Monday, February 22, 2010

What's a Poor Corporation to Do When Sued by Its Own Top H.R. Staff?

Over the years, I've represented a number of women who perform all or more than the usual duties of men, but receive significantly less pay and fewer promotions.   The pattern is the same whether representing one woman or many:  The top ranks are dominated by men, while the burden of performing greater work with less opportunity is carried by women stuck in middle management.

In a "dream case" for Plaintiff's lawyers, 4 top Human Resources executives for Dell Computer Corporation have joined to file a class action lawsuit for gender discrimination based on their inside knowledge the lay-off selection process.

 A 14 member all-male Executive Leadership Team that runs the Company. [Yes, Michael Dell is on the Team].   This team laid off 8000 workers in 2007-2008.  The Human Resources executives laid off state they have the hard statistical evidence to show a disproportionate number of women and older workers were targeted to take the brunt of the lay-offs.

Damages sought:  $500 million for the class, based on accruing and future loss wages.  The case was filed in 2008.

Here's the hard reality:  lay-offs become just bigger displays of private, often unconscious but illegal biases. "Undesirables," that is, older or minority workers, are often the last to be hired in a booming economy, and the first to be let go in a recessionary economy.  The employer would like every lay-off to be conclusive evidence of "economic necessity" and will argue that whatever the case for discrimination, the employee would have been terminated anyway for lack of work.  The evidence to overcome that contention may be statistical, that is, intent will be presumed from evidence that the "protected category" of workers would not have been laid off in such large numbers if picked randomly from the work force.

 In an individual "disparate treatment" case, the employee can present evidence that his or her varied work experience, successes at work, education, special classes or "on the job" training, diligence, and adaptability/flexibility for the remaining job tasks all indicate that she was more qualified than the persons retained for the position. She may also show her position was not truly eliminated, but simply modified marginally and given a different title, but still requires many of the same skill sets and tasks as the prior position.  Helpful, but not necessary proof is that a person outside the "protected category" replaced the employee bringing the complaint.

Two fallacies I preach to all employees:  Your "at will" status does not mean you are without legal rights against discrimination, harassment, retaliation, and whistleblower protection.  Secondly, lay-offs can be smokescreens to hide discriminatory and retaliatory motives by supervisors who create "official" paper trails to justify your selection for lay-off.  You can rebut those "reasons" as lies, and win your case.    

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


Wednesday, February 17, 2010

My Life in Vice

I am known to some as the "vice chair" of the Orange County Bar Association, Labor & Employment Law Section. I'm not sure I want to be associated with a title using the word "vice" but I can live with it. The Vice President of the United States is generally thought to be an honorable position (until the last several elections) but when the title trickles down to a local county bar association, I think people are quick to entertain an alternative meaning. We are after all lawyers, ranking slightly above spineless slugs in the popular imagination.

So I researched the matter. (This is the way an attorney handles stress--in addition to alcoholism and drug abuse.) The Handbook for the Association uses the term "Chair Elect." This mysterious moniker conveys almost nothing about my duties or functions. It has the feel of a year in limbo, a bench warmer waiting for opening day next season. Yet, I am comfortable with the ambiguity.

I like defining my position. I've elected to be an active "chair elect," helping the Chair arrange speakers, and attending to the details of communicating regularly with Association staff. Today, first charming the photographer at our first Meeting of 'Chairs" and "Chair-Elects," I managed to have my picture taken with the President of the Orange County Bar Association. Maybe I do deserve that "vice-chair" title. My craving for visibility can be a problem.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


Tuesday, February 16, 2010

Recovering Happiness in the Face of Job Loss.

Martin Seligman is a pioneer in the area of "positive psychology". He has written a book entitled "Authentic Happiness" that examines just how much control we really have over the emotion of "happiness." The answer is not so much as you might think. More exactly, the answer is about 20% to 30% of our emotional state can actually be influenced long term by changing our perceptions and attitudes. The balance of 70% to 80% is determined by our individual genetic code and our circumstances. Seligman uses a basic formula to describe the factors: H=S+C+V where H is your enduring level of happiness, S is your emotional "set point," C is the circumstances of your life, and V represents factors under your voluntary control.

