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Simplifying business

Life is complex. So is business. When you simplify your ideas, you’re more likely to get the results you want: workplace happiness, marketing clarity, and business awesomeness. Start here. It’s going to be OK.







Do you manage people?

Firing at Will

Then you need Jay’s new book on the riskiest thing you can do at work with your clothes on: firing employees. How not to get sued, and how to avoid firing people at all. Indispensable for any manager or employer. Get it from Amazon here.



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11 things you should do before firing someone

Firing people is the hardest thing a manager or employer can do. Here’s a checklist to help you make it just a little bit easier.

  1. Don’t fire when angry. Take enough time to make sure that you’re not making the decision for emotional reasons.

  2. Choose the appropriate day and time to minimize additional pain. For example, don’t do it right before Christmas, or on the employee’s birthday, or when everyone else is going to be milling around.

  3. Choose a location in the workplace that offers privacy, with the door closed.

  4. If you’re concerned about an angry or violent reaction, have security or another coworker nearby and ready.

  5. Have the employee’s final paycheck ready for the meeting. Include pay for the entire day of the termination, as well as any other money owed. Make sure your payroll people keep the termination secret.

  6. Make sure you include pay to cover any accrued but unused vacation.

  7. If the employee has computer access, make arrangements to have her locked out of the system while you’re in the termination meeting. Not before and not after. And make sure the computer person keeps the termination secret.
  8. Prepare what you’re going to say in the meeting, but don’t write out an actual script.
  9. If appropriate, prepare a severance agreement to give to the employee. (There’s an example agreement in the book.)
  10. Gather up any material that your state requires you to give to terminated employees. Often, this includes information on unemployment benefits and health-insurance continuation (COBRA).
  11. Decide how much notice you want to give, and how much transition time you need during which the fired employee will stay on. Hint: the answer should almost always be “none.”

All of these tips come from Firing at Will. If you ever deal with employees, this book will make your life easier. To order your copy, click any of the following links:

To read Chapter 1 for free, click the link at the top of the page.

Why arbitration sucks — even for employers

In the wake of Major League Baseball’s firing of longtime arbitrator Shyam Das after he ruled against it in the Ryan Braun case, I thought it might be a good idea to examine why this fashionable alternative-dispute-resolution mechanism is deeply flawed.

Arbitration has long been the norm in labor cases (that is, cases between unions and management). And baseball arbitration is of the labor-law variety. But increasingly, nonunionized employers are choosing to subject themselves and their employees to arbitration. Which is dumb.

“Why?” you may ask. I’m glad you asked. Here is my jeremiad on arbitration, from Chapter 12 of Firing at Will: A Manager’s Guide:

Arbitration is much less common in employment cases, and usually only happens when there is a preexisting contract providing for it if there is a dispute. In other words, the employee would have signed an agreement — often at the start of employment — waiving his rights to go to court or an agency and instead having the dispute resolved by an arbitrator.

The arbitrator is chosen by both sides from a list of potential neutrals. In effect, he acts like a judge. Unlike a mediator, his job is to make a decision at the end of the case.

Many employers and management lawyers think it’s a good idea to have mandatory-arbitration clauses in employment agreements. They think arbitration is a good idea because it tends to be cheaper and faster than the agency-and-court system. They believe that arbitration ends up favoring the employer.

But they are wrong.

Arbitration is a terrible idea, for four reasons. First, the less-formal approach to litigating the case, dispensing with the evidentiary rules, means that the employee can bring in evidence that never would have seen the light of day in court. As I said before, rules of evidence are a good thing if you have a lawyer who understands them. Ignoring the rules turns the case into a free-for-all.

Second, there is no precedent in arbitration. In the court system, the judge generally has to abide by past decisions of earlier court cases, especially higher-level courts. Our legal system is based on the authority of precedent. But in arbitrations, there’s no such thing. Yes, lawyers can cite to past arbitration cases for examples of what arbitrators have done in similar cases. But the arbitrator is free to ignore it.

Third, there is almost no ability to appeal a bad decision. I don’t want to overstate this. While you can almost always appeal a bad decision at an agency or in a court, appeals typically have little chance of success. But it’s even worse in the arbitration world. Yes, you can file the equivalent of an appeal in court to prevent the enforcement of an arbitration award. But you shouldn’t bother: there’s next to no chance of it succeeding.

My final reason is the most important (and why arbitrators want to smack me in the nose). Remember how I said a few paragraphs ago that arbitrators are chosen by the parties? That’s the whole problem. If an arbitrator doesn’t get chosen for cases, he can’t make money. And if he gets a reputation as being too pro-employer, plaintiffs’ lawyers will stop agreeing to use him. (Likewise, if he gets a pro-employee reputation, management lawyers will stay away.) Trust me: this happens. At our firm, we had a list of arbitrators that we would never use because we felt that they were too likely to side with the employee.

