Posted tagged ‘Strategy’

A Review of the US Supreme Court Seen as Split when it comes to Employer/Employee Lawsuits

October 4, 2010

July 27, 2010

As the United States Supreme Court’s 2009-2010 term drew to a close, commentators remarked on the evolution of the Roberts Court. Justice Roberts continued to emerge as a key figure this term, as he was a member of the majority 92 percent of the time, more than any other justice.

While his majority percentage may suggest to some willingness to compromise with his more liberal colleagues on certain issues, he also clearly demonstrated firm convictions on important issues such as campaign finance and gun rights, which yielded some the most highly publicized decisions of the term. Indeed, the Court’s ruling in the Citizens United case, which invalidated legislation imposing limits on corporate spending in elections, has led some commentators to conclude that the Roberts Court is ushering in era where business interests will reign supreme.

This view, however, does not accurately characterize the Court’s labor and employment decisions, which demonstrate a far more even split between employer and employee interests. The nine employment-related decisions issued by the Court this term included:

  • Two ERISA cases (Conkright, Hardt);
  • Two attorneys’ fees cases (Perdue, Hardt);
  • Three arbitration cases (Stolt-Nielsen, Rent-a-Center West, Granite Rock); and
  • Important proclamations regarding: authority of the two member National Labor Relations Board (New Process Steel), timeliness of discrimination charges (Lewis), and privacy rights (Quon).

These decisions demonstrated that the Court’s conservative justices continue to play a dominant role, a trend that will likely continue at least through the next term with the pending retirement of Justice Stevens. Of these nine decisions, five were decided 5-4 or 5-3, with the conservative block constituting the majority in all but one.

The remaining four decisions were generally unanimous, with the exception of a partial dissent in Granite Rock. Of the nine decisions, five are viewed as generally favorable to employers; of the remaining four, viewed as favorable to employees, three were essentially unanimous, including the Granite Rock ruling against the viability of a new federal cause of action for tortious interference under § 301(a) of the Labor Management and Relations Act.

One landmark unanimous decision, Lewis v. City of Chicago, Case No. 08-976 (May 24, 2010), held that a plaintiff who does not file a timely charge challenging employment practice may nevertheless assert a disparate impact claim. The opinion marks a notable departure from Scalia’s concurrence in Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) during the Court’s 2008-2009 term.

At that time, Justice Scalia flirted with the notion that disparate impact claims were inherently in conflict with the “disparate treatment” prohibition of Title VII and the Equal Protection guarantees of the United States Constitution which prohibit intentional race-based decision making. He noted that Title VII’s disparate impact provisions often require “employers to evaluate the racial outcomes of their policies, and to make decisions (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.” Id. at 2682.

Scalia’s unanimous opinion in Lewis makes no mention of his prior comments in Ricci and expresses no misgivings about the viability of disparate impact claims generally, where there is no issue or claim pending that an employer’s attempt to remedy or protect against a disparate impact has resulted in potentially discriminatory race-based decision.

Retaliation Claims Take Number One Spot in EEOC Complaints

October 4, 2010

July 27, 2010

Employers beware, the need for credible complaint procedures underscored as current trends show a marked increase in complaints related to retaliation in filings with the Equal Employment Opportunity Commission (EEOC) has raised exponentially and workplace audits have ramped up to levels we’ve not seen in years.

According to EEOC data, retaliation charges more than tripled between 1992 and 2009 and now comprise 36% (93,277) of the total charges filed, making it the number one complaint filed with the EEOC.  The EEOC is the federal agency responsible for enforcing employment discrimination laws including Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). 

The reason for the rise in retaliation claims is simple – they are easier to prove and the damage awards are often higher than claims of discrimination.  Retaliation claims typically assert that an employer took some adverse action against an employee because the employee exercised a legal right, such as filing a discrimination claim.  Courts often rule in favor of employees in the retaliation part of their lawsuits, even when the underlying discrimination claim is dismissed. 

