An Open Letter to Senators Regarding Supreme Court Nomination Hearings


OldSenateChamber_bannerimageDear Senators:

I have followed a lot of Supreme Court hearings over the last forty years. They are getting worse, and they make every one of you on the Senate Judicial Committee look bad, as well as the rest of you who make unsubstantiated comments about the judicial nominees. Those of you supporting the candidate sound smarmy, and those of you objecting to the nominee seem unhinged.

The downturn in civility displayed in Senate nomination hearings began with Judge Robert Bork in 1987. Judge Bork was a well-respected jurist and professor, albeit definitely a conservative. Plenty of legal scholars had disagreed with Judge Bork’s interpretations of the Constitution before he was nominated, but for the first time a judicial nominee was savaged within minutes after his nomination was announced.

The Clarence Thomas hearings in 1991 became a full-on “he said, she said” debate over allegations of sexual harassment, of the type that can rarely be resolved to anyone’s satisfaction, and certainly not in the circus atmosphere that prevailed during those hearings. The allegations against Justice Thomas were not resolved, and no one really expected them to be resolved—the intent was to smear the nominee’s character.

Neil Gorsuch got off reasonably easily during his confirmation hearings in 2017. But when Senate Democrats attempted to filibuster the vote by the full Senate, Republicans completed what the Democrats had begun for lower court nominations and abolished the filibuster for Supreme Court appointments. So there is no point in worrying about a super-majority. When one party controls the Senate and the Presidency, that party’s nominees are likely to be confirmed.

Judge Brett Kavanaugh has been run through the wringer this past week. Both conservatives and liberals have attested to his qualifications for the Supreme Court. Nevertheless, he has been called, among other things, a racist and a white supremacist.

During her confirmation hearings in 2009, Sonia Sotomayor was raked over the coals for speeches in which she had commented that she hoped “a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion” than a white male. While the Republicans’ reactions to Justice Sotomayor’s comments were an overreaction to her prideful statement about her heritage, her statements more clearly revealed bias than the current allegations against Judge Kavanaugh.

Judge Kavanaugh has been accused of being a racist for writing a memo on racial profiling that said the government should not engage in racial profiling. He has been accused of having white supremacist beliefs because one of his former clerks—a Mexican-American of partially Jewish descent—made a (probably involuntary) gesture that looked like a white supremacist symbol.

The Senate Judicial Committee is scheduled to vote on Judge Kavanaugh’s nomination on September 13, and there will later be debate on the full floor of the Senate soon. I fully anticipate that the allegations against Judge Kavanaugh are not over yet. Our nation will have to tolerate more of this indecent character assassination by Senators.

Both parties need to dial it down during these judicial hearings. Way down.

There is no point in Senators trying to show that any judicial nominee is evil incarnate. It is highly unlikely that Satan would ever be nominated to the Supreme Court, even by a President of the opposite party as you.

The Constitution gives Senators the power to “advise and consent” to judicial appointments. The Constitution doesn’t say you need a reason to withhold your consent.

So just vote against the individual. It is your right as a Senator. As Colin Kaepernick now advocates, just do it.

Don’t needlessly slander the character of the nominee to make your base happy. It belittles you more than the candidate.

Sincerely,

A concerned and irritated citizen with moderate knowledge of the nomination process

* * * * *

Readers, what about our current judicial nomination process irritates you?

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Labor Policy Changes Under the Trump Administration


Most of the news about the Trump Administration in recent days has involved developments arising out of the special counsel’s investigation. But as Labor Day approaches, it is worth examining what the administration has accomplished in the labor arena. Many stories about changes in regulations are getting less media attention than they might have, had we not had daily stories about sensational prosecutions or pleas and inflammatory tweets about Russia’s meddling and campaign finance violations.

