9:27 : Not sure if going down the tip-pooling argument was a good move there.

9:30 : Don’t wait for the translation: YES OR NO! (;

9:35 : I guess Calchannel didn’t anticipate how popular this would be. Video is choking. Hard.

9:41 : Steve Jobs would fire the person in charge of this streaming. I may have to “unlive blog” it later…

9:55 : We’re discussing statutory and administrative interpretation here. There seems to be some frustration from the bench. Angels on the head of a pin.

10:01 : I think there is right now on display the peril of being highly specialized in an area of law: you get used to a set of presumptions and jargon that not everyone—judges most importantly—shares.

10:05 : Important discussion whether the court would be “clarifying” existing law and retrospective application.

10:09 : The UCL Practitioner ends arguments with a clear and well-spoken presentation.

I know the party-line. Smartphones in the workplace are bad. For all the same reasons we always hear why technology [insert name here] is bad. Workers are just looking at porn. Smartphones make people downright rude at work.

But I think this is just Luddite finger-wagging. Check out this article from The Wall Street Journal:

Don’t feel guilty about browsing the Internet at work—turns out it may actually improve your performance.

Hmm. That sure goes against everything everyone thought they knew about workplace rules. I thought it might have just been me, but I’ve known for many years that changing my focus to something for a few minutes leads to extreme bursts of creativity and decision-making, while grinding things out can give me writer’s block and accelerate fatigue. Turns out it’s a general phenomenon.

Business owners have to have Internet connections. In order to comply with document retention needs and balance it with security and privacy, an awful lot of extra layers of hardware, software, and expenses have to be added.

But you don’t face the same security risks when users are browsing the Internet on their own smartphones or iPads. All of your data can remain locked-down and extra security policies won’t keep people from getting at any website. They’re not using your bandwidth—and it sounds like they’re recharging their batteries.

Sounds like a win-win to me. Obviously, this doesn’t mean that you should allow people to indulge their excesses. Work still must be done. Human contact is still required.

But think twice before someone tells you to get off their lawn freak out about the latest gadget. They might be wrong and they’re probably swimming against the tide anyway.

Robert Weideman blogs so I don’t have to on the new laws this year.

I would just add that this is far from what the doomsayers thought would come about. Again.

Here’s some more  and even more from Greg at Shaw Valenza. Greg, you don’t really believe that these laws create or kill jobs, do you? I mean, at least in the face of things like sitting on cash and unwillingness to expand or banks to finance loans, things like adding lines to paystubs are noise in the system. Oh, I mean other than our jobs,right?

What none of the employer-side blogs echoing their clients complaining about new laws says is that this is more work for us! Not just the plaintiff guys and the gubmint ain’t hiring, so…

Update: Facebook Integration!

From the San Jose Mercury News:

The federal government said Wednesday it is suing a Panda Express restaurant in West San Jose for making its Latino workers clean toilets while Asian employees stood by and enjoyed an easier workload.

Living in a highly agricultural area as I do, I see Latino workers doing less desirable jobs every day—and working harder than I can imagine. But somehow I wonder if this case is really about the use of Latino workers, or if it’s about the use of the Asian workers. Bear with me.

I have represented a number of Asian restaurants. Once, as I was trying to go through some payroll records with him, a deputy labor commissioner told me that they—the DLSE—had been having trouble with Asian restaurants. In the course of the conversation, he made it clear that they were on a sort of campaign to look at Asian restaurants. Now, granted, the DLSE is not charged with enforcing the EEO laws. But I’ve wondered ever since if that wasn’t some kind of civil racial profiling.

The Conservative National Review Online thinks so. The liberal Mother Jones takes NRO at its word, but points out that while the batting average of unions in elections has gone up, the overall number of recognition votes has gone down, way down.

Given those numbers, the huge decrease in the numbers of overall union members and the goings on in Wisconsin and Ohio, it’s hard to credit a “labor ascendent” meme. But that’s the tendency of everyone in this: claim you’re winning when you’re losing and claim you’re losing when you’re winning.

The effect of this case will be more, smaller employment lawsuits against larger businesses and will have no impact on cases against smaller employers.

Best case for Wal-Mart: they just turned frontal combat into guerilla war. The Plaintiffs’ bar big boys may be decrying this decision, but smaller shops are seeing dollar signs.

The Supreme Court may have removed the existential threat to Wal-Mart that this case represented, but to call for a Chamber of Commerce victory parade over this case is to betray the tribalness of the two sides of the bar. Defense lawyers like it when their brethren win and vice versa. And let’s face it: more cases spread out to more courts and more lawyers on both sides doesn’t hurt either side, does it? But if you care about your clients, this is no big win.

…you can’t do that.

And maybe I’m getting a little out of date, but I don’t believe being “exempt” means you can get paid nothing.

In today’s New York Times:

Many of the jobs lost during the recession are not coming back.

Period.

For the last two years, the weak economy has provided an opportunity for employers to do what they would have done anyway: dismiss millions of people — like file clerks, ticket agents and autoworkers — who were displaced by technological advances and international trade.

