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All of the following rules are simple. Some derive from my time as a freelance writer, when my livelihood (and my editors) demanded that I write clearly. Some derive from my time as a federal judicial clerk, when I read and analyzed legal writing — all day, five days a week — for two years. I use them every time I write a brief or motion and they serve me well.

1. Use topic sentences.

Write every heading and subheading as a sentence, and write a topic sentence for every paragraph. I cannot emphasize the importance of topic sentences enough. They are crucial to clear writing.

First, topic sentences force you to craft a coherent argument. When you use topic sentences for headings, and then read only at those headings, you can readily assess whether there is a logical flow and consistency to your argument. The headings in your statement of facts, for example, should reflect key points, such as who knew what and when, that are relevant to and preview the argument that follows. The same goes for every paragraph; it should relate to its heading. If it doesn’t, then you must ask yourself where it goes, and how it serves your argument.

Second, topic sentences help your reader immensely. Topic sentences explain to your reader why you are telling them something, which makes the reader more invested in what you have to say. When I was a judicial clerk, if there were long sections of facts or case descriptions, I would skim until I came to the point. Without that frame of reference, I was unable to assess the information and therefore had little incentive to read closely.

2. Keep paragraphs within 2 to 7 sentences.

If you use topic sentences correctly, a paragraph should convey a single idea. If you have more than seven sentences, assess whether you need two paragraphs, or if you need to eliminate something extraneous. Do this assessment every time you have a long paragraph, without exception.

3. Keep sentences under 60 words.

This 60-word rule serves as a constant check on readability. Sixty words is approximately three and a half lines of text. If you see a sentence is long, either revise to eliminate wordiness, or decide whether it really should be two sentences. Both edits add to clarity. I make an exception for sentences with numbered clause, because: 1) the numbers help the reader follow the sentence structure, and 2) this sentence format is common in legal writing, where legal rules often take the form of a multi-factor test or analysis.

4. Avoid unnecessary detail.

Every detail you include in a brief should serve you in some way. If it doesn’t, then it distracts from your argument. For example, I do not include any proper names other than the parties in the case. Instead, I identify people with a descriptor such as the “human resource specialist,” “Defendant’s medical expert,” “the officer on duty.” I do the same with dates and times; I only include them if they have legal significance. Even then, I explain why they are significant. For example, I will write, “the taunting continued for six months after she complained to human resources,” or “he died two days later.” If you eliminate details in this way, you lighten your reader’s cognitive load, leaving more room to focus on your argument.

5. Banish passive voice.

Passive voice hides the actor in sentence, which detracts from clarity and readability. You get rid of passive voice by looking for variations on the verb form “to be” and replacing them with another verb. For example, in the sentence, “Her complaint was investigated the following week,” the verb “was” hides who did the investigation. Instead write, “Her manager investigated her complaint the following week.” Do this type of revision over and over until it becomes second nature. The one exception, of course, is when you want to obscure the actor in a sentence, as in the classic example, “Mistakes were made.”

6. Use key words to signify your argument.

Think carefully about word choices for the key facts in your case. If you want to argue that a company failed to adequately address a sexual harassment complaint, for example, you would not write “the investigation,” but might use “the response” to suggest that no genuine investigation took place. Similarly, you would write the human resources manager “met” or “spoke” with the alleged harasser, rather than “questioned” or “interviewed” him. These word choices should be both subtle and accurate, so that you can include them in your statement of facts, and throughout your brief, reinforcing your argument at every opportunity.

7. Define your opponent’s argument.

When you write a response or a reply, identify your opponent’s argument at the outset of your counterargument, and refer to the specific page or pages in the opponent’s brief. For example, you might write, “Defendants mistakenly contend that. . .,” or “The cases Defendants rely on are readily distinguishable because . . .” or “Defendants appear to argue that . . .” and then cite to the page numbers in the opposing brief.

