Awhile back, I watched another episode of Undercover Boss.  As they often do, the boss revealed himself at the end of the show, handed out thousands to deserving employees who are struggling, promoted one or two who clearly deserved it, hugged his workers and explained why his company was good and pledged himself to make it better.

I hear everyday about employers who do not treat workers with respect. I hear about employers who implement company policies with untrained, uninspired managers. Recently, I attended a legal training at which the well-versed Mike Maslanka spoke.  Mike represents employers and has done so for 30 years.  He reads much about teamwork, leadership and managing for success. I always enjoy listening to Mike.  He talked about how as lawyers, we need to be reminded of our values from time-to-time. If we did so, we could work together better and our country would be a better place.

The military is far from perfect. But, speakers like Maslanka always remind me how lucky I was to serve in the Army. The Army, like all the services, requires periodic training. When I was first commissioned as a lieutenant, I attended the Infantry Officers Basic Course at Ft. Benning, Georgia. We learned the Army values, duty, loyalty, selfless service, and more. We then practiced them and debated them in a class known as “Leadership.” In Leadership class, our instructor let us know our opinion had value. He listened to every opinion, no matter how ignorant. We learned a value not stated, that every person’s opinion had value.

A few years later, I was back at Ft. Benning for the Infantry Officers Advance Course.  As captains, all of us now had substantial experience with troops. All of us had now experienced the ups and downs of trying to lead disparate groups of men and women in missions they may not respect. How motivated is any soldier to stay until midnight getting ready for a 0530 inspection the next day? So, as captains, we spent a lot of time practicing counseling. We would role play soldiers in trouble and how to help them through major crises. We role played how to deal with selfish commanders and obstinate NCO’s. A few years later as a Major, I attended the more intellectual course, Command and General Staff Officer’s Course. I shook hands again with Army values, learned about Army history, and how to work as part of a staff.

At each step of our career, we are, in effect re-trained, re-armed and re-fueled for the wider Army world.  The system is not perfect, but it does produce “workers” who share expectations and who willingly surrender their individuality for a larger purpose.

One Undercover Boss tonight was from Rally Checkers. At the end of the show, he re-pledged himself to teach his workers his company values. Company values lead to greater retention, less re-training, better cooperation between workers and quicker turn-around time for the basic burger.

One thing I learned in the Army, when a leader compromises on one policy or one value, that inevitably leads to compromise on others. I told my son the other day that we tell the truth on the small things because that is practice for telling the truth on the big things. Soldiers and workers see it when we compromise once or twice. They remember.

When I first got to Iraq, we were replacing a unit that was seriously dysfunctional. The member of that unit violated some very basic principles of leadership and teamwork. We had to spend ten days with them, learning their jobs before they rotated back home. We got to know them too well.

One basic rule in the Army is that a leader never eats before his soldiers do. The leader eats last. In the Army, when you are in the field, food choices are limited. There is no McDonald’s on the corner. Food takes on added importance. The commander eats the same meals his soldiers eat. The President might get two scoops of ice cream. But, leaders do not eat what his soldiers cannot eat. The leader does as his soldiers do.  In that unit we replaced in Iraq, I am sure the commander ate whenever and whatever he pleased. Do not be the leader who eats before his people do. Do not be the leader who revels in the perks. The employees see that. They remember.

There is a song about a Scottish soldier who perished during WW I in the trenches. It goes like this (with English translation):

Lay me down in the cold, cold ground

Where before many more have gone

Thoughts of home take away my fear

Sweat and blood hide my veil of tears

Once a year say a prayer for me

Close your eyes and remember me

“Sgt. MacKenzie” by Joseph Kilna MacKenzie.

Every veteran wants to be remembered. The biggest fear when you serve in some far off land is that the folks back home have forgotten about you. Even in Iraq, as closely tied as we were to the home front, we wondered, usually after six months or so in country, whether the folks back home had moved on with their lives and forgotten us.

Now, some folks in San Antonio want to forget the Confederate veteran. Things have changed so much since 1900 when the Confederate monument was erected. Many people find the monument offensive. The monument does not recognize some great general. It represents the common soldier, with his rifle at rest, he points skyward recalling his departed comrades.

