Friday, July 29, 2011

Why Does This Case Disgust Me, and Why I Think it Will both Stink & Sink with Jurors?

Opening statements were given this week [7-29-11] in L.A. Superior Court in the case of TCW v. Gunlach.

Trust Co. of the West (TCW) sued one of its top performing bond investors, Jeffrey Gundlach  for stealing  an enormous volume of data that TCW asserts were “trade secrets.”   Gunlack and his staff apparently copied the mass of documents and data in anticipation of leaving to form their own competing business.  Gunlack and his cohorts then countersued TCW for about $500 million for future management fees it said were owed based on an oral agreement. 

Gunlack also claims he was wrongfully terminated.  Gunlach was fired in 2009, and you may recall the collapse of the market due to the real estate bubble burst was in 2007-09 and continuing.  Gunlack’s great success at TCW was that he somehow managed to invest successfully in mortgage backed securities. [Sorry, I don’t understand how he managed to do what Goldman Sachs and Bear Stearns could not manage to do].    TCW’s assets grew from $9.2 Billion in 2005 to $110 Billion in 2009.  With his success, according to TCW attorneys, he grew more arrogant, more insubordinate, and more bitter that he was not made CEO.

Thursday, July 28, 2011

"I Am Telling Someone Who Looks and Acts Very Much Like the Jurors That She Is An Evil Discriminator."

I have a dream . . . a bad dream!  I am standing before my client’s peers in a discrimination trial, and I am pointing an accusatory finger at a well-dressed, professional looking employer.   Her lawyer has worked hard at presenting her as a successful entrepreneur with a sterling reputation for good character.  I am screaming at this paragon of civic achievement with aspersions of “racist” or “ageist” or “misogynist.”  You get the picture.  I am telling someone who looks and acts very much like the jurors that she is an evil discriminator.  

The judge then asks me to present my evidence.  I look somewhat lost.  Evidence?  Well, she fired my poor client, you honor.  She fired me client for a totally unbelievable reason.  My client was replaced by someone outside her “protected category.”  “Really?”  says the judge, who is about to dismiss the case.  I desperately plead case law.  The judge has to admit my basic proof seems to raise a technical question of fact for the jury to decide. 

I think I’m home free when I look over at the jury, who will now get this case for decision.  They are either bewildered or openly hostile.  The audacity of a lawyer to claim an evil motive by such a nice person, and based only on circumstantial evidence.  Later, the judge reads the jury instructions that define my client’s burden of proof.  Nowhere in the instruction is there a requirement of direct evidence to prove discrimination.  This technical point provides me little solace. 

I spin the case as much as the evidence allows.  I focus on the jury instruction that outlines my basic proof requirements.  I hone in on the nature of circumstantial evidence, and that the jury instruction will allow them to find discrimination even if there is no evidence that the decision maker who fired my client uttered a syllable of race or age bias.  They’re still looking at me that way.   I feel I am floating in space with nothing to grab onto. 

Employers Are Using Facebook & Twiiter Postings to Fire Employees: Privacy Rights At Issue.

The following is a reprint of an article by Hoover, Hull, LLP, a boutique business and commercial law firm in Indianapolis, IN.

Social media including Facebook, Twitter, and LinkedIn, have become mainstays in today’s business environment. Social media creates opportunities to promote products, recruit employees, and monitor employee performance. Public information posted online can also be a source of free discovery in litigation as plaintiffs may be compelled to produce public postings through formal discovery. See E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) (requiring production of employees’ social networking site in Title VII action alleging sexual harassment).


Employers can lawfully use information obtained from an online profile as a basis for an adverse employment action. However, used improperly, an employer’s reliance on social media postings can lead to potential liability.

For example, accessing information from password protected sites or around certain privacy settings may give rise to a claim for invasion of privacy or violation of the Federal Stored Communications Act (“FSCA”). See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 883-84 (9th Cir. 2002) (accessing online profile when the user has taken advantage of certain privacy settings resulted in an invasion of privacy claim); Pietrylo v. Hillstone Rest. Group, 2009 WL 3128420 (D.N.J. Sept. 25, 2009) (terminating two employees based on their statements made in invitation only MySpace chat group was a violation of the FSCA).

Employees’ “oversharing”, through social media, may also give rise to potential lawsuits. The use of an employee’s personal information, obtained from social media sites, may create possible liability if an employment decision can be linked to the employee’s protected class status.

In addition, the employer should be cognizant of legislative movement in this area. A growing number of states, including Colorado, Connecticut, New York and North Dakota have enacted “Lifestyle Laws” prohibiting adverse employment actions based on lawful, off-work conduct. See, e.g., Colo. Rev. Stat. § 24-34-402.5 (2009).

Wednesday, July 27, 2011

What Is The Boundary Between Seduction and Harassment? Do Women Use Their Bodies To Manipulate Men? Duh?

Women in media deliver conflicting messages:  They dress and act like seductresses, but  can enforce the boundaries of chaste religious.  When men see the "tangible invitation" of barred body parts, they respond to what they see and understand as an invitation.  They are then charged with sexual harassment by a woman who feigns any understanding that her dress or behavior could have been interpreted as a license to express sexual appreciation.  Men of course ought to be smart enough to know better:  the sexual harassment laws are enforced with little or no grace to the harasser.  A jury however will have the opportunity to decide if the accusor implicitly invited the alleged "unwanted" attention by her skimpy dress and firtatious demeanor. 

A sexual harassment case does not depend on the attitude or perceptions of the harasser.  That is, that he believes he acted in a non-harassing way is irrelevant, and his subjective perception that the conduct was invited is probably irrelevant as well.  The question is whether a reasonable woman would consider the conduct harassing.  Of course, one element of a harassment case is the subjective perception of the accusor herself:  Did she think and feel that the conduct or language was personally offensive?  This point allows a jury to weigh and consider whether her conduct supports her contention that she really did not want the "offensive" attention she received.,0,2323793,full.story

Donald T. Sterling, owner of Clippers, Shows Less than Sterling Jugment in Stiffing Employee $6.75 Million.

Arbitrator awards Mike Dunleavy $13 million from the Clippers

The Clippers fired Dunleavy, who served as general manager and coach, in 2010 and stopped paying him. He sued for what was owed under his contract.

By Lisa Dillman

7:50 PM PDT, June 10, 2011

An arbitrator on Friday awarded a little more than $13 million to former Clippers' general manager and coach Mike Dunleavy, who the team stopped paying when he was fired as general manager in March of last year.

The ruling was issued about 14 months after Dunleavy filed for binding arbitration.

The amount was for everything Dunleavy was owed under his contract, including past compensation with interest and future accelerated compensation, according to people familiar with the ruling but not authorized to talk about it publicly. The opinion also factored in deferred compensation from Dunleavy's tenure with the Clippers.

"We do not agree with the arbitrator's decision," said Clippers general counsel Robert H. Platt, a partner at Manatt, Phelps & Phillips. "We intend to review the decision carefully and explore the team's various options."

Dunleavy's attorney, Miles Clements, declined to discuss specifics of the decision but said, "It's a good day."