This serves two purposes. First, it helps to cabin the opponent’s contentions. Sometimes an opponent will write so poorly that you can’t figure out what he or she is trying to say. If you don’t know, then chances are the judge or clerk won’t know either, and thus will be apt to rely on your interpretation. Second, including the specific page numbers for your opponent’s argument helps the judge or clerk refer back to it, which means they can better assess what you say about it.

Of course, your description of your opponent’s argument must be accurate. Otherwise, you not only lose credibility, you also risk failing to adequately address the opponent’s point.

8. Edit as you go.

I employ these rules as I write, not when editing later. This forces me to continuously assess and clarify my argument. The extra work pays off in persuasion.

Overblown adjectives, ad hominem attacks and deliberate misconstruction don’t win arguments. They shout weakness. But when you write clearly and carefully, every sentence, every paragraph, every heading subtly serves the result you seek so that, in the end, the conclusion has the force of a fait accompli. That’s the goal of these rules: to write so well, the result appears artless, effortless, inevitable.

As Hurricane Irma rips toward Florida, evacuees are wondering whether they can be fired for missing work due to the storm or its aftermath. Sadly, the legal protections are limited.

In Florida, your employer can fire you if you miss work due to an evacuation order.

Employment in Florida is “at-will.” This means that an employer can fire an employee for almost any reason, even a bad reason, so long as that reason does not violate the law. Examples of unlawful reasons include workplace discrimination, breach of contract, or retaliation for reporting a workplace safety violation. Some states, including Texas, prohibit employers from firing employees who miss work to comply with an official evacuation order. Florida, unfortunately, does not have such a law, despite the clear need for one in a state so vulnerable to major storms.

Despite this lack of explicit protection, Florida employees who evacuate could try to claim their termination violates the Florida Whistleblower Act. The Act prohibits an employer from terminating an employee for refusing to participate in “any policy, or practice of the employer which is in violation of a law, rule, or regulation.” In Florida, when the governor orders an evacuation, it has the force of law. Thus, employees forced to report to work despite an evacuation order could argue that their employer asked them to violate the law.

One Florida court has rejected such a claim, however. In that case, a nurse did not report to work at a nursing home due to an evacuation order. The court reasoned that, because it is a crime to abandon nursing home patients, it would be absurd to conclude that the employer’s demand that the nurse report to work violated any law. Those unique facts might mean that this case law would not apply in different circumstances. But, without other published court opinions on this issue, protection under the Florida Whistleblower Act is a long shot for Florida evacuees.

If you are fired for missing work due to the storm, you should apply for unemployment compensation.

Unemployment compensation provides temporary financial assistance to workers who lose their jobs through no fault of their own. In Florida, employees who are fired for misconduct connected with work do not qualify for unemployment benefits. A Florida court has held that an employee’s failure to report to work without good cause after the employer expressly directed him to do so as a result of Hurricane Ivan constituted misconduct connected with work.

That case, however, does not directly address whether an evacuation order constitutes “good cause” to refuse to report to work. Moreover, an inability to comply with an employer’s orders due to circumstances beyond the employee’s control does not constitute misconduct, nor does a good faith error in judgment. Bottom line, employees who are fired for not reporting to work during the hurricane should seek unemployment compensation. You can apply online at the Florida Department of Economic Opportunity web site. It costs nothing apply, and you are entitled to an appeal if you are denied.

Federal law may protect you if you refuse to work in unsafe conditions.

Under the Occupational Health and Safety Act (OSHA), you cannot be fired for refusing to work if the following conditions are met: 1) you asked your employer to eliminate the danger and the employer refused to do so; 2) you have a reasonable, good-faith belief that working would be unsafe; and 3) there isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels. Additionally, OSHA’s whistleblower protection prohibits employers from retaliating against an employee for raising a safety complaint. You must, however, file a complaint with OSHA within 30 days of the retaliation.