Generally, unlawful retaliation occurs when an employer treats an employee differently for exercising rights under one or more of the various state or federal statutes. To prove unlawful retaliation an employee is required to establish that (1) the employee engaged in a protected activity, (2) the employer took some adverse employment action against the employee, and (3) a casual connection existed between the protected activity and the adverse employment action.  

To establish that an employee engaged in a protected activity, an employee must show that he or she (a) participated in an activity protected by law (Such as, filed a charge of discrimination, testified in support of another employee, or participated in an investigation.) or (b) opposed an unlawful employment practice.

A common example of retaliation is when an employee bypasses the company, and files an EEOC claim that accuses the supervisor of being a discriminatory behavior.  The law requires that the company treat the subordinate employee as if nothing happened, and as if the accusation was never lodged.  Obviously, a supervisor who feels unfairly accused will want to strike back at the employee that made the accusation. “Striking back” constitutes retaliation. 

The criteria for making retaliation claims follow a relatively low standard as established by the Supreme Court in the 2006 case of Burlington Northern & Santa Fe Railway Co. v. White.  The Supreme Court held that an “adverse action” is any action by an employer that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court noted that, unlike discrimination which focuses on characteristics of a group, retaliation claims focus on the conduct of the individual.  The Court’s expansive view of what constitutes an “adverse action” allows employees to claim that almost any action taken by an employer is retaliatory, if that action deters a reasonable employee from coming forward with a complaint. 

Proactive and preventative measures taken by the employer limits even the illusion of systemic retaliatory actions.  Through meaningful and consistent management practices, the following guidelines serve to protect employers and provide a meaningful solutions-oriented workplace when issues arise:

  1. Prepare and disseminate to every employee a written internal procedure for filing a complaint.  If the current anti-discrimination policies do not address retaliation, then amend to include a non-retaliation statement that encourages employees to come forward with complaints of unlawful conduct without fear of reprisal.
  2. Train Supervisors on what constitutes retaliation and how to avoid treating employees differently.  Managers, team leaders, supervisors, etc., must be regularly trained and should understand that negative reaction to a complaint will only make the problem worse and may lead to a retaliation claim. 
  3. Conduct a thorough and unbiased investigation of every claim.  Employees should not be ignored or ostracized and the absence of an investigation has been found to be a form of retaliation.  Therefore the employer should explain the policy against retaliation and procedures for resolving a complaint to include continued assistance if the employee experiences additional problems.  All discussions with the employee should be documented — one meeting may not be enough.  It is a good practice for employers to follow up with the employee and ask whether there have been any further problems after an employee comes forward.
  4. Properly Document Complaints.  Regardless of where or how the complaint was received, it is vital that the employer document when the complaint occurred and when the supervisor became aware of the complaint, who was involved, and what the complaint entails (for example, when documenting the conversation get direct quotes from the employee if possible.)  It should be the employer’s general practice to thoroughly document all employee performance issues.  This practice also allows the employer to demonstrate that any subsequent performance problems are justified and not as a result of alleged retaliation.

Accommodating an employee that has made a complaint can sometimes be difficult, especially when that employee is believed to be a “problem employee” or the employee’s claim has no merit.  Many management teams are made up of top technical talent; however, most are not properly developed to manage people. Such a serious gap poses risk as evidenced by the marked increase in workplace audits relating to employee management. By consistently following written procedures and policies, training management teams, and by exercising caution and restraint, employers can effectively reduce the risks associated with the rise of retaliation claims.

Good News! Managing Innovation as a core business strategy has bottom-line benefits

October 4, 2010

U.S. Commerce Secretary Gary Locke said “America’s innovation engine is not as efficient or as effective as it needs to be, and we are not creating as many jobs as we should. We must get better at connecting the great ideas to the great company builders.”

Throughout U.S. history, basic research in public and private sector research labs has spawned new technologies and inventions that led to new businesses. Those entrepreneurial businesses have been important drivers of the economy and ultimate job creation. Firms less than five years old have accounted for nearly all net new jobs in America over the last 30 years. Yet, as a share of gross domestic product, American federal investment in the physical sciences and engineering research has dropped by half since 1970.