In court cases, judges are assigned, not chosen. So the judge needn’t worry about acquiring a reputation of favoring one side or the other. But an arbitrator has some pressure to avoid that sort of reputation. This pressure naturally moves an arbitrator to try to come up fairly even-steven over time, with a rough balance of wins for both employers and employees. Sounds fair, right?

Wrong.

Coming out more or less fifty-fifty sounds like it evenly benefits both employers and employees, but in fact it drastically favors employees. Why? Because employees don’t win half of the cases filed. At the various antidiscrimination agencies, the percentage of cases where probable cause is found tends to run in the 5- to 15-percent range. (There are no reliable figures from court cases.) There are a number of reasons for these relatively low success rates.

For example, discrimination claims are inherently difficult to prove; it’s hard to get inside a manager’s head and find a discriminatory bias. Also, many cases are merely disgruntled employees’ weapons of last resort. Many fired employees bring their cases because of anger instead of an honest belief of having suffered discrimination. So a low success rate is to be expected. That’s why a success rate approaching 50 percent, which is more typical with arbitrators, dramatically favors employees.

So if your employment lawyer tries to talk you into arbitration agreements, ask her if she’s thought about these points.

To order your own copy of Firing at Will, which is a wicked-good idea if your ever have to deal with employees, click any of the following links:

To read Chapter 1 for free, click the link at the top of the page.

Major League Baseball axes arbitrator who ruled against it ◘

Because that makes sense. If you don’t like a judge’s decision in court, you can always fire the judge. No?

What a ridiculous system.

Writers need to write more, faster ◘

In a front-page story with a bizarre exclamation mark in the title, the Sunday New York Times explains that the growth of the e-book market is forcing writers to churn out more books and stories faster. This of course makes me wish I’d learned how to type properly.

But some authors said that even though they are beginning to accept them as one of the necessary requirements of book marketing, they still find them taxing to produce. “I have been known to be a little grumpy on the subject sometimes,” said Steve Berry, a popular thriller writer who writes short stories that are released between books. “It does sap away some of your energy. You don’t ever want to get into a situation where your worth is being judged by the amount of your productivity.”

Maybe that’s why writers don’t bill by the hour. Writers know that their value isn’t based on the time spent writing. Instead, it comes from the messages that their words deliver. Of course, you can say the same thing about lawyers. Huh …

Pitchers, PA announcers, and passion

Two very different stories have dominated Red Sox Nation this week, and both contain lessons for employers everywhere.

The first story is a true tragedy, where 59-year-old Fenway Park PA announcer Carl Beane was killed in a single-car accident after he suffered a heart attack. In the rash of stories that followed his death, Beane was portrayed as a gentle man with a distinctive, booming voice. He was successfully able to parlay his radio background into what he always described as his dream job. He certainly didn’t do it for the money; when he began announcing games in 2003, he was reportedly paid $50 a game. But nearly every story written about Beane following this tragedy focused on how much he loved his job. Devoted Red Sox fans would hire Beane to perform at weddings and bar mitzvahs, or to record outgoing voicemail messages for them. His work was his passion, and it showed in his performance. (For more on how much Beane loved his job, see this terrific article by ESPN Boston’s Godon Edes.)

The second story is a sports tragedy, in that it’s not a real tragedy but sports fans see it as one. It involves Josh Beckett, an arrogant, petulant starting pitcher who used to be the Red Sox ace. Beckett helped lead the Florida Marlins to a World Series championship in 2003, and then did the same for the Red Sox in 2007. But since then, he has lost his elite status and begun pitching like he doesn’t really care. So far this season, Beckett has pitched poorly, owning the second-worst ERA in the American League.

On Wednesday last week, new manager Bobby Valentine announced that Beckett had an issue with his lat muscle and would be skipping his Saturday start against the Orioles. That weekend, because of poor starts and two extra-inning games, the Sox bullpen was called upon to pitch 27 innings. Even an outfielder had to pitch two innings. But Beckett was unavailable to pitch, presumably because of his lat.

A few days later, it was revealed that Beckett had played golf on the Thursday before the Orioles series — the day after Valentine announced that Beckett would skip his Saturday start. The Boston sports media had a field day, and Red Sox fans were livid.

Beckett finally returned to the mound this Thursday and got only seven outs while giving up seven runs on seven hits. When Valentine pulled him in the third inning, the Fenway faithful booed heartily, and one fan behind the dugout was caught on camera mimicking a golf swing.