Here are a few of the more significant changes in labor policy under President Trump:

DOL seal.pngFair Labor Standards Act: Although the 80-year-old Fair Labor Standards Act remains largely unchanged, the Department of Labor has again started using DOL opinion letters, which the Obama Administration had abolished. Opinion letters provide guidance that employers can rely on for interpretation of the regulations, so returning to this practice is a help. Moreover, many of the Bush Administration opinion letters have been reinstated.

Furthermore, in June 2017 the Trump Administration withdrew the Obama-era interpretation on joint employment. The joint employment interpretation—designed to make large franchisors liable for the practices of independently owned franchisees—was roundly criticized by employers, so the return to the former DOL interpretation of when joint employment arises is a welcome relief for employers.

The Trump Administration has also rolled back rulemaking under the white collar overtime exemption and the tip pooling regulations. In both cases, DOL is now attempting to provide employers with broader exemptions and greater relief from regulation.

Still, any changes to current FLSA regulations are likely to engender future litigation, so even if DOL’s Wage & Hour Division issues favorable changes, employers will have a long time to wait until there is certainty in this area.

Broader Range of Health Plans for Small Businesses: As a result of a Trump executive order seeking to reverse or limit portions of Obamacare that can be addressed by regulation, DOL has proposed letting more small firms and individuals form association health plans (AHPs). Large businesses have the market power to get good discounts from health care providers; the proposal is intended to let small businesses, including self-employed workers, pool their populations to get similar discounts through an AHP. Under this proposal, companies or individuals involved in the same type of business or located in the same region could band together to form AHPs.

Any attempts to broaden access to healthcare insurance should be encouraged, even if they do not satisfy all the benefit coverage requirements or other restrictions of Obamacare. More choice in insurance options will help employers of all sizes attract and retain employees.

Union Negotiations: The Trump Administration has pushed federal agencies with unionized workforces to reopen collective bargaining agreements with their public unions. Agencies have also been directed to move swiftly to fire poor performers. The Administration argues it is trying to streamline costly government bureaucracy and improve accountability of the federal workforce.

As with changes under the FLSA, litigation over these changes is likely. (In fact, on August 25, 2018, just as I was finalizing this post, a district court judge overturned some of the executive orders implementing them.)

In Janus v. American Federation of State, County, and Municipal Employees, Council 31 (Sup. Ct. June 27, 2018), the Supreme Cout ruled against public unions in a different context (deciding that public employees could not be forced to pay union dues). This decision weakens public unions, and arguably indicates possible Supreme Court support for government efforts to push back against such unions. However, it remains to be seen whether the Court would help the Trump Administration roll back previously negotiated collective bargaining agreements.

And nothing in Janus changes how the NLRB deals with issues between private employers and their unions, which would be a more helpful area of focus during the next two years of the Trump Administration.

nlrb logoRestrictions on Employee Use of Employer Email: One helpful development for private employers that the Trump Administration has undertaken is that the National Labor Relations Board (NLRB) has invited briefs on whether it should overrule Purple Communications, Inc., 361 NLRB 1050 (2014). The Board held in that case that employees had a presumptive right to use employer email systems on nonworking time for organizing and other protected communications under the National Labor Relations Act.  In Purple Communications, the Board overruled its earlier decisions holding that employers could maintain union-neutral policies regarding permissible uses of their email systems, even if these policies had the incidental effect of limiting use of those systems for union–related communications. Presumably, the NLRB is now considering a return to the holding of those prior cases.

This and other NLRB actions could have far-ranging impact on employers’ efforts to maintain union-free workplaces. However, NLRB policy in recent decades has tended to shift with the party affiliations of the five NLRB members, so whatever the current administration does could once again be overruled.

Application of Religious Freedom Principles to the Workplace: DOL is attempting to make it easier for federal contractors to claim religious beliefs as a defense against anti-LGBTQ discrimination complaints. Recent directives state that the federal government has a duty to protect religious exercise, not to impede it. The Administration has instructed the Office of Federal Contract Compliance Programs (OFCCP) not to condition federal contracts “upon a recipient’s willingness to surrender his [or her] religiously impelled status.” Rather, faith-based organizations should be permitted to compete on a level playing field for federal contracts.