Dunleavy was not available for comment.

He had been owed $6.75 million on the contract, consisting of $1.35 million for the remainder of the 2009-10 season and $5.4 million for the season just completed. The bulk of the remaining money owed consists of deferred compensation.

His case was heard in April before Judicial Arbitration and Mediation Services in Santa Monica. Additional briefs were filed by both sides in May.

Clippers owner Donald T. Sterling has experienced mixed results in litigation this year. He won in March when former team executive Elgin Baylor's wrongful-termination lawsuit against the Clippers was rejected by a Los Angeles jury.

This isn't the first time Sterling has quit paying a former Clippers coach. He even sued Bill Fitch — later settling the suit after a long legal process — asserting that Fitch hadn't been trying to get another job.

That sort of claim was never raised in the Dunleavy case.

Dunleavy's name was in the mix for the Lakers' coaching vacancy, a position recently filled by former Cleveland Cavaliers coach Mike Brown.,0,6022485.story

Tuesday, July 26, 2011

Law School Sued in Class Action for Misrepresenting Stats re Law Jobs Found by Graduates.

San Diego’s Thomas Jefferson School of Law is being sued by a former student in a class action for misrepresenting the likelihood of graduates finding employment as lawyers.  Recently, Thomas Jefferson School of Law defended its position in court by saying that a reasonable student would not have been misled by its representations about graduate employment rates.  More graduates of the school were finding work than were passing the Bar. 

The School’s argument seems to be that any idiot would be able to see that graduates were working at whatever jobs they could get, and that obviously those were not jobs in the law.  Now that is an interesting admission:  the School admitted that consistently lower than 60 percent of its graduates passed the Bar, while as many as 92% found “jobs.”  Pardon me, but there is something pathetic about that defense.  It makes one wonder if they were counting fast good cooks and janitors. 

I see not much has changed in San Diego, or for that matter, the State of California.  I attended the University of San Diego School of Law, graduating in 1977, and passed the Bar that same year.  The economy was sinking in a serious recession.  It was the decade of high double digit inflation and gas shortages. 

What Does A Court Require as Proof of Race Discrimination Where the Employer Always Has a Good Reason to Fire?

I could outline the nuances of the burden of proving discrimination, but that really does not reach the core question:  How do judges, trained as lawyers but untrained as psychologists, construct a burden of proof for bias?  Judges are continuously making rules concerning social issues based on less than ideal information, and certainly without the benefit of being expert in analyzing the information.  Appellate judges do not have the authority to decide the case "outside the record."  That is, they cannot hire expert consultants, nor can they conduct scientifiic, sociological, or psychological research to support their opinions.  That is why they call an appellate court decision "the opinion of the court."

Here is the basic formula adopted by the courts for the proof of race discrimination, and for that matter, discrimination generally: 1) the employee must prove he is in the "protected category" of race, age, gender, disability, national origin, etc. 2) he must prove he suffered "an adverse employment action" such as a demotion or job loss; 3) he must prove there was work for him to do; 4) he must prove he was qualified for the work and that he was performing the work to the honest expectations of his employer; and 5) that other employees not in his "protected category" did not receive the discipline, criticisms, or harassment he received, or that they received advantages and opportunities of employment he did not receive.  

Monday, July 25, 2011

Injured on the Job? Don’t Let Your Employer Get Away With Requiring You to Be Fully Recovered Before Returning to Work.

In 16 years of practicing employment law exclusively, I am still surprised at how Human Resources professionals apply Workers’ Compensation considerations blindly to determine if an employee with medical restrictions is to be allowed back to work. 

There really should be no confusion:  the employer’s duty is to reasonably accommodate the employee’s disability if doing so will allow the employee to perform the essential functions of his job without “undue hardship” to the employer.  Employers however often will apply a different test.  Thinking only in the “workers’ compensation” box of duties and liabilities, they ignore the Americans with Disabilities Act and the California disability accommodation laws. 

Saturday, July 23, 2011

Mosaics from Broken Pieces.

We delight in the beauty of the butterfly, but rarely admit the changes it has gone through to achieve that beauty. - Maya Angelou

Sexually Harassed? How Much Per Squeeze? Get an Idea With This Verdict / Settlement Summary.

Sexual_Harassment_Verdict_&_Settlement_Summary_(10_Years).pdf Download this file

So Is Dylan's Musical Manuevering into the Case Law Due to His Legal Acumen or Nostalgia?

L.A. Times reports Dylan is most cited whimsical source in published federal decisions.  Go figure.  

Friday, July 22, 2011

A Discrimination Lawyer as a White, Middle Aged, Conservative, Republican, Evangelical Orange County CA Male.

Labels are efficient and misleading.  We’re all busy, and so we like to categorize, and move on to the next problem or idea.  I understand that.

I represent persons harmed by their employers because they are not in “categories” their employers prefer.  The irony is that I too experience labeling of a different sort.  I am a civil rights lawyer focusing on workplace discrimination and harassment.  I am repeatedly mislabeled.  First, my colleagues and many of my clients assume I am something of a hippie relic with socialist ideals and a deep distrust of a capitalist economy.  I am often perceived as a starry-eyed idealist and a liberal democrat.  Most assume that if I have a “religion” is it probably something like Buddhist or New Age.  They seem surprised when I dress in a conventional suit, and maintain a short hair cut. 

The labels of course are mistaken.  If I were to use conventional labeling, overall I’d say “white, middle aged, conservative, Republican, free enterprise, evangelical male.”  My occupation and my self-assigned labels initially produce a strange silence with those who know me.  I attribute that to momentary cognitive dissonance.  Once my advocacy skills kick in, they see that I have somehow transcended the “silo mentality” of labeling.

A Plea for Simple Language: Specialization Does Not Make You "Special."

Lawyers and Theologians have this in common:  sacred words.  We "experts" of the civil and religious law protect these words because we have the exclusive knowledge to decipher their meanings.  For us, these "terms of art" are rich with special meaning.  We can use them very effectively among ourselves.  

Wednesday, July 20, 2011

Of Chairs, Politics, & Ego: Lessons Learned as Chair of the "Labor & Employment Law" Section.

I am Chair of the Orange County Bar Association {OCBA] Labor and Employment Law Section, one of about 12 sections in the Association.  I am also a sole practitioner.  Those two statements define the issue:  Can a man who is a committee of one learn to work with a large professional organization with a dedicated administrative staff, as well as the strong but tender personalities of the Section itself?  The answer is "Yes" and he can even enjoy it.  No one is more surprised than I am.  

I am basically politically incorrect and very transparent in my views.   Still, I think being so can be done with grace and kindness, and a certain civility.  I've been given numerous opportunities to practice these last 18 months, with 6 months to go.  Here are 3 of the many things I've learned:

1.  Professionals are the best possible volunteers.  They are smart, punctual, and committed.  They generally not only do what they say they will do, on time, but they take on responsibility readily.  I enjoy working with professionals.