Then in his postgame press conference, Beckett poured gasoline all over the place and lit it on fire. Metaphorically speaking, of course. Showing incredible tone-deafness, the pitcher defended his golf outing despite his inability to pitch that weekend.

“I spend my off-days the way I want to spend them,” Beckett said to the reporters assembled. “My off-day is my off-day.” He then went on to point out that players only got 18 off-days a year. Which is true, if you don’t count all that time off from October to February. Or all the days during the season when he doesn’t pitch. As he put it, “I think we deserve a little time to ourselves.” (Another Edes story here for more on Beckett and golfgate.)

Here’s a guy making nearly $500,000 a start who apparently doesn’t care enough about his job (which is secure through 2014), his employer (both the team and the fans who pay the bills), or his teammates. Contrast that with Carl Beane, a man who adored his job, even when he was making one ten-thousandth as much per start as Beckett.

When people work for money — even a lot of money — they’ll usually (but not always) show up when they have to and do just enough to keep that job. But they won’t show you the passion that excellence requires. Beckett used to have it back when he was an ace pitcher. Five years, 30 pounds, and 80 strokes per round later, that passion appears to be gone, and with it, any hint of excellence. On the other hand, Carl Beane left us and the job he loved too early, and he left at the top of his game.

Employers: hire passion first and talent second. Passion can turn talent into outstandingess (which may not be a word, but whatever), but talent without passion will eventually land you in the bunker.

The so-called art of billing ◘

Lawyer James Conway describes the art of billing on the site JDs Rising:

This is very simplistic, but you only get paid for things you actually bill to the client. If it doesn’t make it onto the bill, you won’t get paid for it. Remember that quick email you sent from your blackberry? Bill it. Remember that “two-second” question that turned into a ten minute diatribe? Bill it. Remember when your partner walked through your open office door and you had a twenty minute brainstorming session on litigation tactics? Bill it. Unless you express your time, you can’t get paid for it. Further, unless you describe all of your work, your client doesn’t understand all the value you are providing for the fee that you charge.

No wonder people hate lawyers.

It’s not that the “client doesn’t understand all the value you are providing.” If the lawyer thinks that the value comes from the time spent sending a quick Blackberry email, then the lawyer doesn’t understand the value. A lawyer (or any other professional) who understands value prices it. Everyone else just measures time and bills it. And annoys the hell out of their clients.

How to get people to do what you want

Here is the six-minute “LexThink .1″ speech I gave in Chicago in March at the ABA TechShow. In it, I explain the three simple steps you need to take to get someone to do what you want. LexThink follows the “Ignite” speech format: six minutes, 20 slides, 18 seconds per slide, advancing automatically with no control by the speaker.

Enjoy. And if you want the free Result Triangle worksheet, it’s right here. You can print it out and use it right now to help solve whatever problem you’re facing.

This guy’s walking down the street when he falls in a hole ◘

An old Lifehack post called “10 simple ways to save yourself from messing up your life” has excellent common-sense advice on how keep yourself from falling into an emotional hole. Since lawyers are 3.6 times more likely to suffer from depression than other workers, I know a lot of people who could benefit from the advice. Here’s the first of the ten:

1. Stop taking so much notice of how you feel. How you feel is how you feel. It’ll pass soon. What you’re thinking is what you’re thinking. It’ll go too. Tell yourself that whatever you feel, you feel; whatever you think, you think. Since you can’t stop yourself thinking, or prevent emotions from arising in your mind, it makes no sense to be proud or ashamed of either. You didn’t cause them. Only your actions are directly under your control. They’re the only proper cause of pleasure or shame.

The other nine are just as good. Click the title above and read them.

By the way, this post’s title refers to the story Leo McGarry tells Josh Lyman.

Why paperwork feels like paperwork ◘

Blame the lawyers:

Why would it be harder to write a regulation in plain language than in complex jargon? In part, points out Braley, it’s because of the job a regulation needs to do: taking a law that Congress has passed and “dealing with the fine-tuning . . . putting into words how certain conduct is supposed to be governed.” That means a regulation carries a heavier burden than other writing that government agencies produce, like forms and letters. “The lawyers get their hands on them and want to make sure that they’re absolutely foolproof as far as going to court is concerned,” said Cheek.

Nice piece by Leon Neyfakh in the Boston Sunday Globe on the attempt to bring plain English to government regulations.

How simplicity can change the world ◘

Great TED talk (actually, a TED-Ed talk) by “MythBusters” host Adam Savage on “How simple ideas lead to scientific discoveries.” A ton of great information in just seven and a half minutes.

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