There will be a rulemaking process, so the impact of these directives may not be known for some time.

* * * * *

All in all, there have been some helpful changes at the DOL, the NLRB, and other labor policy-making agencies. However, much of the Obama Administration’s overreach in the labor arena remains in place.

Employers should encourage the current administration and Congress to pursue business-friendly policies designed to keep the economy growing. Perhaps the likelihood of continued media attention on the special prosecutor’s investigation will enable more good regulatory work to move labor laws and policy in directions conducive to business and employment growth.

But employers should also remain mindful of the need to comply with labor laws and regulations currently in effect.

What labor policies would you like to see changed and why?

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Planning for a Mediation: Determining your WATNA, LLATNA and MLATNA to Get to Your BATNA


business-3152586_640Corporate executives and Human Resources professionals sometimes find themselves representing their employer during mediations. I’ve been not only a mediator, but also a corporate representative and an attorney during mediations. In all these roles, I came to see the importance of preparing for the mediation.

Just as you would for any negotiation, it is important to know what you and your company are trying to achieve. (If you’re an attorney reading this, it is just as important that you know what your client needs to achieve.

There are lots of materials written about knowing your BATNA (Best Alternative To a Negotiated Agreement) before settling a case. But how do you decide what your best alternative to settling the case is? Remember that your BATNA cannot be dependent on anything the other party in the case does—it must be something that you can control or that you think will probably happen regardless what the other party does.

Determining your BATNA can’t be done in a vacuum. It is often easier to start by determining your WATNA — the worst alternative to a negotiated agreement. Sometimes, the worst alternative is the company goes bankrupt. Other times, it’s a huge PR debacle. Or maybe the worst that can happen is only that the company loses some money, but it isn’t a significant hit to the bottom line.

Only by deciding the maximum amount at stake can you decide how important this case is, and thereby decide how much to throw into settlement. (Note that though I might talk in terms of money, there are often other important resources at stake also—reputation, intellectual property rights, etc. Those must be put in the equation when valuing the case also.)

Other important considerations in determining the BATNA are LLATNA and MLATNA. I have seen parties to mediations get hung up on the least likely outcome in the case—their LLATNA (Lease Likely Alternative To a Negotiated Agreement). They see a 2% chance of winning big, and that’s all they can focus on. But your LLATNA should not determine your BATNA.

By contrast, the MLATNA is the Most Likely Alternative To a Negotiated Agreement. It is a much more useful concept.

For example, If the outcomes to an employment lawsuit could range from the employer winning its attorneys’ fees (with a 2% likelihood of occurring) to losing $1 million plus the plaintiff’s attorneys’ fees of $150,000 (with a 5% likelihood of occurring), the MLATNA might be losing $100,000 plus the plaintiff’s attorneys’ fees of $150,000 as well as your own (with a 40% likelihood of occurring). Or the MLATNA might be winning the case, but having to pay your own attorneys’ fees of $150,000 (also with a 40% likelihood of occurring). Now you have a range to work with—the case is worth at least $150,000 and up to at least $400,000 (the damage award of $100, plus $300,000 to cover both sides’ attorneys’ fees.)

Clearly, it is important to have some advance discussions with your attorney about the range of outcomes in a case and the likelihood that each might happen. Attorneys will not commit to specific outcomes, but they should be knowledgeable enough to talk in ranges both of verdicts and probabilities. Only after assessing the possible outcomes in the case—as well as the likelihood that each might happen—can you decide what you are willing to settle the case for.

You might go with a simple weighted average of the possibilities for your walkaway point. Or you might decide that the WATNA is so bad that you will lean toward settlement at (almost) any cost short of that. Or you might feel optimistic and look only at cost of defense as the settlement value of the case. But the point is, you need to consider all the possibilities.