It is wrong to suggest the statue was erected to keep African-Americans in their place or to show who controlled the Jim Crow South. Yes, even San Antonio had some Jim Crow laws. But, the statue was built not to overwhelm others, but to recall the sacrifices of those Confederate veterans. Veterans were dying in greater and greater numbers in the 1890’s. A movement spread across the South to recall their sacrifices. The San Antonio monument specifically asks us not to forget the Confederate veteran. It says, “Lest we forget.” It was nothing more than an attempt by the families of veterans to recall their departed loved ones. The state government did not erect the San Antonio monument.

My ancestor helped erect the Robert E. Lee monument in New Orleans. In his diary, he wrote about the public entertainment put on by volunteers to raise money. He said “thousands” came and had to be turned way because the hall was so full. Paula Allen in the Express News explains in today’s paper that bake sales and subscriptions by San Antonio businesses paid for the Travis Park Confederate monument. The city government donated the land. So, no, these monuments were generally not erected by Jim Crow governments. They were erected by average people, like you and me.

In a recent editorial, Josh Brodesky of the San Antonio Express News, and others, have suggested the Confederate veteran was motivated by racism and a desire to maintain slavery. That is not accurate. The veterans are long gone. We cannot now ask them to take a survey and study their motivations. But, James McPherson in his book, For Cause and Comrades, (Oxford Univ. Press 1997), accomplished a pretty decent survey by reviewing the personal letters and diaries of some 400 Confederate soldiers. He looked at the contemporary correspondence and diaries of some 647 Union soldiers and 429 Confederate soldiers. In his career, he explains that having looked at perhaps 25,000 such records, he believed this was a representative sample. For Cause, p. viii. Dr. McPherson is a well known Civil War historian.

According to Dr. McPherson’s study, some 57% of Confederate soldiers espoused patriotic fervor for the South. That is, their service was motivated by patriotism. For Cause, p. 102. Just some 20% of Confederate service members espoused pro-slavery views during the war. For Cause, p. 110. That is still too large a number for us today. But, it pales when compared to Union soldiers who referred to slavery as a motivation for serving in the war. The number of Union soldiers who espoused anti-slavery views was much higher. As the author explains, slavery was a political issue among the Union army. It was discussed and debated more. It was not such an issue among the Confederate army. So, perhaps, if there was more actual debate, then the pro-slavery view might have been higher among Confederate soldiers.

But, the point remains, if they fought to “own people,” they did not discuss it much. And, I can speak from experience. When you are hungry, tired, hot, far from home, you devote much of your free waking moments to why you are here. Why are we in this god forsaken land? If the Confederate soldier was concerned about continuing slavery, he would have said so.

Should it matter what motivated those Confederate soldiers? When I went to Iraq in 2005, I did not stop and say to my commander, “please explain to me the basis for this war?” Sgt. MacKenzie, it is said, died protecting a wounded comrade in the trenches. At those moments, you do not ask why. You simply react. In the song, Joseph MacKenzie, the great-grandson of the sergeant, did not ask for bugles and flourishes to commemorate the death of his ancestor. He simply asked that his great-grandfather be remembered. That is all any veteran can hope for. Say a prayer for those who fell. Recall the rest of us when our times come. We answered the call. We did not hesitate.

Its a tough life working in Big Law. A partner at Wilson Sonsini Goodrich & Rosati in New York became dependent on drugs. Identified only as “Peter,” his former wife wrote about him in a New York Times piece.  Peter worked 60 hours a week for 20 years. He was by all accounts successful. His former wife, Ellene Zimmerman wrote about his life. He constantly stressed over pay, competition and clients. Ms. Zimmerman pointed out that if he had asked for help, he felt there would be ten other lawyers waiting to take his place. The competition was never ending.

