RETHINK: ARE YOU YOUR JOB?

"If the pink slip doesn't fit, get redressed!"
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Imagine: Greater Productivity With Less Stress

"If the pink slip doesn't fit, get redressed!"

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Ebenezer Scrooge Is Rebuked, and Tiny Tim Gets His Referral Fees.

In a battle over one-third of $13.5 million, let the gamesmanship begin. Two Orange County law firms were engaged in a battle to share class action attorney fees. The battle was between the referring class-action attorney and the prosecuting class-action attorneys.   The key rules of the gamesmanship were: 1) Rule of Professional Conduct 2-200 and 2) Rule of Court 3.769.

Rule 2-200 requires that an attorney  to provide full disclosure to his client  of any proposed fee sharing agreement and  that he obtain his client’s  prior written consent for the fee splitting.   Rule 3.769 requires that as part of a class action settlement, the trial court, in order to award attorneys fees, must be provided with the full retainer agreement between the attorney and the class.

In the case of a class action, the named class representives ordinarily would sign the Rule 2-200 fee splitting agreement on behalf of the class.  In this case,  matters became complicated when the referring attorney settled a separate individual whistleblower case against the same employer-defendant named in the class action.  The referring attorney as part of the settlement of the separate individual whistleblower case agreed to confidentiality of all matters learned in the individual litigation. 

Now the class-action attorney, after several years of assuring the referring attorney that the referral fee was to be paid, asserted that a fee arrangement with the referring attorney would risk creating a “conflict of interest” between the attorneys and the class clients.  That is, presumably, the defendant employer would assert that the class attorneys should be disqualified from representing the class because they were in violation of the confidentiality agreement of the referring attorney. 

  

The exact nature of the conflict is not spelled out in the Court of Appeal decision, but the confidentiality clause was prospective only, that is, information shared with the class action attorneys by the individual plaintiff attorney before the settlement could not be the basis for a conflict of interest.

This latter point is of some relevance because it tended to show that the class-action attorneys were using a bogus reason to lock out the referring attorneys claim for fees. The tactic used by the class-action attorneys was to  dismiss the originally filed class-action which used the names of the class representatives  provided by the referring attorney.  The class-action attorneys then refiled the class-action using the names of different class-action representatives, hoping thereby to defeat the referring attorneys lien for fees.

The class action attorneys' ploy was simply this: there can be no referral fee paid because there was no signed agreement to split fees as required by rule 2-200. Consequence: the class-action attorneys were roughly  $4 million richer. One wonders if this diligent assertion  of Rule 2-200 was motivated by a noble desire to comply with the high purposes of Rule 2-200 to protect the public from conflicts of interest, or, was simple old-fashioned greed?

 The Court of Appeal, Justices Rylaarsdam, Aronson, and newly appointed Presiding Justice Ikola unanimously held for the referring attorney.   The Justices basically recognized that the procedural tactics of the class-action attorneys had unjustly prevented the referring attorney from notifying the court of its fee sharing arrangement. The court found that the reason the contract was not signed was due simply to switching class-action representatives. The Court of Appeal noted that this kind of “bait and switch” tactic would discourage class-action referrals, and that would be harmful to the public. That is, attorneys should be encouraged to refer cases to specialists within various areas of law.   The Court stated that class-action attorneys cannot wield Rule 2-200 as a sword to obtain unjust enrichment. 

 I am personally happy with this Court of Appeal ruling.  In my opinion, the Court simply refused to allow an ethical rule to be used for unethical purposes.

For the full decision, see:  Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler 2012 DJDAR16991 [Filed Dec. 19, 2012]



"If the pink slip doesn't fit, get redressed!"
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Making Space for Creativity in the Practice of Law

My experience with the "Creativity Crash Course" at the Stanford Online has motivated me to make some changes in my law office environment: 1) converted my entire hardware and software to Mac, 2) shifted to cloud based backup, and shfited to a fully wireless network 3) have gone fully paperless, 4) use wireless dictation and Dragon transcription, 4) dumped my rectangular desk and all file cabinets for a single round desk and a stand up laptop work station, and 5) added new artwork that communicates calm and "openness." The overall idea: greater productivity through more physical and emotional space and an invitation to collaborate and "move" while working.
"If the pink slip doesn't fit, get redressed!"
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Harvard University has created a massive data base from online testing for "Implicit Preference." Unconscious bias is our innate neurological filtering process that allows us to quickly assess "safety" from "danger" Our task in a complex modern society is to sort out useful and harmful biases. "Unconscious bias" is not a matter of being a "bad" person. Biases however can cause us to evaluate co-workers and acquaintances not only inaccurately, but also illegally. The challenge of the law is to implement a system of proof that allows a jury or judge to infer bias operated from circumstantial evidence. I think expert psychological opinion is sometimes needed to support how bias operates in managers who will vigorously declare under oath: "I am not biased."

