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Ellen Pao lost her gender discrimination suit against venture capital firm Kleiner Perkins Caufield & Byers, but her case brought gender discrimination and implicit bias into the spotlight and the forefront of business conversations. It has also brought to light how much colleagues play a role in an individual’s success.

During the trial, Harvard Business School Professor Paul A. Gompers testified as a paid witness for the defense. He testified that Kleiner Perkins did a better job of supporting women when compared with the rest of the venture capital industry. While his testimony supported Kleiner Perkins, it also emphasized how bad the industry is as a whole in terms of supporting and advancing women.

Gompers conducted a study in 2014 called Gender Effects in Venture Capital. In that study, he found that women were not performing as well as men in the venture capital industry because women were not getting the same level of support from their colleagues as men. Women receive less formal and informal mentoring and feel an implicit bias against them.

Although the focus of the Gompers’ study and the Pao case has been the venture capital environment, the same argument can be made for nearly every traditionally male dominated industry. And, the fact is that most discrimination at the senior executive and high earning level is swept under the rug through the use of negotiated exit packages with strong confidentiality language.

As a lawyer who works with businesses and senior executives, I have seen first-hand that women who make it to the top of their industries implicitly know that they are expected to accept a certain amount of bias and either find a way to work around it or take a package and move on to another gig.

I doubt Ms. Pao’s claim will inspire more women to fight the fight (especially since she lost and may have significant challenges in returning to the venture capital world). But her case has ignited a public conversation many women have been having behind closed doors for years.
We can only wait and see if the conversation will ignite action within companies. If not, we will have to just wait to see more women take the risk and open up their own firms.

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A recent Illinois Appellate Court ruling – Prairie Rheumatology Associates, S.C. v. Francis – will benefit employees, while also providing some clarity regarding the law of non-compete clauses.

During the summer of 2013, the Illinois Appellate Court in the First District made an important decision in Fifield v. Premier Dealer Serv., 2013 IL App (1st) 120327.

The Appellate Court ruled that a non-compete clause is invalid unless an employee works at least two years for the employer. We’ve previously discussed the landmark decision on our blog here, here, and here.

Recently in Francis, the Illinois Appellate Court in the Third District confirmed the previous ruling by stating that there is a “2-year rule of thumb” requiring employees to work at least two years for an employer before a court will enforce a non-compete provision. (The recent Francis decision is available here).

The only exception to this “rule of thumb” is if an employer provides the employee some other benefit to agree to the non-compete provision.

Background on the Francis Decision

  • In Francis, our law firm represented a rheumatologist who worked 19 months for a practice group. Her employment agreement included a two year non-compete clause which prevented her from working as a rheumatologist within fifteen (15) miles of her previous job.  The rheumatologist’s previous employer also made several promises to her specifically in exchange for her agreeing to the non-compete clause.
  • The Appellate Court in Francis ruled that the non-compete was invalid. First, the rheumatologist did not work the required two years, she only worked 19 months. Second, the former employer failed to fulfill the promises it made to the rheumatologist.

Future Implications

  • This new decision is critical because it is the first Appellate Court in Illinois to explicitly follow the previous 2013 ruling. Prior to this Francis decision, some courts outside of Chicago were unclear about the proper standard when determining whether a non-compete clause was valid. This new ruling should provide clarity.
  • Another key factor is that in the previous 2013 ruling, the employee worked for the employer for only three months. Thus, many commentators believed that a court would not apply the two year rule to an employee that worked for an employer for close to two years. However, in Francis, the rheumatologist worked for 19 months, which the Appellate Court stated was “5 months less than the general 2-year rule of thumb.”
  • Finally, the recent decision provides employers with insight on how to enforce a non-compete clause when an employee works for an employer for less than two years. According to the decision, a court may enforce a non-compete clause if an employer gives an adequate benefit to an employee specifically for the non-compete provision. However, there will be some ambiguity regarding this part of the decision because a court will have to determine if the benefit the employer gives to the employee for the non-compete provision is adequate.
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A career path provides the necessary direction to achieve success. When I’m traveling somewhere new, I search for directions on my phone. There are several different paths I could take, but my goal is to find the most effective.

Similar to traveling, there are several different paths we can take to achieve our goals throughout   our careers.  Creating a map – or a plan – is critical to ensuring that we actually reach our destination.

But how do you go about doing this?

1. Self-Reflection is Valuable.

One of the most important ways to achieve success is to determine our goals.  To effectively determine our goals, we need to evaluate our selves.