On the one hand, having a flexible, technology-based practice that has no need for administrative employees is the best thing I ever did. I doubt that the cost of a worthwhile assistant, all the necessary equipment and space would actually net me any money. On the other hand: what on earth do we do with these people? These aren’t welfare queens. These are people that have worked most of their lives, mostly in jobs that were not foreseeably going to be eliminated any time soon. This seems to happen with great frequency in our globalized economy.

My guess is that we need—more than expanded unemployment or other safety net measures—a massive expansion of community colleges with programs focusing on career switches for adults instead of mostly two-year degrees for teenagers. Yet community colleges are being slaughtered in California lately.

Is now under investigation by the police. The legally handicapped tech press is having trouble doing a good legal analysis, but they are belatedly coming around to see that the thorniest issue here might be a trade secrets act lawsuit. I haven’t seen anyone pick up on the criminal side of the trade secrets law yet, mostly they are just arguing over the receipt of stole property issue.

The cops are into this, but it raises some interesting issues. Take a look.

Your business may still qualify for tax credits under the health care reform bill even if you have more than 25 employees and even if their average salaries are more than $50,000.

Why?

Well, one thing that should be pointed out about the language for qualifying for the small business tax credit in the health care reform bill:

A full-time “equivalent” employee is one who works 2,080 hours per year, but in doing the calculation, you do not have to count more hours than that per employee. (§ 1421 (a)(2)(B) of the bill which will be 26 U.S.C. § 45R tomorrow at 11:15 EDT). This makes it easier to qualify for the $50,000 per year per employee threshold. And part time employees, naturally, won’t “fill up” one spot, so 50 people working less than half time may still leave you qualifying.

You can find out the numerous other details elsewhere, but I have not seen this reported widely.

In the absence of any case law developments, I’d like to make the following conjecture about the health care reform bill that appears to be headed for passage this weekend: once it starts to have a non-trivial effect (2013? 2014?), it will result in a net increase in employee mobility.

In your long-range planning, consider that.

UPDATE 3/28/2010: I should Google before I conjecture. Apparently, this phenomenon has been very closely studied. Strangely, it just wasn’t part of the non-debate about reform. According to the article I linked to, 1.6m people are locked into jobs they don’t want because of reliance on health benefits.

Strategy derives from the Greek word στρατηγός “strategos” which more or less translates to general, as in commander of an army (though the Greek equivalent had vast civil powers). It is on a bigger picture level than operations or tactics, but not as all-encompassing as “grand strategy.”

For the most part, it is not taught in law school, at least not as a subject in and of itself. Yet it is part of the basic curriculum for all modern military officers.

Money tends to dominate civil litigation strategy. The party with the most money often takes on an attrition strategy—the kind where you see motions challenging everything from the service of the summons to pages of boilerplate objections in form interrogatory responses. Ultimately, as in warfare, attrition can be defeated by maneuver, especially if at the end of the day you have dominant facts on your side. So, giving battle early on favors the moneyed party, giving battle later favors the factually superior party (not at all necessarily different).

As most of us implicitly know, this situation is altered a lot by attorneys’ fees cases, where the risk of joining battle can be almost entirely borne by one side and even a blitzkrieg of attrition litigation at the beginning can backfire.

There are books out there such as Lawyer’s Poker—a bit more fashionable, but the analogy doesn’t really hold. Poker is almost entirely tactical, even if you can learn a lot about psychological tactics. I’ve also seen Sun Tzu on more than one attorney’s bookshelf. There are some important maxims in there, but it is more difficult to apply by analogy to litigation than manuals on set piece battles involving field armies and Sun Tzu is not an analytical work.

Here’s a list of books on strategy:

• The Strategikon by Emperor Maurikios of Byzantium
• The Prince by Niccolo Machiavelli
• On War by Carl Von Klausewitz
• The Art of War (Not Sun Tzu) by Jomini
• Strategy: The Logic of War and Peace by Edward Luttwak
• The U.S. Army Leadership Field Manual
• for the example nonpareil of relational maneuver, read about the Emperor Herakleios who took his field army deep into enemy territory leaving the entire empire unguarded, Constantinople besieged by Avars on one side and the Persians on the other. Ultimately his fast field army utterly destroyed the Sassanid Persian Empire at the Battle of Nineveh, which had just conquered the Levant, Palestine, and Egypt. (As an aside, the destruction of Sassanid Persia and the ruin of war in Byzantium allowed one of the major turning points in history, one very relevant to this day: the Arab conquests.) Relational maneuver is something to think about for those underdogs out there.

There is a book I have not read called Litigation is War that purports to apply Clausewitz to litigation—but what if that’s not you? Sample a variety of primary sources.

Also, as far as games go, chess is infinitely superior to poker because it combines strategy, operations, tactics, and, despite what people think it is hugely psychological (even through a computer).

The kernel of wisdom in all of these pieces is that you must know yourself. Not your boss or your client or your firm—you have to know what your own strengths and weaknesses are first. As someone once put it, you go to war with the army you’ve got (not the one you wish you had).