2.  When someone who is capable steps up with an idea and readiness to execute it, affirm and support them, even if they didn't first kiss your butt for permission.  Be grateful they are advancing the cause of the organization.  It's not about you or you looking good, or being in control.  It certainly isn't about you getting the limelight.  If that's your goal, trouble and discord will surely follow.  

3.  Leadership is more about saying "yes" than saying "no."  Anyone can say no.  If an idea has potential flaws, say "yes, but" or "yes, and" but do not reflexively say "no."  

I haven't been in politics, but like you I watch the shenanigans in Washington.  People "position" and "posture" and "threaten" in ways that don't reflect their real positions, but that produce acrimony.  These are not just innocent negotiation tactics.  Cumulatively, they erode trust, and produce stalemate.  Our elected officials are basically decent people caught up in the routines of abrasive discord.  That is probably why most deals get cut in back rooms out of the spotlight so that the participants are less likely to grandstand.  If I could communicate a lesson to Congress from my insignificant little place as Chair of my organization, it would be:  less ego, less turf fighting, and more gratitude and recognition for the talents and contributions of all the participants, yes, even those of the opposition.  Start focusing on common goals and less on differences.  

Tuesday, July 19, 2011

Thou Shalt Not Lie, but You May Remember Differently.

After 34 years of law practice, much of it centered on witness testimony, the nagging question recurs:  Who is lying?  Often this question arises when two parties to the same event testify quite differently to what occurred.  The sharper and more divergent the difference, the more lying appears to be in play for one or both. 

I have heard of “listening” and “communication” that there are multiple versions of the “truth” in human perception: 

a)       What happened;

b)      What I think happened;

c)       What you think happened;

d)      What I think about what you state happened;

e)      What you think about what I stated happened.

Consider for a moment that a witness’s personal experience and “way of seeing the world” is so strong (and you could be the witness) that you quite literally do not see some things occurring in an event, while seeing other things that did not occur at all.  We all know of the pop psychology tests that confirm this tendency.  Years ago in Business School I recall the test of the person who suddenly bursts into a class room; commits some act, and quickly leaves.  The students are asked to report exactly what they saw.  The versions are different depending on multiple factors, including race and age.  We see and we remember what we expect to see.  We are pre-biased to see certain features of an event, and we filter out or filter in what we see and remember to conform to the bias.  Everyone does that of course, except you (and me). 

As a discrimination lawyer, I have the bold and awesome responsibility of proving that someone was motivated by prejudice based on race, age, disability, use of medical leave, pregnancy, religion, national origin or race.  I ask you:  who thinks of themselves that way?  Who, other than a skin head, goes to work proudly proclaiming to himself or others that he is biased?  The fact is that we view ourselves as open minded and fair to all people.  The fact also is that not one of us is completely free of bias.  To confirm that truth for yourself, take some free bias disclosure tests at

Monday, July 18, 2011

Errata about the New Flat Economy, and Ancient Israelites with Nuclear Bombs.

Fighting the Discovery Blues: Obtaining Discovery of Facts Proving Discrimination: Caution--This Is Not Light Reading.

In the battle for proof, discrimination cases require aggressive employee discovery.   The arsenal available to an employee is a combination of facts and expert opinion.  The experts I rely upon are statisticians and industrial psychologists.  Both require a good record of admissible evidence on which to base their opinions.  Both should be consulted early in the discovery plan for guidance on the kinds of information they want/need to base their opinions. 

But it is not enough for the employee’s attorney to know what to get.  He has to use the correct procedural methods under the California Code of Civil Procedure to get it.  This article focuses on the lessons taught by the Court of Appeal in the case of Life Technologies Corporation v. Joyce (July 18, 2011) 2011 DJDAR 10709.  [Hereinafter “Life Technologies”]. 

Mr.Joyce sued Life Technologies for age discrimination, and for retaliation because of his complaints of discrimination.  He sent the employer a “special interrogatory” asking for the names of all employees terminated during a two year period; their department; their dates of termination; the age of each at termination; the reason for termination; whether they were offered severance; a description of the severance benefits; a detailed statement of the reasons if severance was not offered; the names; addresses, and phone numbers of all employees not included in the RIF; and which of those remaining after the RIF were former employees of the acquiring company or the acquired company.

The employer resisted producing this information on grounds that it violated third party employees’ privacy rights.  The Court of Appeal concluded that while the information was relevant to the issue of age discrimination, in balance, the Trial Court did not do enough to protect the privacy interests of the third party employees.  The Court directed the Trial Court to modify its order compelling discovery to include safeguards, including notice to the affected third party employees of their right to object to discovery of their personal information, and notifying them of a simple procedure for their objections to be raised and heard before the court. 

The following is my list of “lessons learned” for the employee attorney in fighting the Discovery Blues:

1.        Do not let the Defense use the argument that information about termination of third party employees in similar circumstance is not relevant nor likely to lead to relevant or admissible evidence because the particular case is not a “class action.”  Life Technologies held information about other employees is relevant to an individual case of age discrimination because it shows a “pattern of discrimination” that may have included the individual suing.  It is information also relevant to “punitive damages” because it shows an ongoing practice and intent.   The Life Technologies case relied on law that a RIF discriminatorily applied is all that must be alleged to trigger the opportunity to prove statistical disparity between the younger group and the older group in the lay-off. 

2.       Anytime you seek third party employee information to show “a pattern” of discrimination, be prepared to address the privacy rights of the third party employees.  The lesson learned in Life Technologies is that protections of those privacy interest must be include by stipulation of the parties, or in the body of the Court’s order granting limited discovery (or both if obtaining a “stipulated order”.)

3.       The key privacy rights case for this stipulation and order is Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371-372. [Hereinafter “Pioneer Electronics”].    Courts ruling on third party employee discovery (especially information out of their personnel files) must cite their consideration of this case, and that the court has “balanced” the individual’s interest of privacy against the “public policy” supporting the proof of discrimination. 

Friday, July 15, 2011

Digital v. Electronic Signatures: Both Are legal, But only 1 is Secure. Go Digital. Save Paper.

An electronic signature is defined as an electronic sound (e.g., audio files of a person's voice), symbol (e.g., a graphic representation of a person in JPEG file), or process (e.g., a procedure that conveys assent), attached to or logically associated with a record, and executed or adopted by a person with the intent to sign the record. An electronic signature is easy to implement, since something as simple as a typed name can serve as one. Consequently, e-signatures are very problematic with regards to maintaining integrity and security, as there is nothing to prevent one individual from typing another individual's name. Due to this reality, an electronic signature that does not incorporate additional measures of security (similar to a digital signature, described above) are considered an insecure way of signing documentation.

A Digital signature (standard electronic signature) takes the concept of traditional paper-based signing and turn it into an electronic "fingerprint.” This "fingerprint,” or coded message, is unique to both the document and the signer and binds both of them together. The digital signature ensures the authenticity of the signer. Any changes made to the document after it is signed invalidate the signature, thereby protecting against signature forgery and information tampering. E-signatures help organizations sustain signer authenticity, accountability, data integrity and non-repudiation of electronic documents and forms.

