The Mr. Potato Head of Law: Discussing Employment Law, Discrimination, and the Future of Work with Lisa Bernt

BJ: If you could introduce yourself and the organization you're a part of, that'd be great as a starting place.

LB: I am Lisa Bernt, and I am Project Director and counsel at the Fair Employment Project. We are a small legal aid clinic based in Cambridge, and we assist workers throughout Massachusetts with legal information about their rights on the job.

BJ: Could you tell us a bit more about the story of the Fair Employment Project, how it kind of came into fruition, and where you kind of see it in the future as well?

LB: Sure. The second part is going to be harder because of the future. In terms of the history, it started in 2007 by [...] some advocates who saw that the current system wasn't working well for workers of limited means. So, one advocate was—one of the founders is—Stephen Churchill, and he is now in private practice, but at the time he was a clinical instructor at the Harvard Legal Services Center in Jamaica Plain. He teamed up with Lynn Gerton, who was at the time chief counsel with the Volunteer Lawyers Project.

The idea was to create a separate nonprofit to work in collaboration with Harvard's Legal Services Center's Employment Law Clinic. So they got some funding and then they brought me on as the director. And that worked great for two years. And then the recession hit. Unfortunately, I started the job the week the stock market crashed in 2008. Between the recession, that funding, and Harvard layoffs, Harvard's half of this collaboration ended in 2010. And so we were left alone, with no funding.

Since then, we have been struggling. We don't fit the traditional definitions of legal services. We're doing something unusual. We're trying to be creative. So since then, our funding mainly comes from donations and sometimes by press. It basically means that sometimes when there are class actions, and they can't find all of the claimants, some of those funds have been directed to us. So between that and donations and occasional other little bits of money here and there, we have been managing to stay on life support at least.

So that's the history. In terms of the future, I'm the only employee. Everyone else is a volunteer. Our board of directors volunteers their time. I think right now we have about 30 plus law students and new lawyers or new graduates. And then I have another—maybe 20 some undergrads—who volunteer, but in a more limited way. It's not a lucrative job, but I've never had more fun being a lawyer.

BJ: I was wondering if you could give your broad summary of employment law, particularly in employment discrimination. You’ve talked a lot about the legal and illegal reasons to fire someone. If you could kind of take us through what is it about?

LB: So I'll give you basically my summary of workplace law in two minutes. Most lawyers never study this. It's not required coursework, and I've never seen it on any bar exam. The basic rule is that in Massachusetts, just like every state in the U.S except Montana is, if you're non-union and you don't have specific job protection in a contract, then you're employed what we call “at will.” Employment at will means as a default rule, an employer can hire and fire as they please without incurring legal liability. But there are many, many exceptions to that rule. And that's really what employment law is about.

Sometimes I call these the legal commandments. Employers can do what they want, but they can't violate this list of laws. We have a collection of state and federal and sometimes local laws prohibiting discrimination and prohibiting retaliation for exercising rights under those laws.

But there are other exceptions to the rule. For example, if you complain about your paycheck, you're protected from retaliation. There are certain leave laws under certain circumstances. There are various whistleblower laws. There are protections for people who want to start and form unions. But all of these laws have different coverage requirements. Not everybody's covered by all the laws. So each one has to be reviewed separately. I call this the Mr. Potato Head area of law, because things just keep getting crammed on.

But the bottom line is, the difference between unfair and unlawful usually depends on the motive. Most of the time, it's up to the employee or applicant to prove not only what happened, but that what happened happened because of an unlawful motive. So the first thing, when we talk to clients, we understand something bad happened. Why did it happen? That's when it gets interesting, because how do you prove someone else's motive? This is why these cases can be very challenging to even put together, let alone run the entire legal obstacle course.

BJ: [Laughter] My next question actually was, how do you prove intent in these employment battles?

LB: [Laughter] That's very difficult. So let's talk about discrimination for a minute. The good news is you don't need a slam dunk. Sometimes people think, “oh, I got a sure-fire, this is a slam dunk discrimination case.” I've never seen one.

