Defending The Digital Workplace

An ebusinesscounsel.com publication

Business Jiu Jitsu

To survive in a down economy, employers are  increasingly faced with the unenviable prospect of layoffs, reductions, and terminations. For example, the newly unemployed–those who were jobless fewer than 5 weeks — increased by 212,000 to 3.1 million in October, 2008. And in these tough economic conditions, former employees are more likely to believe they have nothing to lose by taking their former employer to court. In this regard, EEOC claims hit a record high of 95,402 in fiscal year 2008, which is a 15.2% increase compared to last year. The costs of defending an EEOC claim further burdens a distressed company and an adverse judgment at trial has the potential to deliver  a knockout blow to the entire company.

Employment litigation can deliver a knockout blow to a company's bottom line.

Employment litigation can deliver a knockout blow to a company's bottom line.

An examination of an unlikely martial arts legend, however, provides insight for how Business Leaders can minimize getting pinned down by costly employment litigation.

Helio Gracie was born in 1913 in Brazil and was the youngest of five boys. Unlike his strong, athletic older siblings, Helio was weak, frail, and even suffered from fainting spells. These limitations followed him as an adult. But Helio would overcome these limitations and become one of the most famous, respected, and accomplished martial artist in the world. His fighting success completely revolutionized the Japanese martial art jiu jitsu to the point that it morphed into a martial art unto itself — “Gracie Jiu Jitsu.”

To achieve this success, Helio studied every detail of the jiu jitsu techniques that were being taught at the school where he worked. Further, if a technique previously depended upon strength and speed, he adapted it to suit his particular physical attributes, i.e., weak and slow. The end product was a martial art that minimized the size and strength needed to execute a technique. Using these new techniques, smaller and weaker individuals gained the capability to defend themselves and even defeat much larger opponents (in arguably Helio’s most famous fight with the world champion, Masahiko Kimura in 1951, Helio gave up 80 pounds).

Helio explained, “I can’t compensate a lack of technique with strength if I don’t have it. I have to make sure I do the technique 100% perfect. Then I don’t need all this muscle.” Helio further explained, “You need to always look for the way to execute a position so that the use of power is the last element for success. Helio and Royler Gracie, Gracie Submission Essentials, Invisible Cities Press (2007).

So what does this have to do with the Business Leader and minimizing employment litigation?

First, rarely, if ever, will a business organization have the unlimited “muscle,” i.e., resources, to ignore or simply apply anything less than 100%  attention to complying with its obligations under applicable employment laws. This attention is necessary so the business does not end up in a position where litigation is necessary or, if unavoidable, it may be isolated and quickly resolved through corrective action that may end the need for litigation or mitigate  damages at trial.

Second, at its core, the philosophy of Gracie Jiu Jitsu is about perfecting a defensive posture that will be used to obtain incremental gains. These gains lead up to a solid positional advantage and, ultimately, an opportunity to submit your opponent generally through a joint locks or choke holds (it is not fun to be on the receiving end of either). This philosophy is exactly what Business Leaders should promote (metaphorically speaking … generally) throughout the entire business organization.

That is to say,  Business Leaders should take every opportunity to identify risks and available  preventative measures. In the employment context, such measures may include training, properly drafted employee handbooks, complaint procedures, insurance, consistent enforcement of existing policies, etc. While these measures taken individually may not be the complete silver bullet against litigation, cumulatively they  give the business organization a positional advantage in avoiding or subduing legal costs.

Having been on the painful end of a  kimura or gogoplata (more often than I care to admit) I am the first to appreciate that it takes much more than few paragraphs to master Gracie’s jiu jitsu. Similarly, it takes more than a few paragraphs to address the myriad risks Business Leaders face. But an aspiring  business jiu jitsu practitioner would do well to focus on a couple of points:

Know the techniques i.e., know the law: It goes without saying that Business Leaders need to know what laws their organizations must comply with and what compliance means under those laws. For example, employers subject to the Worker Adjustment and Retraining Notification Act (WARN) must give at least 60 days notice if the employer plans on laying off 50 or more employees. The WARN Act exempts employers who violate this notice provision if there is an “unforeseeable business circumstance.” Courts, however, have not historically considered major economic downturns under this exception. In addition to the WARN Act, there are numerous state and federal employment laws that your organization may be subject to.  And similar to trying to teach all the jiu jitsu techniques in this post, it is unrealistic to address all of the laws potentially applicable to your organization in that same post. Accordingly, you should discuss with qualified counsel what your organization must do to be in compliance with these laws.

Establish a good defensive position: Regardless, however, of what laws apply, the best technique for subduing employment litigation is to document the business rationale and events giving rise to the employment decision. Whether it is a discipline, discharge, or decision not to hire, the documented rationale shows (ideally) your motivation was not discriminatory and, instead, based on reasonable factors. Documentation further provides a snapshot or road map for  witnesses (including those  who came aboard after the events occurred), the judge, and jury to follow. And unlike witnesses, documents don’t forget and don’t change their story (which may or may not be a good thing).

Helio Gracie revolutionized jiu jitsu. While he may not have the same impact in the business arena, the Business Leader following his example certainly has the opportunity to establish solid defenses against the risks that are routinely encountered under employment laws. But you should consult with counsel before HR incorporates guillotine chokes into the employee handbook as a first time disciplinary action … save it for repeat offenders.


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Written by Jason Shinn

November 22, 2008 at 9:47 pm

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