Once you’ve looked at the range of outcomes, what do you do?

You and your counsel should discuss your mediation strategy. Where do you want to start your settlement offer? How do you get the other party talking in your settlement range? What do you have to offer that has no cost or is of little importance to you, but very important to the other side?

Then take your planning to the next level: What do you disclose to the other party in a general session? What do you disclose to the mediator in caucus? Who should be present at the mediation to maximize your credibility and persuasiveness to the other side?

* * * * *

The purpose of this post is to emphasize the importance of planning prior to a mediation. When planning, you need to consider and evaluate the possible outcomes of the case. Then set your strategy to land you in the settlement range you desire.

But be flexible. You don’t know what you don’t know. You might learn new facts during the mediation that cause you to rethink the possibilities.

When have you planned effectively for a mediation or other settlement discussion? What worked for you?

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Delegating Too Much and Too Little, and Finding a Balance


Delegation Model 1I posted a couple of years ago about problems I had with delegation during my career. I was reminded of these issues again when I read a recent post by Mary Jo Asmus of Aspire Collaborative Services Inc., entitled “The Upsides of Delegating.”

As I wrote before, when I first began supervising other professionals on projects, I either delegated too much to them (essentially providing them with no feedback) or I delegated too little (and micromanaged their projects). I provided very little coaching, in either case. It took me several years to figure out how to provide the right level of oversight, depending on the person’s experience and ability. And to learn how to provide emotional support, in addition to the substantive support needed to reach a strong project outcome.

Delegation Model 2I once saw a diagram of four styles of delegation. The labels on the diagram have slipped my mind, and I don’t recall the source. But essentially, the diagram differentiated the styles of delegation based on the substantive and emotional support that the manager provided to his or her subordinates.

In those early days, I spent my time on the substantive side of delegating, without much involvement in the emotional side.

Delegation Model 5Over time, I became more flexible in my management and delegation style. In fact, with the seasoned professionals who reported to me in my last few years as a manager, I provided little substantive support and learned that I should vary the emotional support I gave them, based on their personalities and the difficulty of the assignments they faced.

In fact, I came to see my role as deflecting the corporate politics they faced, so that they could focus on the substantive expertise they brought to the project.

As my best boss told me often, the best way to solve a problem is to throw good people at it. And let them do their jobs, even when you would do it differently. I took those lessons to heart, though it took me time to learn to trust others more than myself.

How has your style of delegating changed through your career? Where can you improve in delegating?

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What Is the Future of HR—Business Partnership or Employee Engagement?


HR signI wrote last September about the relevance of HR in changing times. Recently, I’ve seen several articles on TLNT.com that caused me to again reflect on the future of HR.

Let’s start with a story from DisruptHR entitled “It’s Not Complicated. HR Is About the People,” dated June 20, 2018. That story presents a video by Andrea Butcher which argues that HR professionals should not necessarily become business partners, if doing so takes them away from focusing on the people. Focusing on the people drives business results, because people are what drive business results.

Then I read another DisruptHR story called “HR’s Job Should Be to Encourage Conflict,” dated June 13, 2018. In that piece, Amanda Ono says that the best employees want to learn and grow . . . and they will only do their best work if they disrupt the status quo. So HR should help them by encouraging conflict in the workplace that will change things. She proposes that HR

“Train people on what healthy conflict means. Train people on how to engage in healthy dialogue.”

This sounds like another way of emphasizing people in the organization, albeit emphasizing top talent that can influence change and improve results.

In another TLNT article, “You Can’t Build a Talent-Driven Organization Without HR,” May 3, 2018, Michelle M. Smith writes that HR is under increasing scrutiny for ineffective talent strategies and lack of a strong business perspective. The thrust of her article is that it is the responsibility of corporate leadership—not just of HR—to be focused on finding and developing top talent, but HR must support them. This, of course, is the gist of HR being a business partner.

