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Whether you sue employers or defend them — or a little of both — what you do, and how you do it, is changing. Some shifts in our practice are subtle, others are more pronounced, but all are permanent. Here are 10 shifts coming soon to a firm near you. Shift No.1: It’s EQ, Not IQ — Do a word association quiz for “EQ” and chances are the immediate response may be that it’s a Steven Spielberg movie. While “Emotional Quotient” may not be a catchy movie title, its importance cannot be overemphasized. EQ is an ability to understand a client’s problems and provide concrete solutions. But, it’s more than that: giving your opinion on the best solution; helping the client understand that every problem presents an opportunity to learn and change (that is, the glass is half full, not half empty); identifying options and innovative solutions to problems; and effectively communicating these points. Telling the clients by rote “the law doesn’t allow it” or “on the one hand this, on the other hand that” won’t cut it anymore. In short, a point of view is required of employment lawyers, who are increasingly seen as partners by sued companies and suing employees. As a notable Texan, Jim Hightower, former agricultural commissioner in Texas, once remarked, “The only thing[s] in the middle of the road are dead armadillos and yellow stripes.” Shift No. 2: EQ Continued — Look at most business cards, and they generally state something like: “Attorneys and Counselors at Law.” What we see, though, is a lot less of the first and a lot more of the second. Ten years ago, straightforward disparate treatment cases were the bread and butter of employment lawyers: Two employees fight, one is fired and the other isn’t. Is that discrimination? Not only do these cases comprise less of our caseload, but clients also are hesitant to pay top-shelf prices for their defense, relying instead on general litigators or insurance coverage. What else is changing the landscape? The resources of the Internet are creating a new generation of clients — more knowledgeable, more savvy, more sophisticated. They can get the answers to many questions themselves, right at their workstations. With all these changes, why do clients need us? The answer? As counselors, to help our business clients avoid legal liability, assist them in managing employees, help them guard their company’s most important assets — intellectual capital and the employees who translate that into dollars — and to provide perspective. The approach is the same for individuals: Can we help them make solid business decisions? Being able to recite the McDonnell-Douglas shifting burdens of proof or expounding on the holding of a case will — at best — get you a yawn and a “so what?” Are we a little anxious at these changes? Sure, but as William Shakespeare noted, “Good counselors lack no clients.” Go ahead, be a consigliere. Shift No. 3: Do Not Pass Go. Go Directly to the Jury — The Cold War is over. It took 40 years for the Berlin Wall to come down, and it seems it has taken almost as long for us to finally learn what the U.S. Supreme Court meant in 1993 in St. Mary’s Honor Center v. Hicks. Some may argue that while the nuances of the Supreme Court’s decision in last year’s Reeves v. Sanderson Plumbing may be debatable, the key issues are decidedly un-nuanced: The stray remarks doctrine now resides in the Smithsonian Institution, and summary judgment is harder (albeit not impossible) to obtain. We’ll see. However it plays out, chances are each of us will be standing in front of juries advocating our cases more frequently. And, if EQ communications matter with clients, multiply it by a factor of a thousand for a jury. So what do we do? Employers need to learn from jury consultants and truly understand what they tell us about our cases (that is, we defend a reduction in force by acknowledging that it was a tough decision and explaining why it was fairly decided to the employee, not by showing why fluctuations of the global economy caused the corporation to make $100 million less). And, we will see increasingly, as Holland & Hart in Denver, firms begin to develop jury consultant services for outside consulting as well as internal use, claiming an area once reserved for touchy-feely psychologists. Shift No. 4: The Pig in the Python — These statistics say it all: This year, there will be 20 million to 25 million employees between the ages of 40 and 60. And the number of employees in the 45 to 65 range will grow faster than any other age group through the year 2006. Like a python in mid-digestion, this represents a huge bulge of potential age discrimination claimants. Couple these inexorable numbers with a baby boomer entitlement mentality and you have an almost limitless pool of potential claims. Sorting through those will make interesting times for both sides of the employment bar. If you think you’ve seen your share, think again, because you haven’t seen anything yet. BLURRED LINES Shift No. 5: Live Long and Prosper — And that’s not all with the boomers. Here’s some startling arithmetic: Baby boomers will create an older workforce plus one more likely to be beset by medical conditions. Add them together and what’s the result? Family and Medical Leave Act, Americans With Disabilities Act and workers’ compensation issues taking center stage, requiring a detailed understanding of employee rights and employer obligations. Throw in some ergonomic issues and you have a new subspecialty in employment law. As the media light shines more brightly on these issues, judges may become more sympathetic to them. And medical and retirement benefits will likewise come