There is what we call direct evidence. That's where somebody is [practically] admitting something. Those are extremely rare. Much more common [is] what we call indirect evidence. In other words, you need enough building blocks or puzzle pieces that when you put it together, it adds up. A piece of symbolism I might use is the French paintings, pointillism, you know. Seurat with the dots, right? Where you look in and it just looks like dots, but you look back and you see the picture. So most of the time people need to prove their case by pulling together a lot of facts of the right kind of facts. And it has to be—there are certain types of facts that agencies and courts are looking for. For example, if it's discrimination, was there discriminatory language? Was somebody treated worse? Then let's say it's an age discrimination case. Do I have examples of people substantially younger than I am [who are] treated better in similar circumstances? That's what we call comparators.

And then you need to run the legal obstacle course, and that's challenging. So, for example, in Massachusetts, most people file claims at the Commission Against Discrimination with no counsel. Only about 20% of people even survived the investigation stage, which can take years. And it's hard to get law firms to take these cases without money upfront and for good reason. These are risky cases to take. I've never heard of a law firm advertise on television for a discrimination case. So a lot of people call us saying, “I've been calling around, I can't get anybody to take my case.” And that's why we offer our limited service.

BJ: Gotcha, I wanted to go back to the part you said where a lot of lawyers don't take money upfront. Why is that? And what kind of cases do lawyers take?

LB: So that would be what we call a contingency arrangement. A contingency arrangement, oversimplifying it, is that somebody will say, “okay, I'll take your case, there's no money upfront, but if we win, I'm going to take a third or maybe more.” Those are the ones you see on TV. Maybe it's a class action, personal injury, product liability in the workplace, workers compensation. There's no norm. I mean, law firms might charge by the hour. or they might charge on a contingency. Or they might do a blend. They might charge a lower hourly rate and take a smaller percentage at the end. It depends on the case. But for a contingency arrangement, law firms are looking for an extra strong case for a lot more damages. Because if they're going to take a third, a third of what?

So higher earners are more likely to get a law firm to take a case with no money upfront. If you're making 15 an hour and working at McDonald's, you're going to have a harder time finding an affordable lawyer because of the damages. The economics are upside down. If you have a company that's short-changing multiple employees on their paychecks, you're more likely to find a law firm interested in that case. Our wage laws are pretty strict in Massachusetts, so if there's enough money involved, law firms are interested in those.

BJ: This is more of a creative question, but if you could implement one law or amend/remove a law to better fix employment law, what would you do if you were the public policymaker right now?

LB: That is hard because it's like playing whack-a-mole. Every time you think you've got something covered, something else is created. So for example, lots of new laws have been implemented, but at the same time, more employers are requiring as a condition of employment that people promise never to sue them in court. So all the laws in the world aren't going to make a difference if you have to go to arbitration. This is more private arbitration. It's secret. There's broad confidentiality. Very often you can't join your coworkers in a class action. So it's not just about the laws, but how do they get enforced?

So, I don't have a great idea here. I think one issue would be to amend the Federal Arbitration Act. But that's just one piece of it. I don't think there's one piece here. If policymakers want to enact a law, my next question is how is this going to be enforced? And have you addressed the other implementation and threshold barriers here? For example, I tell people there's the law in real life and there's the law on paper. I think it's the first part that we need to pay more attention to. How are these enforced? Are there lawyers? Do people know their rights? Can they exercise their rights or have they signed away their rights without even knowing it? But I don't have any magic wand here. So I think of this as, yeah, it's plain whack-a-mole.

BJ: And speaking of people knowing their rights, I know you wrote an article in 2012 that challenged the scrutiny of consent when signing employment contracts. No one really reads those 500 pages of Terms and Agreements. But when you sign it, and there's an issue, the company typically looks back and says, you've signed the agreement. Can you take us through the general premise of your article challenging this notion?

LB: Yeah, I was reading another law school professor’s article. I quote her extensively: Rachel Arnold Richmond. I was thinking about it in terms of non-compete agreements at first, because sometimes people are asked to sign non-compete agreements [on the] first day of their job, after they quit their last job, maybe they moved across the country, and then, by the way, you have to sign this today. I'm like, really? And then I was thinking, it's non-compete agreements, it's mandatory arbitration agreements, it's non-disclosure agreements, all these things, they're being shoved at you [on your] first day at work. And you didn't know this before you took the job. So I know that New Hampshire had amended their non-compete agreement laws to say, no, you gotta give people a heads up before they take the job. And I thought, that makes sense, right?