Legally, a Signature Is Any Mark Intended As An Identification & Assent: So Digitize.

Digitize Your Signature and Email Instead of Fax

The biggest source of paper in my work life is contracts and client agreements that need to be signed and returned. While people generally say "sign this and fax it back to us," you can do it without getting paper involved. First, create a digital version of your signaturewith a transparent background. Then, get the documents via email, and email (or eFax) them back with your signature added to them. (While there are lots of different kinds of electronic and digital signatures, this type will work for common consumer scenarios. It won't work if you need something notarized or to appear with an original signature.)

Thursday, July 14, 2011

Who is the Employer in this Joint? Joint Employers Are Jointly Liable: Temp Employees Have Two Legal Employers.

Temp Agencies are common in the current economic environment as Companies are not ready to hire full time.  The result is a temp employee may have two employers to chase if one of them violates his or her employee rights.  

The legal theory is known as the "Joint Employer Doctrine" and it holds that a temporary employer and a "client" employer will both be liable under the anti-discrimination and anti-retaliation laws.  The reality is that the "client" employer provides the location, equipment, and supervision where the work is done.  The "client" also has substantial influence over who is assigned and who remains as a "temporary employee" even if not technically hiring or firing the employee.   This degree of control makes the "client" employer a co-employer even though the temp agency selects, assigns, pays, and provides benefits for the employee.  The result is that the "client employer" saves on administrative and tax costs, acquires more flexibility in controlling the size of its work force, but really gains no advantage in being immune from suit for discrimination or retaliation.  

Here is a list of reasons for employees to be glad to have two employers:

1)  The FMLA [Family Medical Leave Act} requires an employer to have 50 or more employees.  The two employers together may have the requisite total number.

2)  Both must comply with the California and Federal labor laws, concerning rest breaks and meal breaks, and compliance with regulations included within the Private Attorney General Act [PAGA], such as seating for retail workers.  

3)  The employee may trigger access to Employment Practices Liability Insurance if one of the employers is covered.

4)  Arbitration may not be required if both employers have not signed an arbitration agreement taking the case away from a Jury.  

5)  The Leasing Company will likely have an indemnity contract requiring it to pay all liability, costs, and fees incurred by the "client" company, giving it a greater incentive to settle.  

6)  If the "Temp" employee in fact has been working for the "client" employee for many months, but not receiving the same benefits as "full time, permanent" employees, federal law [ERISA] has been interpreted by the courts to require the same benefits to be provided to the "temps" or "leased" employees.  

7)  If either employer has failed to provide and enforce anti-harassment and anti-discrimination policies, the other employer will be jointly liable for the failure.  

8)  If one of the employers is liable in punitive damages, the other may be jointly liable to pay the full measure of damages. 

Bottom line: "Leased" or "temp agency" employees have many points of leverage to bring when suing for retaliation, harassment, or discrimination.  

California State Courts Can Still Invalidate Arbitration Agreements That Are Unconscionable Even After U.S. Supreme Court Case.

A recent decision California Court of Appeal case  {Brown v. Ralphs Grocery Co.} provides employee rights attorneys legal authority to argue that California Court protections against one-sided arbitration agreements are still in place to protect the little guy. 

The U.S. and the California Supreme Courts are legally "face to face" on the issue of enforceability of Arbitration Agreements.  In April, 2011, The U.S. Supreme Court decided in AT&T Mobility v. Concepcion ["Concepcion"] that the Federal Arbitration Act [FAA] preempted State law that prevented the use of Arbitration Agreements to obtain waivers of class action suits against companies.  However, the Court did not directly hold that a State cannot, under its own principles of contract law, find some types of Arbitration Agreements so overbearing and so unfair as to be unconscionable.  

The California Supreme Court decision requiring basic fairness in arbitration agreements is:  Gentry v. Superior Court (2007) 42 Cal.4th 443.  On July 12, 2011, a California Court of Appeal held that the Concepcion case did not invalidate the powers of California courts to find arbitration agreements unenforceable in particular circumstances.  Brown v. Ralphs Grocery Co. 2011 DJDAR 10523.  Specifically, the Court held that a civil action brought under California's Private Attorney General's Act [PAGA] was a species of "governmental action" for the general good, and that such an action was the legal equivalent of "governmental action."  A private arbitration agreement cannot restrict governmental action.  



Stop "Looking for a Job" and Start Inventing Yourself to Produce New Opportunities



The New York Times
July 12, 2011

The Start-Up of You


The rise in the unemployment rate last month to 9.2 percent has Democrats and Republicans reliably falling back on their respective cure-alls. It is evidence for liberals that we need more stimulus and for conservatives that we need more tax cuts to increase demand. I am sure there is truth in both, but I do not believe they are the whole story. I think something else, something new — something that will require our kids not so much to find their next job as to invent their next job — is also influencing today’s job market more than people realize.

Wednesday, July 13, 2011

In Law & in Life: Variations to Basic Themes Add Color

I chose this because the color and energy match my Posterous website.  

These Are Trying Times for CA Trial Courts: $1.8 Billion Budget Cut in 2012 and $1.2 Billion Cut in 2013: The Statewide "Court Case Management System" Computerization Project is "On Hold.".

Judges, especially the presiding judges of individual county courts, are scrambling:  Where will the mandated cuts be made?  Litigants can be justifiably concerned:  reduced staff means a backlog of cases being processed, which means fewer courtroom hours are available for the competing cases that are presented for trial.  Civil cases in particular will be pushed back as criminal cases take precedence.  

Just Bought My First Kindle Single: "Blood on the Tracks"

Singles with 'one click' online:  it feels like literary "speed dating."  Change is usually good, simply because it moves the drama of life forward.  Will my romance with reading deepen or become a dalliance in this new 99 cent "singles" community?  

"Blood on the Tracks" is a historical narrative of the labor movement in 1877 as rail workers pushed back against the financial titans that moved America west.  The Kindle reader comments were very positive.  Now, excuse me, as I get to know my new single.  

Tuesday, July 12, 2011

Good News In Bad Times: Employers May Treat Employees Better for Fear of Easier Unionization

I recently said to someone dear to me:  "If a man and a woman cannot be at peace, how can nations?"  I think the principle applies to in the workplace:  if decency and justice do not prevail, then how can there be peace?  Unions are the result of disparate bargaining power in which one of the parties with most of the power, employers, act indecently.  The result is a gathering of employees who make "war" until a new equilibrium is reached.  But we know from contentious labor-management relations, the peace is fragile, and perhaps never exists at all.

New National Labor Relations Act ["NLRA"] regulations are likely to be approved soon that will expedite the process by which a Union can be formed by disgruntled employees.   Currently, the date of the unionization election takes place 4 months from the date of the filing of the Petition.  The new rules will shorten that delay to no more than 3 weeks.

Also, under the new rules, a hearing on the employer's challenge to the Petition must take place within just 7 days of the date the employer is notified of the Petition.    Employers are complaining that 7 days doesn't provide them enough time to gather needed evidence to contest a petition.  Employees and the NLRB contend the change is needed to prevent litigation delay tactics by employers based on frivolous grounds.  

