaintiffs lawyer not to take on this client? Here is a sampling:
• "If the McDonald's case where the lady was burned with hot coffee is worth X (I forget the amount but it was a lot), then my case must be worth Y (a lot more)." Funny how that case has permeated our collective brain.
• "The company will never take this to trial. They can't afford the bad publicity."
• "My former employer always settles cases. They won't take it all the way."
Whenever those plaintiffs lawyers hear these phrases, they think hard about whether to represent the potential client. So what is it that defense lawyers tune into? One is when the client says, "Money is no object. This employee must be taught a lesson. How dare they sue?" Trust me, money is always an object. Taking on these people as clients almost always results in complaints about the bill two or three months down the line. Here's the other thing to watch for, via a story. A CEO comes to see me. He needs noncompetes and needs them fast. He says, "I’m not sure why I really need a noncompete. After all, my employees love me. Of course, I yell at them and throw things at them, but they know it is just part of the creative process." This was several years ago, but I have never forgotten it. Why? If he treats his employees this way, how will he treat his lawyers? I passed on the work even though we are all, each and every one of us, under intense pressure to bill, bill, bill. But I have always been guided by Mark Twain's counsel: "It is easier to stay out than to get out." Maybe he was talking about marriage. I don't know. But what he said has been, for me, so right, so often. And, as salesmen remark, the best sale they ever made was the sale they didn't make