Under the National Labor Relations Act, an employee who raises safety concerns may be engaged in protected “concerted activity.” The Act prohibits employers from retaliating against an employees who raise issues with working conditions, even in nonunion workplaces, if the complaint is more than a mere personal grievance. For example, in a Puerto Rico case, an employer had to pay $50,000 in back wages to workers who ceased work to seek shelter from a thunderstorm, and refused to return to work, citing safety concerns due to exposed electrical cables at the site. Information on how to file a complaint is available on the National Labor Relations Board web site.

You May Be Protected If You Request Leave to Care for a Sick Family Member.

Evacuation orders may leave people with no one to care for loved ones with serious medical conditions. The Family and Medical Leave Act (FMLA) prohibits employers from firing employees who take leave due to their own or a close family member’s serious medical condition. Qualifying employees are entitled to up to 12 weeks of unpaid leave without fear of termination. To be eligible for the Act’s protections, your employer must have 50 or more employees, you must have worked there for at least 12 months, and for at least 1,250 hours during the 12 months before you request leave. You must also give notice to your employer that you are requesting FMLA leave. More information on the Act, how it applies, and how to file a complaint are available online and in this U.S. Department of Labor employee guide.

If your workplace is closed, your right to pay depends primarily on whether you are salaried or an hourly employee.

If your workplace is closed due to the storm, you may not fear being fired, but may face concerns about your next paycheck. This turns on a number of issues, including whether you are paid a salary (are “exempt” from overtime regulations) or whether you are paid hourly (are “non-exempt”). This blog post offers a good explanation of these issues. The U.S. Department of Labor Wage and Hour Division provides resources on this issue as well, including information on how to file a complaint.

Legal resources are available.

This is not an exhaustive list of all the workplace protections that may apply to you as you deal with Hurricane Irma. (For example, if you are a military reservist called to active duty, you have special protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA), or if you are injured during the storm, you may be entitled to the protections of the Americans With Disabilities Act/).

I wrote this post because I am a Florida-licensed lawyer, I grew up in Florida and my extended family lives there, and I want to help Floridians in any way that I can as they face Hurricane Irma and its aftermath. I am not alone in this. The Florida Bar Association has put together a hurricane resources page, so has the American Bar Association and the U.S. Department of Labor. A list of Florida legal aid services is available here. Please avail yourself of these resources, know your rights, and, above all, stay safe.

In the latest news of Silicon Valley men behaving badly, a Google employee recently released a manifesto against diversity. I represent employees who sue their employers for workplace discrimination and I advise companies on how to comply with the law. So, (outrage over the manifesto aside) my thoughts immediately turned to the legal implications of the manifesto, and Google’s response to it. That response is, from a legal perspective, shockingly ill-conceived.

The manifesto makes a number of sexist assertions that revolve around two themes: 1) women have certain biologically determined traits that explain why they are not equally represented in tech leadership; and 2) Google’s refusal to consider that biology, rather than bias, accounts for gender disparities reflects an intolerance for ideas that do not fit its “leftist ideology.” It went viral within the company.

Google’s new Vice President of Diversity, Integrity & Governance issued a statement in response, which included the following comments:

Part of building an open, inclusive environment means fostering a culture in which those with alternative views, including different political views, feel safe sharing their opinions. But that discourse needs to work alongside the principles of equal employment found in our Code of Conduct, policies, and antidiscrimination laws.

To put Google’s response in the proper context, I have listed here direct quotes of some of the “alternative views” expressed in the manifesto:

  • “Women on average are more prone to anxiety.”
  • “Women on average look for more work-life balance while men have a higher drive for status on average.”
  • “In addition to the Left’s affinity for those it sees as weak, humans are generally biased towards protecting females. As mentioned before, this likely evolved because males are biologically disposable and because women are generally more cooperative and agreeable than men.”

Thus, Google’s response suggests that a “discourse” rife with gender stereotypes can “work alongside” antidiscrimination laws. In fact, antidiscrimination laws prohibit a work environment where people “feel safe” sharing views based on gender stereotypes.