Appointment of new NLRB members is confirmed by the Senate, now controlled by the Republicans.  There are currently two nominations pending confirmation.  There are 4 members of the Board, three of whom are currently pro-labor.  The "Public Comment" phase of the regulation adoption process ends in September, 2011.  

So, what may be an unofficial outcome of this change, if it occurs?  The increased threat of unionization may result in Management Attorneys and H.R. Consultants urging their clients to treat employees more equitably.  Employers may set voluntary procedures in place to allow employees to obtain fair resolution of their grievances.  Abusive managers may be disciplined or fired if they are creating mass defections.  That would be a welcome waft of fresh air in this stagnant economy where fewer workers are working longer and harder in more tense work environments, and frankly taking more crap for fear of losing their jobs.  Smart management sided lawyers will urge their employer clients with the advice that the best defense against a Union is fair and decent treatment of employees.  



Group Think May be a Supreme Court Tradition: the Flawed System of Selecting Law Clerks

The Supreme Court justices farm their law clerks from the Circuit Courts.  That is, a law student from an exceptional law school with stellar credentials first lands an appointment to one of the Circuit Justices.  He or she is selected however based on another consideration:  his politics.  Oh, it is never so direct, I suppose, but viewpoints and attitudes are culled from careful screening and interviewing.  The justices, who so disclaim political considerations during their own "confirmation hearings" before the Senate Judiciary Committee, are looking for clerks of like minded "liberal" or "conservative" bias.  How do they find them?

For Supreme Court justices, the method is to rely upon the recommendation of a trusted "liberal" or "conservative" Circuit Court justice who has had the opportunity to observe and evaluate the political preferences of his or her clerk over the last year or so.  The pattern follows the motive:  conservative Ninth Circuit justices recently recommended apparently conservative minded law clerks for plum appointments to their corresponding conservative Supreme Court justices.  The liberal members of the Ninth Circuit Court of Appeals recently did the same.  It is likely a pattern for all the Circuits that operate as "farm systems" from which 39 clerks are selected each year for the court:  4 for each Justice, and one each for 3 retired justices.  

One of the evidences of "group think" is to filter out people who think differently than you.  I suspect the U.S. Supreme Court, like any organization, is vulnerable to the "all too human" practice.

While there are a few exceptions, Justices of the Supreme Court mirror the politics of their appointing Presidents.   Social justice issues often produce split decisions reflecting those political biases.  Essentially, there is a "conservative" and a "liberal" block of appointees on the bench, and the split currently is often 5-4 for the conservatives.  

There is nothing nefarious in this whole process, but I still find it disturbing.  What could be more boring than to have a bright mind reflect back to you your usual political outlook on a social justice issue such as access to abortion,  the holding of a religious demonstration in proximity to a serviceman's funeral, or the presence of a religious symbol on public property?  How exciting can it be to listen to your clerk exalt the virtues of free enterprise and employer discretion in deciding whether to grant class action status to over a million women seeking gender discrimination damages against Wal-Mart?  I would think disagreement and sharpened differences on the issues would generate more insights and better arguments, and quite possibly more balanced decisions.  

When Justices of the Supreme Court state their respective positions in the pre-opinion phase, they usually do so by dry exchange of draft opinions that become the basis of argument and counter-argument, until something is hammered out as a "majority opinion" authored by one of the majority members.  In contrast to this sterile movement of paper from chamber to chamber, a Justice's lively dialogue with his or her law clerk is the best opportunity for a Justice to examine the case from multiple views.  Sadly, to hear an echo of one's own thought from an ideological twin produces little that is new or innovative.  What harm can come from a conservative jurist engaging in a clash of views with a liberal clerk?  Is either so weak minded as to be unduly influenced by the other?  On the other hand, the harm is obvious when an ill-considered viewpoint goes unchallenged, or other outcomes of a decision are not vigorously explored.  

In summary, the current law clerk selection process produces a "tribal" comfort but not the rich intellectual exchange that would likely produce better decisions.  





Monday, July 11, 2011

Of Sex, Death and Danger: the Value of a Cerebral Cortex.

Our brains [or more exactly our reptilian core brain stem] always ask the following questions:

Can I eat it? Can I have sex with it? Will it kill me?"


NFL Labor Dispute: Punt Me a Piece of that $9 Billion Dollar Pie!

The labor game plan has the look of a bungled play called in the huddle by start quarterback Tom Brady.  The call went like this:  “de-certify” the players union.  That will free us from the collective bargaining and arbitration process, and allow us to sue the owners in federal court.  Why would we want to give up our union status to become a “trade association?”  The idea was to get a better outcome from a federal court on how to divide the $9 billion dollar annual revenue generated by ticket and advertising sales. 
The owners’ defensive response was to “lock-out” the players, that is, to shut down all negotiations, and end any talks with individual players regarding trades or salaries.  The players’ next play out of the huddle on second down was to go to federal court for an injunction requiring the owners to lift the “lock-out.”  They also went for the long pass:  they filed an antitrust suit, claiming that the lock-out and salary cap were forms of price fixing.  At the District Court level, the player’s appeared to have obtained another first down when their injunction request was granted.
The referee called the play back on appeal to the Eighth Circuit.  The Court ruled the trial court had stepped out of bounds in granting the injunction.  The violation was a little used Depression era law known  as the 1932 Norris-LaGuardia Act.  Basically, the law keeps the federal courts out of Labor Disputes.  The “union” turned “trade association argued the law didn’t apply to it once it “decertified” itself as a union.  The Eighth Circuit held the essential dispute was still a “labor dispute” covered by the “hands off” statutory language.  Sounds like a “face mask” violation to me. 
So what will keep the parties talking now that there is no compulsory good faith negotiation requirement under the federal collective bargaining laws?  How about the loss of all $9 billion for the 2011-12 season?   Will this madness for a larger piece of the pie leave both sides with pie in their face?  It’s not like you can just replace a $9 billion pie at your local pie shop.  The situation is reminiscent of the old 1960’s song “MacArthur Park”—“I’ll never have that recipe again.” 

3 PTA Moms Charged with Ponzi Scheme

The moms used their PTA status to add credibiity to their two year scheme.  They claimed they had the exclusive right to distribute dairy products to Disneyland.  One of the three was arrested and convicted on charges of an earlier similar scam shortly after the three started scam #2.  Total involved:  $14 million.  All investments were required to be delivered in cash. 

None of these investors checked with the local dairy or Disneyland to confirm the distributorship.  No one asked to see the inventory of products, or the supporting agreements. No one aske to se see records of gross receipts from sales.   No one questioned why only cash would be accepted.  The amounts were between $5,000 to $208,000 and were made by 40 investors, some of whom drew from their life savings, maxed out credit cards, and took out second mortgages. 

Having met a few PTA moms myself many years ago when I served at my daughter's middle school as the lone male PTA member, I am probably less surprised than most. 

LIfe Outside the Box: Mental Blocks to Creativity.