While federal investment may be important to the long-term capability of improving the economy, a key point highlighted here is that entrepreneurial impetus is a direct result of innovative thought, and a solid strategy for both short and long-term viability. 

According to Bill Ezell of Client Success Group, Inc., impetus is developed at the early stage of corporate development. “It’s more than about new products or services; it is about creating business processes to enable a company to enter new markets.” He continued the thought by saying that his role is about helping companies focus on the business processes that surround a product or service rather than the product itself. This enables risk to be assessed, strengths identified, and alignment developed in concert with market uncertainties. “Certainly innovation is about more than the product itself; it is about the ability to enable entry into new and emerging markets as opportunities arise. “

The dilemma lies in the strategy. “The creation of jobs should not be the focus; rather it should be about the strategy of innovation.”  For economic viability, stated Ezell, “it is important to develop a broader strategy to spur innovation and enable breakthrough technologies and dynamic companies to develop and grow.” Ezell continued by saying that “the value lies in the development of a culture that embraces and understands uncertainty, takes a serious look at innovation as a strategic focus, and develops a product or service for a profit for which jobs become the net outcome.”

The vehicle of innovation lies in the organization through surrounding human capital principles. “We must understand how human capital is managed and developed and what can be done to increase the focus” says Julie Lenzer Kirk at the Path Forward Center for Innovation and Entrepreneurship in Damascus, Maryland.  “Innovation is the most important impetus to creating opportunity and jobs.”  Kirk maintains that “by definition, innovative strategy creates value and is done best when embedded in the culture.”

Hiring the right people and developing strong cross-functional teams are vital to success. The best innovators have removed “can’t” from their language and consistently and constantly seek ways to bend the traditional knowledge curve.  Although, as Kirk stated, “Flexibility is a key indicator of success; conflict is good for innovative and productive outcomes.”  She continued by saying that “It’s an art not a science” and that innovative thought requires focus and balance to prevent tangent ideas from taking over rational business thinking.

“You have to keep going back to the process” says Kirk.  “Getting sparked” begins with idea generation and is kept in check by consistently reviewing ideas against the goals and objectives of the organization.  The process of “getting real” requires metrics that identify key indicators of success at milestone touch points. This allows for opportunity to be consistently rechecked and aligned with business objectives so that all good ideas are given credence and consideration at the right moment.

Practically thinking, “people need time to think, innovation comes from within and is enabled best when groups are allowed to share and develop ideas” according to Kerri Morehart of Pragmatics in McLean, VA. The objective for Pragmatics is to create an environment where innovation can happen. 

The challenge is in enabling continuous opportunities for idea generation through systematic communication coupled with the removal of the fear many associate with leading-edge thought.  “The value of face to face communication will never be replaced with technology.” In fact, at Pragmatics, employees are encouraged not to hide behind technology and to allow for the integration of solid ‘old school’ principles of face to face communication with ‘new school’ technologies.  By doing so, employees are encouraged and excited about possibilities. When they are, idea generation is increased and the bottom-line is that it becomes a win-win for both the company and the employee.

Morehart added that risk is not a blank piece of paper and without the ability to remain flexible and liquid, the ‘real meat’ of an idea that considers all possibilities is often missed.  Employees are encouraged to constantly think about and develop ideas.  CEO, Dr. Long Nguyen makes innovation very personal and helps employees to keep focus by allowing for and encouraging one-on-one meetings that are focused and real for each employee individually.

By “sticking to the knitting” and developing employee management programs that provide an environment of innovative thinking is proven to be a positive enhancement to the bottom-line. Pragmatics has experienced a 30% growth year over year despite the economy and forecasts the pace of growth to continue.  “Let’s face it, employees love their work and our clients love our outcome” says Morehart.