Frequent or widespread sharing of discriminatory “opinions” can amount to actionable harassment.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on “race, color, religion, sex, or national origin.” Under Title VII, even when an employer does not terminate, demote or reassign an employee, it can nonetheless discriminate if it creates or condones a hostile work environment. A hostile work environment exists when a “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive” to alter the conditions of the victim’s employment.”

Stray remarks are not enough. But a widespread workplace discussion of whether women engineers are biologically capable of performing at the same level as their male counterparts could suffice to create a hostile work environment. As another example, envision the racial hostility of a workplace where employees, as Google put it, “feel safe” to espouse their “alternative view” that their African-American colleagues are not well-represented in management positions because they are not genetically predisposed for leadership roles. In short, a workplace where people “feel safe sharing opinions” based on gender (or racial, ethnic or religious) stereotypes may become so offensive that it legally amounts to actionable discrimination.

Employers have a duty to prevent, and promptly correct, discriminatory behavior.

What’s more, an employer’s responsibility to address a hostile work environment in no way jives with Google “fostering a culture in which those with alternative views . . . feel safe” when those alternative views amount to offensive gender stereotypes. Rather, an employer has a legal defense to a hostile work environment claim if it can show that it exercised reasonable care to prevent and to promptly correct the discriminatory behavior. Reasonable care in this context typically means the employer must both prohibit offensive remarks and address them when someone complains. If, on the other hand, an employer fosters a culture where employees feel safe expressing offensive stereotypes, then it has utterly failed to exercise the reasonable care the law requires.

Even one comment may suffice to suggest unlawful discrimination played a part in employment decisions.

Finally, even if a single employee makes a single remark based on a gender stereotype, every employment-related decision that employee participates in becomes suspect. Such statements evidence bias, and therefore suggest that gender discrimination played a part in the employee’s decisions or recommendations. And when a plaintiff is able to prove that gender discrimination played a role in an employment decision, the burden then shifts to the employer to prove that it would have made the same decision even if it had not taken the plaintiff’s gender into account. In the case of the employee who wrote the manifesto, that burden could be heavy indeed in light of the blatant offensiveness of its contents.

In light all of this, Google’s response is, from a legal standpoint, baffling. From the standpoint of a woman, it is profoundly disappointing. Google, I assume, has a host of competent employment lawyers. It knows better, and it should do better.

The National Labor Relations Act (NLRA), enacted in 1935, regulates the relationships among employees, organized labor, and management. In fact, the Act is sometimes referred to as the Magna Carta of organized labor. Perhaps this is why, even employers who are familiar with the Act do not know that it applies to employee “concerted activity” in situations where no union is involved. In fact, the National Relations Board, the agency charged with enforcement of the Act, has referred to an employee’s right to engage in concerted activity as “one of the best kept secrets” of the National Labor Relations Act.”

Specifically, Section 7 of the NLRA provides, in relevant part, “Employees shall have the right to self-organization, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Breaking this down, generally, an activity is protected if it meets the following criteria:

  • Concerted activity – The activity must involve two or more employees acting together. This can be satisfied, however, where a single employee speaks or acts on behalf of others, by, for example, stating to management that several other employees agree with his or her complaint.
  • Mutual aid or protection – The activity must address something more than a personal gripe. Rather, the employee taking action must seek an improvement that will benefit more than himself or herself.
  • Lawful activity – An activity may lose its protection if it would subject the employee to civil liability, or is reckless or malicious, such as revealing trade secrets or sabotaging equipment.

For example, in one case, 13 workers ceased work on a concrete foundation to seek shelter from a thunderstorm, and refused an order to return to work, citing safety concerns due to exposed electrical cables at the site. The employer fired all of them on the spot. The National Labor Relations Board investigated, and the employer eventually had to pay $50,000 in back wages. The bottom line is that employers must not punish employees for bringing complaints to their attention.