J.J. Conway
J.J. Conway Law
The first time I experienced it, it was alarming. During a routine Zoom deposition, I was attempting to clarify a few answers my client previously supplied that were inconsistent with the established factual record of the case. My client was in a different physical location from me. It had been a long deposition, and she faltered on a couple of facts that she otherwise knew well. She misspoke, and the transcript needed to be clarified. When I was given the opportunity to clarify her testimony, I paraphrased a previous question she had been asked by the opposing counsel.
The opposing counsel lost it.
Until then, I knew him to be a sharp, polished, and well-prepared lawyer in prior interactions. Now, his face appeared to be contorted through a video monitor, and he was saying things that were, objectively, out-of-bounds. I mean really out-of-bounds. When the deposition was over, I called him up. What’s going on here? I asked. I didn’t know what had triggered him. On the phone, he was calmer. We moved past the exchange, and the case proceeded without further incident.
It was unsettling enough, though, that I wondered more about this strange interaction. The way he acted demonstrated a lack of civility, to be sure. But this was somehow different – it was the extent of the reaction.
As with most things, anecdotes precede data. But I have now seen this too many times, in different settings, for this to be a mere coincidence. This is something that appears to be qualitatively different from a lack of civility. A lack of civility is commonly associated with rudeness and insensitivity. This new phenomenon might best be described as a “lack of proportionality.”
Proportionality is roughly understood as something being in “proper balance or relation to the size or degree of something else” according to Dictionary.com. It is a standard principle studied and used in war and diplomacy. The rule of proportionality is that a response to an event must be roughly equivalent to the event itself. Put another way, you don’t use “a missile to kill a mouse.” Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2904 (1992) (dissenting opinion).
That deposition was the first time I noticed the lack of a proportional response since the pandemic began. But, within the employment context, I’ve noticed a creeping lack of proportionality in dealing with routine employment matters such as counseling and discipline.
Disciplinary matters that were once handled with a simple counseling, a warning, or perhaps a write-up, are escalating into serious job-threatening suspensions with loss of pay. Human mistakes that cause no tangible harm to the organization are escalating into events of major consequence for the employee. These disproportionate actions create unnecessary anxiety and distrust within the workforce.
Recently, I sat in on an employee termination, held over videoconference no less, and I was surprised by the conduct of the human resource professionals on the screen. During the firing of a long-time employee, they seemed just a little rougher and more unforgiving than I previously remember. Individually and collectively, these events serve to undercut employee confidence and really diminish workplace morale.
It stands to reason that the social isolation of the past few years has caused us to occasionally forget our good manners, but this loss of proportionality may well stem from the lack of the in-person workplace experience, which helps employers and their managers set standards. When you are around people all the time, you develop a feeling about workplace standards in terms of evaluation and discipline. You have a better sense of things. When you are remote, it has to naturally affect the internal barometer. You lose a sense of what is a big deal and what isn’t.
Even the Harvard Business Review has paid attention to this. In a recent article, entitled “Frontline Work When Everyone is Angry,” author Christine Porath writes, the unreasonableness of post-pandemic conduct toward workers “results in negative outcomes not only for the workers who experience it directly but also those who witness it – all of which harms society and business.”
This is likely a moment in time. We will eventually return to a more normalized existence. Things will be more in balance. The only risk is that if these disproportionate responses are not curbed, employers may lose some good, solid employees in the process.
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John Joseph (J.J.) Conway is an employee benefits and ERISA litigator and founder of J.J. Conway Law in Royal Oak, Michigan.
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