Do You Recognize These 10 Mental Blocks to Creative Thinking?

There is no spoon

Whether you’re trying to solve a tough problem, start a business, get attention for that business or write an interesting article, creative thinking is crucial. The process boils down to changing your perspective and seeing things differently than you currently do.

People like to call this “thinking outside of the box,” which is the wrong way to look at it. Just like Neo needed to understand that “there is no spoon” in the film The Matrix, you need to realize “there is no box” to step outside of.

 You create your own imaginary boxes simply by living life and accepting certain things as “real” when they are just as illusory as the beliefs of a paranoid delusional. The difference is, enough people agree that certain man-made concepts are “real,” so you’re viewed as “normal.” This is good for society overall, but it’s that sort of unquestioning consensus that inhibits your natural creative abilities.

So, rather than looking for ways to inspire creativity, you should just realize the truth. You’re already capable of creative thinking at all times, but you have to strip away the imaginary mental blocks (or boxes) that you’ve picked up along the way to wherever you are today.

I like to keep this list of 10 common ways we suppress our natural creative abilities nearby when I get stuck. It helps me realize that the barriers to a good idea are truly all in my head.


1. Trying to Find the “Right” Answer

One of the worst aspects of formal education is the focus on the correct answer to a particular question or problem. While this approach helps us function in society, it hurts creative thinking because real-life issues are ambiguous. There’s often more than one “correct” answer, and the second one you come up with might be better than the first.

Many of the following mental blocks can be turned around to reveal ways to find more than one answer to any given problem. Try reframing the issue in several different ways in order to prompt different answers, and embrace answering inherently ambiguous questions in several different ways.

2. Logical Thinking

Not only is real life ambiguous, it’s often illogical to the point of madness. While critical thinking skills based on logic are one of our main strengths in evaluating the feasibility of a creative idea, it’s often the enemy of truly innovative thoughts in the first place.

One of the best ways to escape the constraints of your own logical mind is to think metaphorically. One of the reasons why metaphors work so well in communications is that we accept them as true without thinking about it. When you realize that “truth” is often symbolic, you’ll often find that you are actually free to come up with alternatives.

3. Following Rules

One way to view creative thinking is to look at it as a destructive force. You’re tearing away the often arbitrary rules that others have set for you, and asking either “why” or “why not” whenever confronted with the way “everyone” does things.

This is easier said than done, since people will often defend the rules they follow even in the face of evidence that the rule doesn’t work. People love to celebrate rebels like Richard Branson, but few seem brave enough to emulate him. Quit worshipping rule breakers and start breaking some rules.

4. Being Practical

Like logic, practicality is hugely important when it comes to execution, but often stifles innovative ideas before they can properly blossom. Don’t allow the editor into the same room with your inner artist.

Try not to evaluate the actual feasibility of an approach until you’ve allowed it to exist on its own for a bit. Spend time asking “what if” as often as possible, and simply allow your imagination to go where it wants. You might just find yourself discovering a crazy idea that’s so insanely practical that no one’s thought of it before.

5. Play is Not Work

Allowing your mind to be at play is perhaps the most effective way to stimulate creative thinking, and yet many people disassociate play from work. These days, the people who can come up with great ideas and solutions are the most economically rewarded, while worker bees are often employed for the benefit of the creative thinkers.

You’ve heard the expression “work hard and play hard.” All you have to realize is that they’re the same thing to a creative thinker.

6. That’s Not My Job

In an era of hyper-specialization, it’s those who happily explore completely unrelated areas of life and knowledge who best see that everything is related. This goes back to what ad man Carl Ally said about creative persons—they want to be know-it-alls.

Sure, you’ve got to know the specialized stuff in your field, but if you view yourself as an explorer rather than a highly-specialized cog in the machine, you’ll run circles around the technical master in the success department.

7. Being a “Serious” Person

Most of what keeps us civilized boils down to conformity, consistency, shared values, and yes, thinking about things the same way everyone else does. There’s nothing wrong with that necessarily, but if you can mentally accept that it’s actually nothing more than groupthink that helps a society function, you can then give yourself permission to turn everything that’s accepted upside down and shake out the illusions.

Leaders from Egyptian pharaohs to Chinese emperors and European royalty have consulted with fools, or court jesters, when faced with tough problems. The persona of the fool allowed the truth to be told, without the usual ramifications that might come with speaking blasphemy or challenging ingrained social conventions. Give yourself permission to be a fool and see things for what they really are.

8. Avoiding Ambiguity

We rationally realize that most every situation is ambiguous to some degree. And although dividing complex situations into black and white boxes can lead to disaster, we still do it. It’s an innate characteristic of human psychology to desire certainty, but it’s the creative thinker who rejects the false comfort of clarity when it’s not really appropriate.

Ambiguity is your friend if you’re looking to innovate. The fact that most people are uncomfortable exploring uncertainty gives you an advantage, as long as you can embrace ambiguity rather than run from it.

9. Being Wrong is Bad

We hate being wrong, and yet mistakes often teach us the most. Thomas Edison was wrong 1,800 times before getting the light bulb right. Edison’s greatest strength was that he was not afraid to be wrong.

The best thing we do is learn from our mistakes, but we have to free ourselves to make mistakes in the first place. Just try out your ideas and see what happens, take what you learn, and try something else. Ask yourself, what’s the worst that can happen if I’m wrong? You’ll often find the benefits of being wrong greatly outweigh the ramifications.

10. I’m Not Creative

Denying your own creativity is like denying you’re a human being. We’re all limitlessly creative, but only to the extent that we realize that we create our own limits with the way we think. If you tell yourself you’re not creative, it becomes true. Stop that.

In that sense, awakening your own creativity is similar to the path reported by those who seek spiritual enlightenment. You’re already enlightened, just like you’re already creative, but you have to strip away all of your delusions before you can see it. Acknowledge that you’re inherently creative, and then start tearing down the other barriers you’ve allowed to be created in your mind.

About the Author: Brian Clark is founder of Copyblogger and CEO of Copyblogger Media. Get more from Brian on Twitter.

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Sunday, July 10, 2011

Women at Wal-Mart: 65% of hourly jobs but 14% of managers; $1,100 less per year if hourly, $14,500 less if salaried.

As taken from Bloomberg:

"Here are some of the statistics that the court dismissed as having fallen “well short” of showing that managers were exercising pay and promotion discretion in a common way, which the women needed to prove to proceed as a class. When the suit was filed, women filled 65 percent of the hourly jobs, but only 14 percent of store manager positions. It took 4.4 years for the average woman to advance to assistant manager, while men got there in 2.9 years. Among those in hourly jobs, men made $1,100 a year more than women in similar positions. Among salaried managers, men out-earned women by $14,500 a year."

Social Justice and Literary Pleasures

Emile Zola wrote of a miners' strike in France in the 1860s.  Victor Hugo wrote Les Miserables, and the distorted idea of justice without mercy.  Harriet Beecher Stowe wrote of the cruel inhumanity of slavery in America in the 1850s.  These are books of weight and consequence, but also good reads for the summer.  Yeah, I know they sound like Spark Note assignments, but try one out.  Did Zola contribute to the eventual shift to a socialist government in France a hundred years later?  Did Hugo change our justice system to take account of personal traumas during the sentencing of convicted criminals?  Did Harriet Beecher Stowe accelerate the onset of the Civil War?  