“The CHRO [Chief Human Resources Officer] of a talent-driven organization must be a great business person, not just a great people person.”

So which is it? Should future HR leaders focus on the business or the people?

The truth is, you can’t do one without the other.

My heart is in employee relations and in developing a great place to work. But if I ignore the business needs of the organization, it will not be a great place to work. If I only focus on employee engagement, without engaging them in what the business requires, I will not be serving anyone well.

And so says Susan Gallagher, in “Fast Growth Means You Need to Pay Extra Attention to Culture,” June 19, 2018.  She writes:

“Culture is the most critical part of your talent strategy when guiding your employees through the stages of rapid company growth. Keeping your people connected to your company’s core values is essential before, after, and – importantly – during the growth period, which itself challenges your company’s beliefs and behavior.”

Although her focus is on growth, the importance of culture and employee engagement is true wherever a company is in the business cycle. Moreover, Ms. Gallagher says:

“Culture cannot be dictated from the top; it must be integrated into all levels of your management team and down through the rank and file.”

The title of this post—business partnership or employee engagement—doesn’t capture the complexity of the workplace. The right answer is . . . HR must focus on BOTH. It is HR’s role to help the organization’s leaders articulate the connection between employee engagement and business results.

As Susan Gallagher says:

“Put yourself in the shoes of different groups of employees and how they will be affected. Get granular and look at different constituencies of your workforce. . . . you want your people to be as invested in the change as you are and happy about making it happen.”

Now that sounds like a focus on employee engagement AND business partnership.

Which focus do you emphasize? Business partnership or employee engagement?

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Likely Impact of Masterpiece Cakeshop Decision on Employers


wedding-cake-3346747_640Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (Sup. Ct. June 4, 2018), is about discrimination in public accommodations, not employment discrimination. Moreover, the Supreme Court decided the case on narrow grounds—the Court ruled against the Colorado Civil Rights Commission because the Commission had voiced remarks showing a disdain for religion. The Commission did not act as a neutral decision-maker in the dispute between Jack Phillips, the Christian owner of a bakery, and two gay men who asked Mr. Phillips to make them a wedding cake.

Therefore, it might seem that this case would have little to do with employment cases. However, employers frequently find themselves in the same position as the Colorado Civil Rights Commission—arbitrating disputes between two employees each of whom has a protected status, but whose interests clash. These disputes can relate to race, gender, age, religion, sexual orientation, or any other protected status.

Let’s just stick with religion—the primary issue in the Masterpiece Cakeshop case. I once dealt with an employment discrimination claim in which a woman was fired after she repeatedly answered the phone of her retail employer “In the name of Jesus Christ of Nazareth . . .” Needless to say, the non-Christian customers of this store (as well as many of the Christian customers) were offended to be greeted in this fashion.

At the time, the standard for religious accommodation in employment discrimination cases was whether accommodating the employee’s religious practices resulted in more than a “de minimis” burden on the employer. We successfully argued that offending our customers was more than a “de minimis” burden.

I still think that would be the result today. However, the Masterpiece Cakeshop decision makes it clear that religious practices are to be taken seriously.

In the case I described, we talked to the woman’s pastor, who told us (and her) that her church did not require her to answer the phone “In the name of Jesus Christ of Nazareth.” It’s clear under later precedents, however, that it doesn’t matter what the religious institution says, if the individual holds a sincere belief. Thus, this woman’s firmly held belief that she was called to answer the phone this way gave her protected rights, whether it was part of church doctrine or not.

And if we had belittled her in some way because of her belief or because of how she practiced her religion—as the Supreme Court found that Colorado Civil Rights Commission had belittled the cake baker—we might well have been liable for religious discrimination.

Justice Kennedy said in the majority opinion in Masterpiece Cakeshop,

“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”

Moreover, the Court focused on how the Colorado Civil Rights Commission treated Mr. Phillips differently than other bakers who refused to make cakes with messages opposing gay marriage—those bakers were allowed to refuse customers with whom they disagreed, while the Commission had required Mr. Phillips to bake a cake supporting an occasion his religious beliefs caused him to oppose.