"If the pink slip doesn't fit, get redressed!"
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Current Creativity Exercise

 I'm participating in a six-week Stanford University online creativity class involving 30,000 people from all over the world organized into creative teams. This week's assignment is to "be more attentive."  Specifically, we are to observe and record what we see at four retail outlets. From these observations will come opportunities to improve the way customers are serviced.

I am a lawyer and writer, and  maybe more importantly I'm a dad. Every one of these roles requires I pay attention and come up with creative solutions. I'm sure creativity is a major part of your world also.  Why not reframe the way you look at the world today to explore the possibility of other answers?

 The picture is my team's report from our first week. Fairly clear from the outset was that we were to create not only the way we approach a problem but the way we report the solution.

 

Prowlng for the Gaffe

I just read an article in the Los Angeles Daily Journal [“Binders Full of Platitudes” – Oct. 22, 2012, p.5] by Eric Kingsley of Kingsley and Kingsley, noting what a terrible "gaffe" Mitt Romney committed with the stated that he obtained "binders of women" to fill Cabinet positions while governor of Massachusetts. This statement allegedly demonstrated that Mr. Romney is an obstruction if not an outright opponent of equal pay for women. It's easy enough to see the statement for oneself by going to YouTube. I took the time to view the statement.

It seems to me that partisan fervor incline some people to pounce like tigers upon any imagined "gaffe". As an employee rights attorney I certainly advocate for equality in the workplace, and particularly equal pay for equal work. Still, I question why an intelligent man like Mr. Kingsley is so bent out of shape. I can't help but believe that Mr. Kingsley was in search of a gaffe--one that would give him a platform for writing an article like that I found in the Daily Journal. Mr. Kingsley ends his article with the statement: "This issue highlights the GOP's current 'war on women.'"

More interesting to me than this partisan diatribe about those bad corporations oppressing women, are the economic realities that lead to disparate pay practices. I don’t love corporations, nor do I hate them. They are simply mechanisms people use to make money. They are neutral while the people who run may or may not be ethical. But economics—now that is more scientific than Mr. Kingsley’s diatribe. Economics produces data.  The young woman posing the question to the candidates in the town hall forum noted in the question that women currently earn 78% of what men earn. Let’s start there.

I just finished reading a book by a liberal author who might take issue with Mr. Kingsley based on a review of the economic data and trends. It seems education and culture are the key drivers toward gender equality, not legislation or individual court decisions. The book is “The Great Divergence—American’s Growing Inequality Crisis and What We Can Do About It” by Timothy Noah [Bloomsbury Press, 2012].

Noah makes the following points: 

Single mothers suffer most from income disparity. (Implying that the divorce rate is a major contributor). The reality is that single mothers have less time to devote to extra hours of work and less flexibility in working, and thus earn less. That is, anyone unable to work the necessary hours to build a career or to attend school will earn less. There is a gender problem, but it has more to do with who is the primary caretaker of dependent children. [Between 1970 and 2004 the number of single parent homes in which minor children lived rose from 12% to 26%]

Our earnings gap between the “rich” and the “middle class” is not due to gender inequality in pay, because that gap is closing even as the gap between “rich” and “middle class” increases. See generally “Women in the Labor Force: A Databook, Report  (Washington: U.S. Bureau of Labor Statistics, 2009), 8.

The number of Master’s degrees awarded after 1990 has doubled, and most of those have gone to women. College educated women have seen their incomes increase in tandem with the productivity increases, while college educated men’s incomes have lagged behind productivity increases. More women than men in the U.S. earned doctorates for the first time in 2009, and after.