Unemployment is an emotional drain, and challenges our resources for happiness. Yet, the evidence from psychological studies is that many of us have a "set point" for happiness, and that variations in our "ups and downs" is not as widely fluctuating as you might think. That 20% to 30% of our happiness formula due to voluntary changes therefore will move our happiness to the top of our set range, and hopefully keep it there, but we will not likely will ourselves into a different basic personality profile.

For the unemployed, or for anyone dealing with a negative life experience, the good news is that "happiness" studies indicate that either having more or less of worldly possessions is not a good predictor of happiness. What is important to achieve the result of happiness is to have a sense of purpose and meaning in your life, and to work diligently to fulfill that purpose each day with meaningful, challenging (but attainable) goals.

Interestingly, despite an initially dismissive and even hostile attitude toward religion and happiness, scientists are now accepting the data that persons of sincere faith in a beneficent God have more hope for the future, and more optimism about the present, and are generally more resilient emotionally. Perhaps these "believers" have that sense of purpose and meaning that Seligman defines as a major contributor to happiness whatever the changing circumstances of life.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


Monday, February 15, 2010

Dwight Not Trite; Jim & Pam Should Understand

Dwight Schrute of "The Office": a total suck ass with no social skills you might say. Yet Dwight has utility. The perennial outsider may stimulate more penetrating ideas and require better debate in the workplace just because, occasionally, he may have, by pure accident, a brilliant or at least useful idea. If so, and if someone in the "normal" group identifies it as a good idea, that person will be put to the task of advocating for the idea against the preconceptions of the others in the herd. This forced advocacy actually generates insights, agreements, and creative movement.

"Group Think" is dangerous, whether in the cockpit of a plane in which both pilot and co-pilot are in denial, or in a project team, where members overestimate their performance because of shared ego investment. The solution: allow a "diversity" of views. Inefficient, irritating and sometimes confusing, yes, but diverse thinking can have big long term payoffs.

We are in a fearful time because of economic uncertainty. Employers are not immune from this fear in the way they hire. Fear can lead to picking only "safe" and "predictable" and blandly "compatible" employees. If you're in a business that thrives with a rich mix of potential courses of action, fear is toxic. It limits the range of perceived options. Playing it safe is actually a prescription for failure, not safety. While there may be no delight in Dwight, his different take on the world can be a stimulus for discussion leading to good ideas.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

From: Wacky 'Dwight' may be just what offices need by Lisa Schencker

Saturday, February 13, 2010

Stress of Unemployment.

Here are some thoughts by psychologist Batya Ludman (with some of my own added):

1. You are the product. Package yourself to sell.

2. Rework your resume to showcase your strengths. Market yourself.

3. Be flexible! Show adaptability and learn new skills. Your old job may never return.

4. Your self-esteem has taken a beating by unemployment. Don't let that show in an interview.

5. Be positive and demonstrate a good attitude. There is enough negativity at work already.

6. Don't talk about the bad work environment of your previous job. Focus on successes.

7. The day to day grind of unemployment can be draining. Set small attainable goals each day.

8. Be kind to yourself. You're going to have tough days emotionally. One day at a time.

9. Set a daily schedule. You must structure your own time. It will build confidence and order.

10. Take care of your whole self: emotional/physical/spiritual. RED=Rest, Exercise, Diet.

11. Develop and rely on friendships. Build each other up. Encourage each other. Listen.

12. Depression is probably inevitable, and sucks energy. Get help. See a professional if needed.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


Friday, February 12, 2010


James Russell Lowell was a great American Essayist and Poet of the 19th Century, and a contemporary of Abraham Lincoln. The following are excerpts, one line only for each extraordinarily long paragraph of Lowell’s long essay: “Abraham Lincoln 1864-1865.”