NY Times Book Review--Summer Reads

Saturday, July 09, 2011

Like Freudian Slips, Pink Slips Leave Traces.

It’s hard not to like Joe Dunn.  He’s bright, he’s charming, and he’s determined.  I can see why he was elected to the State Senate several times.


Last year, I asked Joe Dunn to speak on the subject of gender bias in the legal profession.  He accepted and engaged our large audience of employment lawyers in an educational and entertaining way. He was for a time Executive Director of the California Medical Association.  He’s been an active supporter of the new UCI School of Law.  He recently became the Executive Director of the California State Bar.  You get the feeling this guy is well connected.


Joe Dunn just fired four top level managers in the State Bar’s prosecution unit.  The ages of the dismissed:  55, 57, 57, 58.  Each manager had been with the office 20 to 25 years.  In a few weeks we will know the ages of their replacements. You know where I’m going with this don’t you? After all, I’m an “employee rights attorney.”  I’m trained to see things like this. 



The question is whether the shape emerging from the mist is indeed age discrimination, or merely accident.   “Ageism” is that figure in the mist, a boneless shape that requires the aggressive search for proof to give it flesh.  The actual result is often more like a wax figure than a living outcome.  The reason is that discriminators are unaware of their own biases.  It is as if a werewolf of the unconscious takes over, and the conscious self awakens to suspect someone, maybe oneself, did all that harm. The possibility is too much to accept.


Like Freudian slips, pink slips leave traces.  Joe Dunn may have left such a trace.  An “anonymous source” in the prosecutors’ office said the four were let go because they could not adapt to the “radical change” required by Dunn to remove the backlog of discipline cases.  Promises, goals, and deadlines, all require one added element:  resources.  Managers without resources who insist on maintaining the same level of quality inevitably must fall short of the impossible.  The State Bar has not allocated extra needed resources to meet Joe Dunn’s goal.  “So how do you do it?” asks a rational manager.  By “adapting to radical change” seems to be the answer.  Is there a subtext here?  “And you’re too old and fixed in your ways to adapt.” 


Life remains more interesting than fiction.  We use fiction to simplify and understand life.  We know the outcome and the motives in fiction, if we will but persist to the end of the story.  In life, we may never know.  Did Joe Dunn follow an unconscious age bias in firing his four top managers?  I do not know.  Is it reasonably possible?  Yes. Will there be a lawsuit?  I think it likely, unless the office paid whooping big severances and obtained releases of liability in exchange.  Now that would be another dilemma for Joe Dunn, given the limited resources of the office.  


Joe Dunn is a quality citizen, who has performed exceptional public service, and is well liked and respected.  He is also human, and with the rest of us, is more driven by unconscious forces than conscious ones. If bias motivated Joe Dunn, I’m convinced it operated out of his personal “blind spot.”  Dunn has been an advocate of worker rights throughout his career.  He also has been executive director of two enormous professional organizations.  His affiliations, like his motivations, are varied and complex. 


To test the presence of unconscious bias in your relational choices, take the free online testing offered through Harvard University.  You may be surprised by the results, as I was.  My results indicated I have a strong preference for white, conservative, middle aged people.  The result exposed a personal “blind spot” that challenged my “ideal” self-image.  The results hurt, but they began a process of challenging my decisions to expose possible bias. 


Thursday, July 07, 2011

Your Rights if You’re Fired Because Seen As Associating With Another Unwanted Employee.

Suppose a husband and wife work at the same company, in different departments.  Suppose the wife makes a sexual harassment complaint at work.  Suppose further both she and her husband get fired not long after that.  She claims she was fired in retaliation because of her complaint.  He claims he was fired because he was married to her.  What are their rights? 


In matters of pleading a case, careful legal research is critical.  Why?  Because the pleading must conform to the law.   If the facts alleged do not include the critical elements of a recognized “cause of action” found in law, the case will be dismissed.  Folks, we lawyers can’t just make these things up.


Wednesday, July 06, 2011

Legal Writing-To Thine Audience Be True.

Lincoln responded to a charge of being two-faced by asking, “If I were two faced, would I be wearing this one?”  His point is a good one for legal writing as well.  Good writing, good communication generally, and legal writing specifically have these characteristics:

1)    Before you write, imagine yourself to be the judge.  Visualize yourself in her world, with the demands of her day, and her case load.  Experience the time pressures.  Feel the urgency of making decisions, and moving on to the next matter.  Grasp what it is like to manage a large calendar of hundreds of cases day in, and day out.  Most importantly, feel the impatience when you are wading through a complex matter that is muddied by sloppy, vague, and disorganized writing.  Hear yourself screaming:  “What is it they want? Why should I grant it to them?”

Tuesday, July 05, 2011

Building Environments of Collaboration, Curiosity, Creativity in Law Firms

The traditional law firm of 30 years ago was book intensive with a large space contributed to accommodate all those volumes.  It was also an area where lawyers would have serendipitous encounters that sparked case discussions and produced fertile collaboration.  

That model is dead in the digitized age of online research libraries.  Failure to recreate collaborative physical spaces can be disastrous for law firms.  The smart firms are pulling attorneys out of the isolation of their offices where they otherwise would be stuck to their computers.  While virtual interaction could still take place, the best creativity most often occurs face to face.  Architects and space planners can make that happen, if the firm makes that approach a priority.  

Centralized common areas that make spontaneous interactions are built into the floor plan.  Comfortable lounges reduce the rigid, linear thinking of the spartan enclosed office. I think law firms would be wise to use the free flowing, creative brainstorming sessions of the organizations they represent, especially high tech firms that depend on creative talent and innovation for success.  Leaving creativity solely to chance encounters in common spaces may not be enough to produce the best thinking and strategy.  A hospitable space creates an opportunity, but formalizing collaboration sessions causes the opportunity to be seized.  

Finally, the best thinking in an organization takes place when the participants value creativity, collaboration and curiosity.  If those attitudes are practiced by top management, the whole environment can come alive.  

Sunday, July 03, 2011

Seduced and Used: Social Media Info Feeding Frenzy

We and the Social Media Giants are in this strange love lock:  we are seduced and used.  We know it, and we like it.  We keep giving away our personal information.

  What are the privacy limits of what we give them?  How badly can we be used as the price we pay?  

  Not to be arcane, but the answer is found in the First Amendment, and decisions that concern “commercial free speech.”  The U.S. Supreme Court just decided how badly you can be used.  

  The legal issue focused on pharmacies that sold personal prescription data to marketing companies for drug manufacturers.  The data was sold for commercial purposes obviously.  That is somewhat important to the analysis.  Free speech rights tend to be more protected for political or socially significant speech.  