What are your best skills?  What do you want to achieve?  What processes do you think will make you happy?

It is important to be critical during this process, and to involve someone you trust to give you an honest assessment.

2. Research.

Research is helpful in several different ways.  Our goals have to constantly evolve as the world around us changes so that we stay ahead of trends.

In 2006, the real estate market was booming, and real estate could be a lucrative career.  In 2009 – that was not necessarily the case.  It is necessary to constantly self-reflect in the context of a changing environment.

Research is also helpful to determine what steps are actually necessary to achieve our goals.  For example, if you are considering pursuing a MBA, it is important to talk to professionals who have MBAs, and also those who don’t, in order to compare their experiences

3. Be SMART.

Make goals that are Specific, Measurable, Actionable, Realistic, and Timely.  Establishing both long and short term SMART goals helps us stay on the necessary path.

The value of these goals is that they are objective and allow you to measure the results.  Another benefit is that SMART goals help people stay focused and hopefully motivated.

4. Continue Professional Development.

Dedicate at least sixty minutes per week to professional development.  This time could include networking, studying the market, or conducting other career related research.

Meeting other professionals is also helpful in acquiring new business, and even job prospects.  Executives need to stay ahead of trends by increasing their own education.

5. Seek Advice from Trusted Advisors.

Finally, seek advice during each step of the process.  Look to trusted advisors to help determine your goals, and necessary steps to achieve those goals.  Consult with an attorney to review all legal documents such as an employment agreement, or if you decide to start your own company, the documents necessary to launch your business.

 

Photo Credit: Kris Mouser-Brown via Flickr Creative Commons

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Exec Blog March 9 Image_  Prior to becoming a lawyer, I spent a few years   working in a large corporation.

  I noticed right away that there were certain   employees who quickly rose to the top and were   known throughout the company, while countless   others, many who had been with the company   for over a decade, were stagnant.

  Why was this?
 

I quickly learned that in large organizations, it’s easy to become a small fish in a vast ocean.
You have to work extra hard to get noticed and stand out. And you need to take more ownership over your career and growth prospects.

I got to know some of these “superstars” and learned how they advocated for their growth.

Here are some tips I learned that can help anyone advance their skills and career in a large organization:

Master a unique set of skills.

I knew one employee that started out as a consultant on a project. He was with the project from its inception and had a unique knowledge base. After five years of working with his consulting company, the contract was given to a competitor. However, because of this employee’s unique skill set, many managers within the department raised an issue with losing this individual who possessed a particular knowledge base specific to a large project.

Because of his unique skills and knowledge, he was able to not only have the company pay to get him out of his non-compete, but was also provided with a great compensation package. Shortly after joining the company, he was quickly able to move up the ranks and selected for specific projects.

Participate in extracurricular activities.

Most all of the “superstars” I knew participated in company initiatives outside of their specific job duties.

For example, our company was a big supporter of a major charity. These superstars stepped up to the plate to help lead charity initiatives. Through these activities, they became visible across the organization and were able to display their leadership skills.

Don’t be afraid to ask for help.

A mentor can be a valuable resource if used in the right way. A mentor relationship is not helpful if it is forced. It is best to find a person with whom you have a genuine connection and wish to emulate.

The best mentorships are those where both the mentor and mentee are able to benefit. Often times the younger mentee can provide insight into technological innovations or information related to recent business developments.

You may also want to consider going outside of your organization and enlisting the help of a professional career coach.

A large organization presents many opportunities for growth with a myriad of career path options. However, ensuring you are visible within the organization can be difficult. By working on mastering a unique skill set, volunteering for company initiatives, and seeking the aid of a mentor, you should be able to advocate for your growth and achieve success.

 

Photo Credit: Steve Wilson via Flickr Creative Commons

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I have been practicing labor and employment litigation for ten years and have experienced more than my fair share of stress. All professions have their ups and downs. Legal work, however, can have its own stressors. Every day, we have to bring the energy to empathize with clients undergoing major upheavals in their lives. We also have to function while under the pull of constant, ever-conflicting demands: from clients, opposing counsel, bosses, judges, and of course, our (often neglected) friends and family. As much as we try to avoid personalizing the legal woes of our clients, that is a constant risk and a huge drain of energy. The fact that we, well, get into arguments with people for a living can be its own, unique stressor.

So how do we deal? We have many adaptive mechanisms, some of which are more skillful than others. Some of us live for the end of the work day or our next vacation, grasping at whatever we think will be more pleasurable than the practice of law (which, for some of us, is just about anything). The trouble with this “grass is always greener” attitude is that we often find that our work stressors have a habit of following us everywhere we go. The advent of the smart phone certainly doesn’t help – it’s like we have taken our most needy and annoying client with us on our trip to Hawaii. It’s also inevitable that these pleasurable experiences we long for won’t last and this can cause us some further stress. Think about your attitude on a Friday night versus a Sunday night if you would like an obvious example.

Some of us deal with the stress by dulling out. Modern life offers us so many opportunities just to forget about things. Have you noticed how many people on the train are completely glued to their phones? A llama on a unicycle could roll through the car, and maybe only one person out of fifty would notice. For lawyers, substance abuse is an increasingly common problem as more lawyers seek ways to dull themselves to the stress. Apart from the medical and social drawbacks of excessive substance use, there’s one less obvious danger: by dulling out, we miss our lives. We may be “just getting by,” but basically, we’re just asleep.

It seems like stress has followed me around like a loyal dog since graduating from law school. In addition to everyday work stress, I have also experienced a divorce, the challenges of being a single parent, and many other personal ups and downs. Many other lawyers have experienced the inevitable cycle of enthusiasm and burn-out, and the instability that can bring. Over the past ten years, I have also become an expert at misguided adaptation strategies. If it’s maladaptive and bad for you, I’ve done it. I suffered, my family suffered, and my clients suffered. It was not a healthy or enjoyable place to be.

Right in the middle of one of my more ill-advised quests for stress relief, I met another lawyer (and single parent of three) who practiced meditation and mindfulness. Prior to that point, I had never been a “spiritual person” and meditation seemed much too “out there” for me. However, since nothing at all was working in my life, there was nothing else I could really try. So, I simply decided to suspend my disbelief and give it a go. I found a meditation center, received some basic instruction, and sat down and shut up.
The type of meditation I learned and now practice derives from one of the Japanese traditions of Zen and is called “just sitting.” We take a specific sitting posture that helps with stillness and stability (which can be easily modified for sitting in a chair), face the wall, and keep our eyes open. Then what? I was surprised to learn that that’s basically it.

When we meditate, we’re not trying to get from Point A to Point B. Rather, we just sit with whatever arises, without grasping after the “good parts” and pushing away the “bad parts.” What arises? Anything. Sights, sounds, smells, sensations. Since we’re initially not used to sitting still for a long period of time, we often notice twinges in our knees and back more prominently than other things. We simply notice all of these things and let them fall away on their own, as they inevitably will.

What about thoughts? After we meditate for a while, we notice that thoughts are no different from any other sensation we notice while we sit – they come up, stay for a while, and then fall away. They’re a bit like passing weather. When we find ourselves caught up in a train of thought, we simply notice that and return our attention to the here and now. Meditation is not about stopping thought – since that would be impossible anyway – but it is about not being caught by thought. As a meditation teacher once said, “don’t believe everything you think!”
During meditation, we don’t judge ourselves, gauge how “well” we’re doing, or question whether we’re “doing it right.” We don’t have goals. Rather, we just rest in non-reactive presence. That’s it. A friend once said that meditation involves “giving the ego a busy signal” for a while, and I really like that analogy. We sit with no other purpose than just to sit, even though there is likely something more conventionally pleasurable or “productive” we could be doing.

As lawyers, virtually all of our professional activities are both analytical (we’re trying to figure out the best way to help our clients, win the case, one-up opposing counsel, etc.) and goal-oriented (we want to win the case, get the settlement, help make new law, etc.) Come to think of it, most of our personal activities are both analytical and goal-oriented as well. Since meditation is neither analytical nor goal-oriented, it’s probably one of the most counter-intuitive, radical, and refreshing things we could ever do. It completely turns our drive on its head. Since lawyers are notoriously driven people, dropping that drive for even a few moments can bring a tremendous sense of relief.

Of course, even though we do not sit in meditation with any particular goal in mind, meditation has obvious benefits. Most people report feeling significantly relaxed after they first attempt meditation. There have been numerous scientific studies detailing its positive effect on the brain. It helps with concentration, helps teach us about the inevitable nature of change, and helps us to see the insubstantial nature of our thoughts. Lawyers in the midst of a feud with opposing counsel could particularly benefit from this last one!

I now meditate on a daily basis, work one-on-one with a Zen teacher, and practice periodically at a Zen monastery. Admittedly, I have taken things a little overboard. However, we do not need to do any of those things to benefit from meditation and mindfulness.

I look forward to offering basic mindfulness meditation instruction at the upcoming Alliance for Women monthly meeting and to help introduce lawyers struggling with stress to this practice. If you have any questions about mindfulness, meditation, or attorney stress relief, please contact me.

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Salary negotiations are notoriously difficult.  In fact, many employees forgo negotiating all together and simply accept what’s offered to them.  The difficulty often occurs because employees generally don’t know what they should ask for or how to go about asking for it.

Whether you are accepting a new position or simply seeking a raise in your current role, here are some ways to help you make the most of salary negotiations:

1. Know the market

Research what the average salary is for your position in your industry and be prepared to use this information to negotiate a higher salary.  The Bureau of Labor Statistics is a great resource to start with, as are websites like Glassdoor.  Knowing the average salary will help you make sure you are paid your worth.

In addition, pay attention to your industry and specific employer.  Are you in a growth phase?  Did you just secure a large client? If your employer is doing well financially, this can also help support your case for a raise. 

2. Tailor your approach

Is your boss more perceptive to visual or auditory communication?  Does your boss respond more to emails and memos, or a casual conversation?  Be sure to present your request in the medium that your boss will be most receptive to. 

If you are being offered a new position, you may not know the answer to these questions.  In such a situation, a telephone call is usually the best way to go, as you can listen for verbal cues and tailor your approach accordingly. 

3. Show your value.

You need to advocate for yourself and make sure you highlight your unique skills and talents. 

If you have more relevant experience or education than the average candidate, you should highlight this fact.  If you’ve been working for your employer for a while, it is a good idea to take note of the achievements and contributions you have made throughout the year. 

Refer to these achievements and contributions to show the value you’ve added when asking for a raise. 

4. Present options. 

If money is not an option, look at negotiating compensation in-kind.  Perhaps you could use more time off, or would like to work from home.  There may be other options that will improve your quality of life. Don’t limit your negotiation to you salary alone. 

5. Look beyond the here and now

When negotiating, don’t forget to think about how you may be affected if you leave this role.  Many times, it is easier to negotiate a reduction or removal of a non-compete at the outset of employment than when you actually leave. 

Photo Credit: 401(K) 2012 via Flickr Creative Commons

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Your company or your boss makes a verbal promise about payment terms, severance agreements, and other important factors related to your employment.  However, time can change everyone’s memory, and intent.  A promise that means one thing could be remembered completely differently years later as a lucrative severance package turns into no severance package.  Thus, it is always critical to put key terms in writing in a formal employment agreement.

There are several benefits to ensuring your employment terms are in writing. 

  • First, writing prevents ambiguity. The terms become definite and clear. This can prevent people from forgetting the exact terms years later, and help ensure that terms are accurate.
  • Second, a formal employment agreement can ensure legality and prevent disputes.  The problem with an oral agreement can be a lack of witnesses to verify the terms.  By having everything in writing, the terms are definite even years later. 

Before signing an employment agreement, you might want to review it with an experienced employment attorney to ensure you understand all of the terms.  Review the non-compete and non-solicitation language, the compensation terms, the vacation policy, any severance provided, and understand how the agreement can be terminated. 

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If you’re an executive and have direct reports, you should make sure you have your company’s HR department on speed dial.  As much as you may be tempted to handle complicated employee problems on your own, HR is there to help.  Not only can HR help make sure your employment practices comply with existing law, but HR can also help you navigate various employment issues with ease.

When should you consider contacting HR?

Contact HR when you hire a new employee

The hiring process can be a legal quagmire.  What can you ask about during an interview?  What promises can you make in an employment contract?  Can you ask your new hire to sign a non-compete agreement?  What tax and immigration paperwork do you need?  Don’t go it alone and contact HR as soon as you consider hiring someone new.

Contact HR when you discipline a new employee

There are many best practices to follow when disciplining an employee and HR can help.  HR can advise you on the type of documentation you need to help support your decision to discipline.  In general, the more documentation you have, the better protected from legal liability you may be. 

Contact HR when you fire an employee.

Like the hiring process, firing an employee can raise a host of important practical and legal issues.  Should you offer a detailed termination letter?  Should you offer severance?  Do you have to pay an employee for unused vacation time?  Should you agree to give an employee a positive reference?  Again, HR can help.