As Justice Kennedy said,

“these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

This is a tall order, but deference and courtesy on all sides is more likely to lead to a positive outcome than hostility and ridicule.

It is never easy to resolve situations when two protected interests clash. For me, the Masterpiece Cakeshop decision reemphasizes the importance of treating all interests with respect. At the end of the day, employers must choose sides, just as the Colorado Civil Rights Commission had to choose a side in this case. But all sides in the dispute should be heard and treated with courtesy and tolerance.

It would have been easy for my client to ridicule the employee who answered a business phone with an overtly religious message. But it would have been wrong. Just as it was wrong for the Colorado Civil Rights Commission to ridicule Jack Phillips and his beliefs.

When have you had to resolve a situation in which various employees’ protected rights clashed?

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Thomas-Kilmann Model (Reprised): When Compromise and Collaboration Are Difficult


How Do You Deal with Conflict? Use of the Thomas Kilmann Conflict Mode Inventory in Mediation

I’ve posted a couple of times before about the Thomas-Kilmann model depicting five modes of handling conflict (see here and here). All of us gravitate to one or two of the  five conflict management styles.

As mediators, many of us are trained to use a compromising conflict resolution style—the style in the middle of the matrix, with moderate levels of assertiveness and cooperation. Many mediators also aspire to use a collaborative style—high in both assertiveness and cooperation.

As I reflected on the various styles of managing conflict recently, it occurred to me that there are two factors which often make using either compromise or collaboration very difficult during a dispute. These two factors are (1) lack of trust and (2) demonization of the other party.

1. Lack of Trust Means the Parties Feel They Are Likely To Be Abused

In order either to compromise with another party in which each side gives up something, or to find a win-win solution (the essence of collaboration), you have to see some parity between what you are giving up or gaining and what the other side is. Without trust, it is difficult to feel that you are not giving up more than the other side or that you are gaining as much as the other side.

If there is a history between the parties which one of them believes shows bad faith by the other, then trust is minimal or nonexistent. Past inequity in the relationship makes one or both parties feel that they will probably be mistreated again.

In these situations, the mediator needs to do a lot of ground work before getting to the core issues in the dispute. Perhaps little compromises can be reached or little collaborations on minor issues can build trust, but it is likely to take time.

2. Demonizing the Other Party Destroys Incentives to Work Together

Unfortunately, in too many disputes, one or both parties views the other as evil incarnate. This might be because of the history between the parties, or it might be because their dispute involves an issue that one or both of them perceives as a moral issue (such as abortion, or restrictions on guns in schools, or the death penalty). But even economic issues can take on a moral lens (e.g., drug companies and other for-profit healthcare businesses should never make more than a minimal profit, or lawyers fees are too high, or no employee should get a larger raise than anyone else).

Once values and perceptions of morality and immorality have entered the equation, it is difficult to compromise or collaborate. The “other” becomes an evil person or entity, and ceding any ground or granting them any favors becomes repugnant.

In these situations also, the mediator must work slowly. It might take a long time to dig deep enough to find the common ground between the parties. (For example, the importance of school safety, or the need for some incentives to drug companies to encourage research into new drugs.) Discovering common values is the only way to dispel the demonization of the other party.

* * * * *

I have seen many situations where lack of trust and/or vilification of the other party’s character and intent have sabotaged a mediation. These are difficult cases. Sometimes I’ve been successful in getting the parties to come to some rational place where they can compromise, but sometimes their biases go too deep and settlement (at least for that day) is impossible.

Moreover, moving beyond compromise to collaboration is even more difficult. Only rarely do parties start at a point where they despise each other and reach a resolution where everyone wins. I think I’ve seen it happen once.

What has your experience been when mediating situations involving lack of trust or demonization of the other party?

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