Supporting Washington Post Article
 

Part time female workers generally earn more than part time male workers. “The Gender Wage Gap: 2010,” fact sheet (Washington: Institute for Women’s Policy Research, Mar. 2011; updated Apr. 2011). [However, there is an apparent gender bias gap in that women taking first time positions right out of college earn about 16% less than males.]  Women now outnumber men in college and post-graduate education enrollments. [implying the gap will of necessity close in the labor supply-demand dynamic of a high-tech society].

In conclusion, I recognize that gender discrimination exits, against both genders. Are court decisions and verdicts the answer? The conclusion is inescapable: women are helping themselves by advancing their educations, and being more in demand than men for higher paying jobs. Not only that, but the most highly educated women will open doors for other women who work for them and with them.

Both Mr. Kingsley and I make our living representing women and other “protected categories.” Even so, neither he nor I, nor the U.S. Congress will produce the gender equality he and I dream to see happen. It appears the answer has come from an unexpected source: the greater appetite and adaptability women are demonstrating for success in the U.S. educational environment.

 

"If the pink slip doesn't fit, get redressed!"
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Only Manly Men and Little Women Need Apply.

In Garrison Keillor's Lake Wobegon, "all the women are strong, all the men are good looking, and all the children are above average."  Not a place where a charge of gender stereotyping is likely to occur.  But what about some workplaces in our country where those in power of hiring and firing might think all the women are to be "good looking," and all the men are to be "strong?"

I represent people who are in the process of changing gender in cases of discrimination based on gender stereotypes.  These clients are some of the most courageous persons I know as they seek to navigate not just the medical transition, but also the employment dynamics that emerge as the transgender employee makes his or her new identity known.  The social impact within a workplace is challenging for everyone:  a change of name, a change of dress, a change of toilet use, a change of grooming, a change of voice, a change of emotions, a host of changes, that are often first discovered by seeing the changes rather than discussing them proactively.

Companies wanting to avoid liability, or even more responsibly, seeking to be sensitive and supporting during this sometimes awkward shift in office dynamics, do not have to re-invent the wheel of company policies.  Guidelines are in place by progressive companies that can be used as models for both the company and the individual to make the “transition.”  See for example, the Ernst Young Transition Policy.

 An EEOC administrative decision in April, 2012 entitled Macy v. Bureau of Alcohol, Tobacco, Firearms & Explosive Agency provides an excellent overview of the applicable federal law protecting persons in gender transition.  More than that, it serves to clarify the essence of sex discrimination:  the perception of a person’s sexual characteristics in a way that leads to discrimination.  The gravamen of discrimination is not the biology of sex, but the stereotyped perceptions of what sexual identity is supposed to be.  

In Macy v Holder, Mia Macy was denied a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), after she informed her background investigator that she was in the process of transitioning from male to female.  She was informed shortly after that the position was no longer available due to budget cuts.  However, concern with the abrupt elimination of the position, she approached an EEO counselor to express her concerns.  Macy later learned that the position was not eliminated.  Instead, management had filled with another applicant.

Macy believed the offer of position was revoked because she disclosed her transgender identity during her background check.  She filed an EEO complaint against the ATF and alleged that she was discriminated against based on “sex, gender identity (transgender woman) and on the basis of sex stereotyping”.

The administrative EEO officers denied that Macy’s entire claims were under EEOC jurisdiction.  They tried to separate the claims: discrimination based on “sex”, which is processed by the EEOC and “sex stereotyping”, “gender transition/change of sex”, and “gender identity” which, they claimed, were not.     

The EEOC concluded that Title VII discrimination occurs when a person is treated differently because of stereotyped attitudes about how a person is to act as a male or as a female.  In reaching this decision, the EEOC relied primarily on the U.S. Supreme Court decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 239.  The Supreme Court held that Price Waterhouse managers acted in violation of Title VII when they denied promotion to a female accounting partner because she did apply the cosmetics or behavioral style they thought were “feminine.”   The EEOC, following Price Waterhouse, decided that the term “sex” describes not only “the biological differences between a men and women – and gender” but also the perceptions that a decision maker may have about how a person is to express his or her gender identity.

The decision is an excellent source of legal information for persons wanting to act within the law, and for those who have been wronged by those indifferent to Title VII’s protections. 

Link to the Commission’s Full Decision on Scribed.

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.