That simple fact was easily proven through Sean Cohan, Head of Agile Development at Pragmatics. He enthusiastically discussed how innovation enabled agile development to take root at Pragmatics. His passion and excitement for agile was evident in the discussion and his clients are definitely pleased with the outcome. Largely due to his passion for innovative technology and the flexibility of his company to allow development of his ideas, clients of Pragmatics have reaped the benefits of solutions using agile.

Agile development refers to a methodologies based on iterative development, where requirements and solutions evolve through collaboration between self-organizing cross-functional teams. Through Pragmatics, clients were provided the opportunity to embrace agile practices.  With each success, the practice was enlarged through increased funding and space so that enhanced technologies could be developed.  Each stage of development along with the success realized with the end-client has proven to consistently increase customer support for agile development.

According to Cohan, “the impetus for development began internally with the need to support web development for a client.  With a need, came ideas, from the ideas, came solutions.” As a result of the success, a whole new business wheel was born and “we were able to expand our reach by launching agile related services with other clients”

According to Morehart, the framework for innovative thinking is embedded in the culture and begins before the employee comes to Pragmatics.  This allows for innovative thought to be fully leveraged in the hiring strategies that consistently source and retain critical thinkers.  This is certainly good news for Leslie Sorg Ramsay of the McCormick Group in Arlington, VA.  According to Sorg Ramsay, “bottom line, we want our clients to do better and retaining the right Human Capital is the answer. In the Human Capital world, we understand how people create success, and the company that embraces innovation is the key factor that enables personal success.  It’s a win-win for all concerned.”  She quoted the head of Pixar’s Training and Development as saying “people are more important than strategy, people create strategy.”

According to Sorg Ramsay, when working with hiring managers,” it’s necessary to fully understand what the company is doing, wants to do, and how they plan to develop their business model.”  By doing so, she is better able to focus her search on the “right fit” and to provide candidates who not only meet short-term needs, but who are also aligned with the long-term goals of the organization.

“It’s a fallacy to think that the talented most innovative people are looking for jobs, they focus on the long-term and want careers” says Sorg Ramsay. “So by working with the Leaders of an organization, we work to bring the best career minded folks to the most innovatively enabled environment.”  To do so “it is important to calibrate requirements with one or two hiring considerations.  This allows us to help streamline the process and ultimately provide only those candidates worth considering for hire.” It’s about partnership and, says Sorg Ramsay, “our ability to enter into a substantive discussion with our clients enables us to develop that vital partnership.”  

The economy is at risk, job growth is anemic at best. Yet, innovation is proof that organizations are dealing with today’s environment without losing focus on their long-term strategy.  As quoted from Dr. Long Nguyen of Pragmatics, “my objective in establishing Pragmatics was to build an organization highly skilled at developing technology-oriented solutions for information management requirements. “  He chose not to develop an organization that could do everything, but to focus on the quality of the service provided. At 30% growth, strategic innovation that is aligned with organizational goals and its processes is a key indicator of success.

For questions and comments, please feel free to contact the contributors to this article:

Bill Ezell, CEO and Founder of Client Success Group, Inc., a management consulting group focused on market and business development and revenue acceleration strategies. Headquartered in San Francisco with offices worldwide, Bill can be reached at (408) 531-1907,,

Julie Lenzer Kirk, CEO and Chief Muse at Path Forward Center for Innovation and Entrepreneurship, a nonprofit that helps women expand economic opportunity by starting and building growth-oriented businesses.  Located in Damascus Maryland, Julie can be reached at (301) 916-5126,, or visit their website at:

Leslie Sorg Ramsay, Principal at The McCormick Group, One of the top 25 search firms in the country and the largest independent executive search and consulting firm based in the Washington, DC, metropolitan area. Leslie can be reached at (703) 841-1700, or visit their website at:

Pragmatics, solving mission-critical government technology challenges by incorporating technical expertise, process improvement, and innovation to deliver quality solutions that give customers what they need – real results.

–   Kerri Ross Morehart, Vice President, Human Resources at Pragmatics, (703) 761-4033,,

–   Sean Cohan, Agile Development, Pragmatics, (703) 761-4033,,

–   Or visit their website at: