Gruntled Employees

Gruntled at Solo Practice University

One of my big goals for 2010 was to adjust my role as a commentator (mainly over at The Client Revolution) on the state of the practice of law and become more of a change agent dedicated to helping fix it. Today I'm taking a first step in that direction by joining the faculty of the pioneering Solo Practice University. If you're not familiar with SPU you should head on over and check it out. Under the leadership of legal-education trailblazer Susan Cartier Liebel (who also blogs at the ABA Blawg 100 site Build A Solo Practice @ SPU), Solo Practice University picks up where law school left off. One of the most common complaints about legal education is its weakness in providing practical education about how to actually be a lawyer. SPU's got it covered.

What really convinced me to join the faculty was ... well ... the faculty itself. Check them out here. This is a phenomenal collection of big thinkers in the world of legal practice. Students (both active practitioners and current law-school students) have access to these big minds and can start learning how to improve their own practices right away.

I'm teaching a course called "Fixing Your Fees, Fixing Your Practice." In it, I'll be doling out practical advice on how to abandon the billable hour and replace it with open prices. The context for this advice will be real-world examples from our employment-law firm, Shepherd Law Group. If the change away from hourly billing is going to happen, it's going to happen first with the solo and small-firm lawyers. And in my new role as an SPU faculty member, I'm going to help make that happen. So check out all the things you can be learning. Then enroll and start getting the real-world secrets about running your practice that you never got in law school.

Here's a short video (2:38) on the real reasons I've joined this great faculty:

Why FOX can hire Conan as soon as he leaves NBC

People are still talking about the late-night wars at NBC. One interesting thing I keep hearing is that Conan O'Brien is ... well ... kinda screwed. His statement yesterday rejecting NBC's plan to move him and "The Tonight Show" was brilliant and worthy of respect. (See "How Conan O'Brien powned NBC.") But even if he makes good on his promise to leave NBC rather than move, many have speculated that he will not be able to head on over to FOX (or ABC or cable) because of his noncompete agreement.

As far as I know, no copy of Conan's employment agreement has found its way online. Presumably, when he packed up and moved to California to take over the show, he signed an agreement that spelled out his and NBC's mutual obligations. For example, some have reported that NBC promised that it wouldn't run "The Tonight Show" any later than 12:05 a.m. Eastern. (For those of you who've forgotten, "a.m." is Latin for "no longer tonight.") If this report is true, then presumably NBC is not in breach with its plan to run "The Not-Really-Tonight Show" after the reworked 11:35 version of the Leno debacle. (I don't think that's what they're calling it, but it would be refreshing.)

But commentators have suggested that Conan would be bound by a noncompete that would prevent him from competing with NBC for a year or two. See reports here (ironically from CBS, who must be LTAO) and here. The blog "Concurring Opinions" also has a nice write-up of possible contractual issues in the Conan matter here.

But Conan isn't bound by a noncompete.

Let me point out for a moment that I write this without having seen his NBC agreement, and without any actual knowledge of his negotiations. So how do I know that he's not bound? Well, noncompetes are a specialty of Shepherd, our employment-law firm.

I put a hint in the second paragraph above. Go back and reread it. I'll wait. [... tick ... tick ...] Got it? That's right: "moved to California." Conan shoots "The Tonight Show" in Universal City, California. (I need to get a city named after my company.) And California, as many of you know, prohibits noncompetes. Section 16600 of the California Business and Professions Code makes employment-related noncompetes — like the one Conan reportedly has — void.

Now if NBC was smart — and given how they've handled all of this, there's not much chance of that being the case — they may have tried to do an end run around 16600 by placing a choice-of-law provision in the contract. NBC is headquartered at 30 Rock in Manhattan, so they could have insisted in the agreement that New York law govern it. And if NBC got him to sign it back in 2004 when they promised the show to him, that might have made some sense. But not now.

Because in August 2008, New York decided to protect oppressed millionaire TV broadcasters by enacting the Broadcast Employees Freedom To Work Act, which banned postemployment noncompetes for broadcast-industry employees. Oh ... so sad.

Actually, don't feel bad, NBC. Even if New York hadn't gone and done that, there was no way that a California court was going to honor a choice-of-law clause to enforce a noncompete that restricts a California worker (Conan) from plying his lawful trade. Either way, no noncompete is going to stop Conan from broadcasting on FOX or ABC or Telemundo or YouTube.

To be sure, Conan's agreement might have some penalty if he walks out on NBC (assuming NBC didn't breach the contract themselves by make "The Tonight Show" into "The Not-Really-Tonight Show"). At the very least, he could well be walking away from millions of dollars by not finishing out his term.

But NBC can't stop him from working. And how sure am I about this, especially since I haven't read the contract? This is how sure: If NBC sues Conan for violating a postemployment noncompete agreement, my firm will offer to defend him. For nothing. (Not soliciting work here, of course. But if he calls, we'll do it.)

See you after "24," Conan.

How Conan O'Brien powned NBC

(For the definition of "to pown," check out Urban Dictionary here.) (Noob.)

I've got to be honest with you. I've never been a big Conan O'Brien fan. At least, not until today.

This afternoon, the New York Times reported that Conan had rejected NBC's plan to move his "Tonight Show" from its 11:35 p.m. slot to 12:05 a.m. to accommodate Jay Leno's return to late-night television. This is just the latest step in a drama that has quickly spun out of NBC's control.

Some background, in case you haven't been paying attention:

Conan replaced David Letterman on "Late Night" (at 11:35 p.m. Eastern) in 1993, when Letterman jumped over to CBS after losing out to Leno as Johnny Carson's successor at "The Tonight Show." In 2004, NBC announced that Conan would succeed Leno — five years later, in 2009. (I mean really: who makes hiring decisions years in advance? Oh, right. Big law firms. Brilliant.)