In the months before his death, Peter was at times angry and threatening, then remorseful and generous. He would leave messages on her phone, meandering soliloquies. He never sacrificed a client for his family life. He departed any social gathering if a client called. In his last few months, he would sometime lose consciousness. The drugs helped him stay awake, but they took a toll. He died from an infection contracted from a syringe. His ex-wife found him, lying dead on the floor, with half-filled syringes, crushed pills, a spoon, a lighter, a bag of white powder and a tourniquet next to him. His last cell phone call was to a conference call, vomiting, unable to sit up, slipping in and out of consciousness.

At his funeral, many of the attorneys attending the service, were bent over their cell phones tapping out email to clients and attorneys even as they laid to rest one of their own who could not stop tapping out those same messages. Ms. Zimmerman wrote a book about her former husband’s death. In a recent ABA survey, 20% of judges and lawyers reported alcohol problems, 28% reported problems with depression and some 75% skipped the question on drug use. See ABA Bar Journal article.

My old professor at Tulane Law School, Luther McDougal, would jump in at times like this and remind us, “Its all about greed. About Greed.” That would signal it was time to move on to another topic.

A female passenger of Lyft has sued the ride-hailing business here in San Antonio. She alleges she was raped and sexually assaulted by a driver late one night. The woman was intoxicated. She blacked out a few times. She asked to pull over to vomit. When she got back in the car, she woke to find the male driver assaulting her. She started punching him. The driver took her home. When she got home, she texted a friend the license plate number belonging to Refugio Campos. See San Antonio Express News report.

The passenger filed a report with the San Antonio Police Department. The suit has been filed in state district court. It will be a problematical lawsuit. Lyft and Uber claim their drivers are independent contractors. So, suing Lyft itself will be difficult.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

To mark Memorial Day, I would also like to recall two area San Antonio heroes. They were both fiends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did very well: serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.  Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen. But, its also a good time to thank a vet for his/her service.

 

The trial date for SGT Bowe Bergdahl has been set for October 23, 2017. The trial will be held at Ft. Bragg. His attorneys had tried to dismiss the case due to Pres. Trump’s prejudicial statements during the campaign. The judge denied the motion. But, the attorneys have appealed the decision. See Task + Purpose news summary.

Back when I was active in the Nationals Guard and Reserve, I would visit other Army units to coordinate exercises, gather information or for some particular need. I soon noticed that when subordinate members of the unit would freely chat with an unknown captain or major, that was very likely a strong unit, with good morale. If the lower ranking member would not chat with me, that indicated problems. The military is like a large corporation, with different corporate culture in each unit.

In today’s corporate culture, social media has made it easier for employees to chat publicly about their experiences. Uber received a lot of blow back when one engineer described the ride-sharing company as chaotic, sexist and overly aggressive. Susan Fowler wrote a blog post about her year at Uber. The attention has grown so much that it may affect the value of a likely IPO later this year for the business. See San Antonio Express News report.

Ms. Fowler mentioned how she was propositioned by a male senior manager and that Human Resources often protected “high performers” at Uber. Consumers who notice issues between employees notice that tension, according to research at Georgetown University. That research found consumers react strongly to perceived problems with a particular brand. Christine Porath, the Georgetown researcher, also found that companies that devoted more attention to the welfare of its workers performed better during the recent economic crisis.

Uber’s CEO reacted to Ms. Fowler’s blog, saying the company would heal the wounds and build a better corporate culture. Yes, employees, all employees, matter. Human Resources, often overlooked, is on the front lines of that culture. In military terms, we would describe HR as a “force multiplier.” HR provides much more value that simple processing of forms. It makes the other departments better. The corporations, and military units, that appreciate that will become much more productive.

 

One of the great things about practicing law is working with people. We see people often at their worst, sometimes at their best, but always as their genuine selves. From a Texas Bar Journal, I find this story about two spouses who prosecuted their own divorce. The two spouses wrote their own divorce decree. Since they were planning to continue to share the same house until it was sold, they came up with some rules on sharing that household, which they hoped would minimize friction:

  • Husband shall exceptional care during and after Dallas Cowboys games to not break any material objects in the house and to remain cordial to wife, who is not responsible for the outcome of sporting events (emphasis in the original).
  • Wife shall endeavor to give Husband the space he needs to recover from Cowboys losses.

That is just two people trying to work things out…..