  Bottom line: The Supreme Court conservative majority, together with the moderate center Justice Kennedy) held that state data protection measures against the commercial use of personal information is unconstitutional.  True, less restrictive statutes might survive, but that remains to be seen.

  Implications: Facebook, LinkedIn, Twitter, and whatever social media giant may yet arise, will continue to feed gluttonously on your personal information, and we will continue to feed them.  

  Sorrell v. IMS Health, 10-779 (June, 2011)

Saturday, July 02, 2011

Mediation and Litigation: Very Different Skill Sets.

I was trained in the art of dysfunction.  In law school, we built our knowledge base around the word "versus" as in Palsgraff v. Long Island Railroad or Roe v. Wade.  There were clashes of will, obstacle courses of criminal or civil procedure, battles of law, and in the end, an order that decided a winner and a loser.  The whole system from beginning to end is an exercise in admitting no wrong, crafting the best spin, accusing the adversary of causing injury and injustice, or seeking to cast blame without evidence.  Can you imagine a law professor or a judge admonishing a young lawyer or lawyer to be to "listen with his or her heart"?  The irony of the practice of law is that most of it is built around negotiation.  Negotiation requires trust and clarity.  Litigation requires ammunition and the readiness to use it.  It operates best based on surprise and overwhelming force.  Hardly a trust builder.  

I graduated from law school 34 years ago.  The advent of "Alternative Dispute Resolution" or "ADR" was not then part of the legal landscape.  There were no classes in Negotiation or ADR.  Now, ADR is a specialization and trained mediators often study for a year or more to become certified after acquiring their law degrees and practicing for a number of years.  Mediation works best when it operates as a "reality check" for the parties, and is delivered by an expert deal broker with no skin in the game, but who knows the world of litigation and the unpredictabilities of the courtroom.  But more than that, is the ability of the mediator to bring a different emotional and psychological temperature to the history of the case.  Parties who are being insulted and attacked are notoriously bad at listening or wanting to make concessions.  How reality is communicated is as important as the reality itself. To be told clearly without malice or personal agenda that you have no case [or no defense] is truly the mediator's art.  

Employee Rights Attorney
Frank Pray
5160 Campus Drive
Newport Beach CA 92660
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M  949.637.3360

Entering the Client's World: Translating the Industry to Outsiders.

I routinely enter the worlds of my clients.  While there, I encounter processes, names, lingo, titles, abbreviations and codes unique to their industries.  I must know this world if I am to “translate” it to others not familiar with it.  The information is relevant to understanding what happened and why people acted as they did.  The knowledge is especially important when showing that the reason given for termination is trumped up to hide an illegal motive.  

I have an advantage in not being intimately familiar with the industry.  I am like the arbitrator or jury first hearing the case.  I therefore understand the importance of taking industry terms and practices and “translating” those for persons not familiar with the industry.  

I didn’t know how interesting this field of practice would be when I began practicing employment law exclusively in 1993.  I am exposed to the full range of industries as the settings where the drama and unpredictability of human behavior is played out in case after case.  Some guys get all the luck.  

Does this sound like your workplace, church, or family?

From Wikipedia, for the term "groupthink":
"To make groupthink testable, Irving Janis devised eight symptoms indicative of groupthink (1977).

Type I: Overestimations of the group—its power and morality
  1. Illusions of invulnerability creating excessive optimism and encouraging risk taking.
  2. Unquestioned belief in the morality of the group, causing members to ignore the consequences of their actions.
Type II: Closed-mindedness
  1. Rationalizing warnings that might challenge the group's assumptions.
  2. Stereotyping those who are opposed to the group as weak, evil, biased, spiteful, impotent, or stupid.
Type III: Pressures toward uniformity
  1. Self-censorship of ideas that deviate from the apparent group consensus.
  2. Illusions of unanimity among group members, silence is viewed as agreement.
  3. Direct pressure to conform placed on any member who questions the group, couched in terms of "disloyalty"
  4. Mind guards — self-appointed members who shield the group from dissenting information.
Groupthink, resulting from the symptoms listed above, results in defective decision-making. That is, consensus-driven decisions are the result of the following practices of groupthinking

Brain stall occurs when you "think" the ideas of the party, club, church, profession, you join.

Life is busy, and thinking takes time.  Worse, thinking takes discipline.  I am as tempted as the next person to attach a label to myself.  The label comes with a ready made set of beliefs assigned to the label.  A "liberal" label means you spend more, invite government help, and promote gay rights, for example.  A "conservative" label means you endorse "traditional family values," oppose abortion, desire less government and fewer taxes, and a "strong military."  

Attaching the label can give a sense of security:  you "know" who you are, and you "know" who the next guy is.  If I assign a label to you, I then know all about you, and all about myself.  Our choices and behavior are predictable.  Labels are efficient:  no need to ask questions, spend time understanding your background, current challenges or dreams.  No need to listen to your heart, or look for hints of your character.  

I recently undertook some acting lessons through the South Coast Repertory.  One of the reasons for adding these classes to my busy schedule was to experience what it is like to remove my self-labeling for a while, and put on another label.  In acting, you develop a strong sense of the place, circumstances, relationships, and motivation of your "new labeling."  Your character wants something, and will use various tactics to reach his goal.  Behind the label is fear, joy, sorrow, anticipation, dejection, love, hate, despair, vengeance, you name it.  Somehow, you search and find the core of the character, and become that person.  Imagine what such a skill can do for your relationships?  I imagined for example, how acting could improve my role as a lawyer:  to feel my client's pain; to experience the boredom of the jury; to view the case through the eyes of the judge; to look at the case as if I were the opposing party.  What a rich source of information, and what a great way to reach each player in the game.  You simply connect better when you speak within the other person's frame of meanings.

Friday, July 01, 2011

You get CA overtime even if you're working in CA temporarily, and resident in another state.

CA Supreme Court  today ruled a different rule would encourage CA employers to import labor from "no overtime" states.  This case is a very vivid example of a decision following local economic concerns before pure legal analysis.  Still, the decision seems best for CA employees and avoids a two tied wage law.  Sullivan v. Oracle 2011 DJDAR 9891.  Unanimous decision.  

Next week: FB Zukerberg announces a Skype based Chat capability. So talking faces go live.

Is this getting too personal, too real?  Virtual gets a bit more real time, a bit more like a relationship.  OMG.  

When furloughs turned illegal: if you are salaried exempt, and work any part of the week, you are due one full week of pay.

The FLSA [federal Fair Labor Standards Act] requires companies to pay exempt, salaried employees a full week for any portion of the week worked.  If the company imposes a furlough of one or more days off per work week, it runs afoul of this wage payment rule.  The problem is exacerbated if the company requires employees to reduce their bank of accrued vacation time for days involuntarily imposed as "vacation days" rather than "furlough" days, as such.  They are then basically depriving the employee of both one day's wages for the "earned" work week, and the day of vacation.  

If you have had this happen to you, or anticipate it happening, contact this office to discuss a possible class action case for all employees who are similarly affected.  


Tribalism: that subconscious force that operates to prefer people who are like us. Good side: survival, camaraderie. Bad side: racism.