This fall, Conan indeed replaced Leno at the helm of "The Tonight Show." But NBC wanted to keep the great comedic talent that is Jay Leno (OK, that's a little sarcasm; I'm even less of a fan of Jay) (good name, though). So it came up with a "revolutionary" idea to create an ersatz version of "The Tonight Show" featuring Leno that would run weeknights at 10 p.m. Eastern. The rationale was that "The Jay Leno Show" would be much cheaper (even paying crazy money to Leno) than to pay to fill five hours of scripted TV dramas during that slot.

But the gamble failed. The show was panned and the ratings tanked. Despite having earlier said that they would give the show a year, NBC panicked last week and pulled the plug. But apparently, they want to have their cake and eat it during late-night too. Instead of sending Leno to the cruise-ship circuit, NBC has decided to move "Leno" (the show) to "The Tonight Show's" time slot: 11:35. But they would shorten "Leno" (again, the show) to thirty minutes, and start Conan's "Tonight Show" at 12:05 a.m.

(The Times has reported in a different article that Conan's contract did not specify what time slot his show would run in. Some have suggested that this was bad lawyering. On the other hand, AP has reported that the contract does say it can't begin the show later than 12:05.)

Of course, the common-sense question is "How can 'The Tonight Show' begin when it's no longer tonight?"

So today, Conan released a statement rejecting the move to 12:05, instantly garnering massive worldwide support on Twitter and in the blogosphere. Now normally, when you hear that someone "released a statement," you immediately think boring nothingness generated by lawyers. But here's where Conan really shined. First, he almost certainly wrote it himself (probably with help, but that's OK). Second, he completely avoided coming across whiny, pouty, angry, or victim-y. Third, he chose not to trash anyone, not even NBC. He favorably mentioned Carson, Letterman, and his "Late Show" successor Jimmy Fallon (who's really getting screwed by being bumped to 1:05, where he could lose both his viewers). Fourth, he spoke respectfully, with much language about the tradition and importance of "The Tonight Show's" six decades following the late local news.

And fifth, and I think most important, he was funny. I don't mean LOL funny; but with a light-hearted irreverence that humanizes him and his message without making the reader question the seriousness of his feelings.

And that's the real trick. Too many people — employers, employees, and their lawyers — hide behind a thin veneer of pomposity, haughtiness, verbosity, and legalese. That never works — ever. All it does is turn off the reader, and may even turn the reader against the writer. Instead, Conan wrote with charm — a perfect blend of humor and seriousness. Now unless NBC backs down and kicks Leno to cable, it has no chance of winning this contest. Conan powned them.

Read Conan's complete statement in the Times article here.

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For more TV-related goodness, check out how "Lost" beat out the President's State of the Union, at our sister blog, The Client Revolution.

Client Revolution hosting next week's Blawg Review

Hey, blawggers and blawg readers!

Actually, as I've said before, I'm not a fan of using the term blawg to mean "law-related blog." The problem with it is that blawg sounds exactly like blog. When you're speaking and you say "blawg," there's no way of conveying that you mean "law-related blog" without also saying something pedantic like "with an A and a W instead of an O." Yeesh.

Anywho, I'm honored to have been invited to host Blawg Review #246 on Monday over at our sister site, The Client Revolution. For those of you unfamiliar with it, Blawg Review is a blog carnival, which comes out every week and contains links to many other blog posts from the past week, often centered around a theme. You can see examples at the main Blawg Review site (but remember that the individual editions are hosted at the hosts' own blogs).

In preparing for this, I need your help. Please submit your favorite blawg posts of this week — either ones you wrote or ones you read. The Submission Guidelines are here.

In the meantime, think of me while you're watching the NFL playoffs this weekend; I'll be here crawling the blogosphere (blawgosphere?) looking for a few dozen gems to share.

"If you treat me with respect, I'll do more for you"

On Sundays, The New York Times runs a business-section column called "Corner Office," which features well-written and well-edited interviews with executives. This past Sunday, Adam Bryant interviewed former Continental Airlines CEO Gordon Bethune. The piece, entitled "Remember to Share the Stage," featured several real-life examples of the kind of management that Gruntled Employees seeks to cultivate. I don't know anything about Bethune beyond what appeared in this piece, and I can't say that I've ever thought of Continental Airlines as a model company, but the advice is solid.

When asked about his most important leadership lessons, Bethune gave a response that is straight out of our philosophy here:

I was a mechanic in the Navy. And mechanics in the Navy are like mechanics in airlines. You may have more stripes than I do, but you don’t know how to fix the airplane. You want me to fix it? You know how much faster I could fix the airplane when I wanted to, than when I didn’t want to? So I’ve always felt that if you treat me with respect, I’ll do more for you.

Seems simple, doesn't it? And yet, many managers and executives and HR pros have difficulty remembering this.

Bethune explained the value of trusting his employees:

The really good people want autonomy — you let me do it, and I’ll do it. So I told the people I recruited: “You come in here and you’ve got to keep me informed, but you’re the guy, and you’ll make these decisions. It won’t be me second-guessing you. But everybody’s going to win together. We’re part of a team, but you’re going to run your part.” That’s all they want. They want a chance to do it.

And he recognized the value of open and truthful communications with his people:

And we never lied. You don’t lie to your own doctor. You don’t lie to your own attorney, and you don’t lie to your employees.

Respecting your employees, giving them autonomy and accountability, and being open and honest with them. A manager can learn a lot by flipping through the Sunday paper.

Read the entire piece here.

• • •

Speaking of open and honest communication: I've been away from Gruntled Employees for a little while, but now I'm back. I appreciate your patience and your continued support.

What do you think of Gordon Bethune's management lessons? Let me know in the comments or on Twitter.