And so this law professor writes about how she thought that non-compete agreements should be treated like prenuptial agreements. In a lot of states, you're not bound by prenuptial agreements if you didn't get enough time to sign it. Imagine the day of your wedding and being handed a prenuptial agreement. You're about to walk down the aisle! Here, sign this! Okay. you're gonna sign it, probably. And so this professor said, well, why don't we use that principle with non-competes? And I'm like, why not do it with all [...] employment contracts?

In fact, there's an example of this. If somebody wants to waive their rights under the Age Discrimination and Employment Act, you have to give them a certain amount of time. This way, we don't have to worry. Then yeah, if you sign it, you sign it. But you have to give them enough information.

BJ: Talking about another article you wrote in 2021, this time about the problem of information asymmetry between employers and employees. Could you talk a bit more about what's causing that information asymmetry and maybe some solutions towards transparency?

LB: Oh, yeah, that's another tough one. In fact, this article started out of something else. I started thinking about the use of big data and data analytics before everybody started calling everything artificial intelligence. I was going to a lot of conferences and people were talking about possible solutions to those issues, not realizing the pre-existing problems. Before we get to these new problems, we got to deal with some old impediments of transparency that had to be put in a larger context.

So I do talk about the tech, the automated decision, artificial intelligence a little bit, but I think that there are bigger issues that we have to address first. I do think that greater use of the National Labor Relations Act could help. When it's enforced, it protects covered employees from retaliation if they're trying to join or form unions, but also if they're trying to act collectively. And the National Labor Relations Board has said that policies and practices that chill employee speech might violate that law. So allowing people to communicate more without the chill factor will help people at least share information, but now we're back to the arbitration. If you signed an agreement where you have got to keep this arbitration confidential, you can't share that, so maybe you're the sixth person who's been sexually harassed but you don't know that.

One of the reasons I got into [employment law], I think I was about 20, and I was an assistant manager in a large chain store. And the store manager overheard two of the salespeople who were high school students, and they were comparing what they were making. And my boss said, “I'm gonna fire them. I told them they're not allowed to talk to each other about what they were making.” They were making like five cents over the minimum wage, so it was ridiculous. That's how old the story is, by the way. And I had read somewhere in some magazine, but I have no idea where, I said, “Robert, I don't think you're allowed to fire somebody for that.” And he didn't fire them. And to this day, the two people whose jobs I saved have no idea that I saved their jobs. And then I started thinking, well, this is kind of cool. I couldn't figure out what law it was because I didn't know how to do legal research. This was pre-Internet. I changed my major to labor studies. I still couldn't find a good answer. And then [the] next thing, I decided to go to law school. And I found out it's the National Labor Relations Act that says you can't do that. The fact that I did not know that—everybody should have known that.

BJ: And the last question is a more non-law related question, but for any readers who are interested in a legal career, do you have any advice to undergraduates in pre-law? Anything they should be thinking about? Any advice to them in general about navigating their life?

LB: Oh boy, I don't know. It's been a while. I didn't take a traditional road. So maybe my comments would be more for the non-traditional students. I worked my way through school and it took a long time. And the things I saw at those jobs are why I went to law school. So I started law school when I was 27. And I had already worked in law firms as a paralegal. That's one way to go. But I say just don't go to law school because you feel you have to or you're feeling pressured to. You will not enjoy it, and it will be miserable. Do it because you want to.

In terms of preparing for law school, I would say probably most law school admissions people will tell you that study subjects you're going to do well in. I mean, I went to Michigan Law School, and the guy who sat next to me in criminal law was a Shakespearean actor. In fact, he was Oberon in A Midsummer Night's Dream. And then there was a concert pianist. Somebody else who is now related to me by marriage was a chemistry major at Cornell. One of my classmates was Barb McQuade, who you might see on TV on MSNBC. I forgot what she majored in, but we were in the same section. So everybody came from different areas, and you want to do something you'll excel in and focus on things that will teach you analytical skills.

And I guess the one thing I would say is writing. And I would say if writing is something that you struggle with, take a class in basic reporting, old school basic reporting. That was where I learned to write. Nothing better than “here's the story, okay, now cut it in half and bare bones.” Get to the freaking point, right? Not like creative writing in high school, which is not what legal writing is like at all. Keep it short. I think that judges appreciate that. Just get to the point. So learn to write. It will help you a lot. And just, cut out the extra verbiage. I made my point, so I'm going to shut up.