The intricacies of management can be complicated enough without worrying about legal problems.  Don’t hesitate to leverage your company’s HR department to help keep you compliant. 

Photo Credit: Deb Nystrom via Flickr Creative Commons

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Even though the economy has been steadily improving, looking for a job can still be very disheartening.  Especially for executives, a job search may last weeks or even longer.  Above all, it is important to stay positive and think strategically about how you can accelerate your job search.  This post describes five ways that you can re-energize your job search in the new year.

Revamp Your Resume

While it’s essential for your resume to be accurate in every way, it is more than just a fact sheet about your life.  Use active, persuasive language to explain your experience and how you helped contribute to your previous employers.

While it may be cumbersome, you may consider using multiple resumes if you are targeting more than one employer in your job search.  Highlight the experiences and skills that would be most relevant to each potential employer.

Sharpen Your Skills

If you have been out of school for a long time, you may not be fully aware of new developments in your field.  Consider taking a continuing education course that will help you to become more competitive in your field.  Your new skills can also be a great conversation starter during your next interview.

Volunteer

Not only does volunteering allow you to give back to the community, it is a great way to network with fellow volunteers.  If you are trying to change industries, volunteering may even give you the opportunity to gain valuable, on-the-job experience. 

Work with a Professional Career Coach

Especially if your other strategies have not panned out, working with a professional career coach could prove to be an excellent investment.  A coach could help you come up with a custom plan to help you take the next step in your career.

Find New Ways to Network

Networking can be more than just attending professional events.  Sites like LinkedIn can be a great resource for networking.  Email listserves relating to your chosen field can also be extremely helpful.  Be creative and branch out.

Photo Credit: Kate Hiscock via Flickr Creative Commons

 

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Job searches suck.  There is nothing worse than sending a document that attempts to meticulously describe the professional you out into the abyss and never hearing back.  And, even when you pivot, stop sending out cold resumes, and start working your network, sitting with strangers and trying to sell them on your skills is not much more fun.

Why No Offer?

There are tons of reasons why some people remain unemployed for extended periods and others don’t.  Sometimes the reason is illegally discriminatory (i.e., age, gender, race, sexual orientation, parental status, religion, disability, national origin, etc.).  Sometimes the reason is legally discriminatory (i.e. bias against the unemployed, bias against the overweight, bias against the style challenged).  Sometimes the reason is a lack of skill or training.  But, many times, job seekers are in control of the factor that most influences whether they will find another job:  attitude.

Look Forward

We have represented hundreds of executives who have had claims against their former employers.  Whether resolutions are litigated or negotiated, it is always the executive who looks forward and takes control of his/her career that moves on to something better.  Being angry and holding onto blame about a bad separation or even a bad interview doesn’t hurt the employer.  It hurts the job seeker.  Have you ever had to interact with someone who has a chip on her shoulder?  Would you want to be that person?  The top 3 reasons you’re not getting hired all relate to your attitude.  You can’t change the biases of prospective employers, but you can make yourself a pleasure to be around.

Top 3 Reasons Your Attitude is Preventing You from Being Hired

  1. You are not engaging with the right people in the right way.  Job search networking does not mean you should tell everyone you know that you are looking for a job.  You should not be sending everyone your resume.  The right way to engage with your network is to be a resource for your contacts.  People want to help people who want to help them.
  2. You’re getting desperate.  Looking for a job is like dating or making friends.  Desperation is a turn-off.  It’s one of those things you silently communicate without even noticing.  It shows in your resume, cover letter and emails.  And, most obviously, it shows in your body language.  You might think that being an executive puts you beyond this, but you are wrong.  Executives are the most at risk of unknowingly communicating desperation.  People who devote so much time to their career and even define themselves by their career are very likely to be shaken by a job loss.  It can be an ego buster for anyone.  The best way to overcome this hurdle is to contact a brutally honest friend, videotape yourself, or hire a professional and practice role playing.  You don’t want to come off rehearsed, but you do want to be prepared and confident.
  3. You’re too cocky.  Over confidence is not much better than desperation.  No one wants to hire someone who clearly thinks they are too good for the job.  Humility is not desperation.  Be willing to ask questions, listen to the answers and learn.  Over-confidence means you are focused inward.  Show that you are truly interested in the prospective employer, its current employees and its opportunities for growth.  Do your research and be prepared with thoughtful questions.

Even though we solve legal problems first, we want our clients’ careers and businesses to thrive.  If you are struggling with your job search, contact us for additional resources.