1. Men might gather rich crops from it, but that ideal harvest of priceless
associations would be reaped no longer; that fine virtue which sent up
messages of courage and security from every sod of it would have evaporated
beyond recall.

2. We felt an only too natural distrust of immense public meetings and
enthusiastic cheers.

3. The only faith that wears well and holds its color
in all weathers is that which is woven of conviction and set with the sharp
mordant of experience.

4. A nation can be liable to no more insidious treachery than that of the
telegraph, sending hourly its electric thrill of panic along the remotest
nerves of the community, till the excited imagination makes every real danger
loom heightened with its unreal double.

5. Here was indeed a dreary outlook for persons who knew democracy, not by rubbing shoulders with it lifelong, but merely from books, and America only by the report of some fellow-Briton, who, having eaten a bad dinner or lost a carpet-bag here, had written to the "Times" demanding redress, and drawing a mournful inference of democratic instability.

6. And it is for qualities such as these that we firmly believe History will rank Mr. Lincoln among the most prudent of statesmen and
the most successful of rulers.

7. Mr. Lincoln's task was one of peculiar and exceptional difficulty.

8. It is always demoralizing to extend the domain of sentiment over
questions where it has no legitimate jurisdiction; and perhaps the severest
strain upon Mr. Lincoln was in resisting a tendency of his own supporters
which chimed with his own private desires, while wholly opposed to his
convictions of what would be wise policy.

9. Never did a President enter upon office with less means at his command,
outside his own strength of heart and steadiness of understanding, for
inspiring confidence in the people, and so winning it for himself, than Mr.

10. Mr. Lincoln, as it seems to us in reviewing his career, though we have sometimes in our impatience thought otherwise, has always waited, as a wise man should, till the right moment brought up all his reserves.

11. In our opinion, there is no more unsafe politician than a
conscientiously rigid doctrinaire, nothing more sure to end in disaster than a
theoretic scheme of policy that admits of no pliability for contingencies.

12. That Mr. Lincoln is not handsome nor elegant, we learn from
certain English tourists who would consider similar revelations in regard to
Queen Victoria as thoroughly American in their want of bienseance.

13. People of more sensitive organizations may be shocked, but we are glad
that in this our true war of independence, which is to free us forever from
the Old World, we have had at the head of our affairs a man whom America made,
as God made Adam, out of the very earth, unancestried, unprivileged, unknown,
to show us how much truth, how much magnanimity, and how much statecraft await
the call of opportunity in simple manhood when it believes in the justice of
God and the worth of man.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.


Thursday, February 11, 2010

Wage rage: $1 million per hour ?

A dispute over two hours overtime, if things go south for the employer, could average a million or more per unpaid hour.

Assume an employee claims he is entitled to two hours unpaid overtime. Assume he is wrong, and his time card was modified based on his error or deliberate falsification. He is fired for time card falsification, and sues his employer. The employer puts on no evidence, but makes a motion for the court to dismiss the suit after the employee has put on his best case. The trial court grants the motion, and the employee appeals.

The Court of Appeal reversed in these circumstances, restating the law that a bona fide complaint, informally and internally communicated, that overtime is due, can be the basis for a wrongful termination case if the employee can prove that the termination was motivated by his complaint for wages. The case is Barbosa v. IMPCO Techs., Inc. (2009) 179 Cal.App.4th 1116.

The case for "wrongful termination in violation of public policy" is not just for the unpaid overtime. That is incidental to the real case for future wage loss and emotional damages, and punitive damages. A savvy plaintiff's lawyer can emphasize the emotional loss component of the case, and suggest a conservative doubling of that amount as punitive damages.

This case was returned to the trial court by the Court of Appeal to decide if the employee was reasonable (even if mistaken) in believing he was entitled to the overtime. The verdict has not yet come in.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.