increasingly to the forefront — recently we’ve seen an increase in discrimination challenges to employee medical benefit plans by the Equal Employment Opportunities Commission, and it is almost certain that Congress will enact a patient’s bill of rights. With more money sitting in 401(k) and other retirement plans, the Employee Retirement Income Security Act and benefit issues will similarly take center stage. Shift No. 6: The Merging of Work and Home — At one time, the demarcation was clear: Go to work; get a check; go home; somewhere fit in two weeks of vacation. No more. Because all types of employees now increasingly draw emotional benefits from what they do, and because technology makes work tasks performable from any location, this traditional demarcation will blur, if not dissolve entirely. Employment lawyers will have to deal with transposing the old rules (for example, wage and hour laws, OSHA and uniform application of policies) into the home workplace, and coming up with new rules for as-yet-unknown issues. Shift No. 7: Remember These Initials: MDP — Understand the tax treatment of stock options? Got a clue on the portability of benefits? Grasp the rules of drafting contractual commitments? These questions illustrate an important point: Our practices are becoming complex, requiring us to draw upon numerous disciplines. And, while we don’t need to know the answers in as much detail as our colleagues in tax, ERISA and corporate, we need to know enough to be the team leaders on projects calling for this knowledge. If we don’t, then our colleagues may decide that it’s easier for them to learn about employment law, than for us to learn about tax, ERISA and contracts. That’s not all. This was brought home to us clearly during a mediation. At a break, the CEO glanced over and out of the blue asked, “What do you think about 360-degree performance reviews?” Relieved because we just read an article on this topic, we were able to answer the question. But clients increasingly expect employment lawyers to not only be familiar with these management issues, but also to have a point of view on their usefulness to a company. And the day is coming when nonlegal disciplines will be called upon by us to help us do our jobs. Whatever your thoughts on multidisciplinary practice, Victor Hugo was right: There is nothing more powerful than an idea whose time has come. And when clients, through the mechanism of the free market, begin to demand more of a multidisciplinary role from employment lawyers, this shift will be as inevitable as the tides. Shift No. 8: Diversity — Leading the Way — Here’s a disturbing comment from a participant in a 1993 State Bar of Texas task force study: “Women [lawyers] should grow up and stop whining … discrimination is low on a [firm's] list of important problems.” The same sentiment was echoed in the study about minorities. While we wish such sentiments were extinct like the dinosaurs, we can’t swear to it. But clients expect employment lawyers to be leaders in addressing and resolving these issues. Our firms must reflect their businesses, not only because it’s right, but also because it’s good business. What’s a start? Take the following challenge. Commit yourself to learning about how people communicate, how they process information and their perspectives. When you do this, you’ll begin to develop a key ingredient in creating a diverse workforce, namely, empathy. We know it’s only human nature (and many lawyers seem to have an extra special dose in this area) to think that if there is a communication problem, it must be the other person’s fault. That’s human, but it’s not accurate or productive. Shift No. 9: Premium CLE and Mentoring — Let’s return to the Internet for a minute. Because clients can educate themselves on employment law, we can’t afford to train associates on the basics by asking them to write memos on issues the client can access for free. Simply put, clients won’t pay for it. So how do we train new employment lawyers? First, through mentoring. No amount of time spent in the library will teach a new lawyer the hows and whys of practice. So make it a goal to intersperse “teaching moments” throughout your workday, letting your newer colleagues understand the reasoning behind a tactical decision or the explanation of a persuasive argument, and you’ll both benefit. Second, sponsor sophisticated CLE — what we like to call premium CLE — on topics lawyers can’t learn by reading a book. Rather than just talking about cases, develop courses on deposition tactics, communication techniques, and problem-solving and marketing skills. Couple this with mentoring and you’ll start to train the next generation of employment lawyers. Shift No. 10: Think Differently — Finally, employment lawyers are increasingly required to stretch existing laws to meet changing needs. That is only going to continue. Creative lawyering, in just the last few years, has extended the Pregnancy Discrimination Act to employees contemplating conceiving; the Alien Tort Claims Act to American employers allegedly violating human rights overseas; and the Wiretap Act to employers surreptitiously tapping into an employee’s Web site. In an increasingly complex world, our jobs will be to develop the scope of new claims, and to balance the rights of employees with the legitimate needs of employers. Some of you may be saying, “Yes. We agree, but all this is far off in the future.” Not so. As Albert Einstein perceptively noted, “The future gets here a lot faster than you think.” Mark Shank and Michael Maslanka practice employment law at Clark, West, Keller, Butler & Ellis in Dallas.

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