Paul H. Tobias Tribute

David R. Cashdan

Paul was a visionary.  He radiated endless energy.  He seemed to expend all it or vast amounts of it on ways to bring justice to the workplace.

To his vision, his successes, and our friendship, Amen!

Paul and I met first in Phoenix in the 1980’s when he button-holed me at an evening social of plaintiff lawyers from around the country who were attending an ABA labor and employment conference.  A few of the plaintiff’s attorneys at this gathering had previously at Paul’s prompting formed the Plaintiff’s Employment Lawyers Association (PELA) which subsequently changed the name to NELA.  Within minutes, if not seconds after we met, Paul was proselytizing. He was handing me a packet of xeroxed materials: tips for representing employees in discrimination cases.  In addition, he was promoting what was PELA’s last meeting and what became NELA’s historic first convention at Lake Tahoe. As I had by then spent 5 years at the EEOC in its first years and had spent another 14 years practicing exclusively employment discrimination law, I was truly taken by Paul.  He was so “gung-ho” about rallying, teaching, and expanding the pool of plaintiff employment lawyers.  So dear to our hearts were his rousing rollcalls that each year opened every NELA convention.

Although I missed Tahoe, I made it to the convention the next year in Cape Cod. I was quick to purchase the convention the T shirt, designed by Cliff Palefsky one of the NELA founders: emblazoned on the front was a rainbow and what became Paul’s mantra, “THE JUST CAUSE CONSPIRACY.” The day before the convention, Paul once again pulled me aside and indicated he had a serious matter to discuss: the course for the first Tobias Run or 3K).  “David we are going to run down this street for about a mile, turn left for a couple blocks and come back on that street over there. What do you think?” 

I pointed out that his route involved crossing through several intersections with traffic lights and was not particularly scenic. “Paul, if you go the other direction there is a scenic, curly road that runs along the beach right past the Kennedy family compound and involves no traffic lights.”  Paul frowned and immediately rejected my suggestion.  Apparently, he had wanted my blessing and nothing more.  Thereafter, at every NELA Convention, he would remind me that I was a “troublemaker” and that he wanted no input from me on the course for that year’s Tobias Run. “Run but say no more!”

Paul was not content to just build NELA. Like Samuel Gompers, he wanted “More” and even “More.”  In addition to having NELA train plaintiff employment lawyers, he recognized along that there was a need for an organization to educate workers on their rights. He, along with some of NERI’s founders, button-holed NELA’s founders (many of the same people) to set up a companion organization, the National Employee Rights Institute (“NERI”).  Although NERI had a Board, Paul said he needed me on its Advisory Board. (I guess that’s where he put advisory troublemakers.)

That year or shortly after it, an associate at Cashdan & Golden, Chet Levitt met a tragic death. We wanted to set up a memorial fund for Chet. The Fund would provide interest free grants to plaintiff employment lawyers to help carry some of the expenses in their employment law cases.  I asked Paul if he thought we could operate under NERI’s tax exemption as one of its projects.  Paul was all for it.  More than that, he immediately, said “Cashdan we need to set up one of these funds in every state across the country.”  Soon there was one in Ohio and another in New York, presumably he was involved.  In the years that followed he kept reminding me of his aspiration for “More” such funds.

Doug Scherer, a law professor at Touro, Paul proposed that NERI publish a progressive law review with a focus on workers’ rights. Working with Chicago-Kent Law, NERI launched the Employee Rights and Employment Policy Journal in 1996. That was just one of many employment publications that Paul authored, or produced, or helped to launch.

Not too long after that, or maybe it was long after, Paul called me and asked if I knew anything about the DC Employment Justice Center and its workers clinics.  As I was on the EJC’s Board, I shared with him what EJC was doing.  His rejoinder came as no surprise.  “David, we need to establish clinics like this across the country.  You need to get me a list of any other such clinics.”  In the years that followed he did not abandon that quest – at NELA board meetings he urged all of to help establish similar clinics in their states and/or cities.

Lest I give the wrong impression, I know that hundreds of NELA member also received similar push and prod calls from Paul.

Paul would regularly descend on Washington DC.  At least one of these trips was to attend meetings involving the Draft Restatement of Employment Law and to impose (perhaps that’s a little too strong a characterization, but perhaps not) his imprint on the Restatement for Employment Law. He was campaigning for refinements to assure authoritative commentary to better protect employees. In advance of these Restatement meetings, Paul would circulate drafts of his suggestions to a committee of plaintiff employment lawyers working with him on the Draft Restatement, the NELA Board and other of his helpers. Paul and a few other members of NELA would regularly attend Restatement meetings, normally in Philadelphia and do their best to make sure the Restatement would include legal principles and cases that would be helpful in representing “at will employees or confronting employment contract issues.

Paul’s propensity to charge ahead into uncharted and challenging waters was hilariously memorialized in a video that Fred Gittes’ law firm produced and debuted at Paul’s 80th birthday celebration.  Paul’s ride on this leadership pendulum began well before the creation of PELA and NELA. At this 80th birthday party celebration in Cincinnati, the African American husband and wife, who sat next to me at dinner, long time Cincinnatians and activists, explained how for many years Paul had been omnipresent and vocal in past joint efforts with them and the NAACP to address racial discrimination in Cincinnati.

His involvement with and contributions to the development of employment discrimination law were recounted in one of the earliest of the College of Labor and Employment Lawyers talking history video’s.  One segment captures Paul laughingly explaining that he luckily prevailed due the employer’s counsel’s errors on a seminal case that made it to the Supreme Court involving whether the employer’s employee handbook was a contract; namely, that in filing a motion to dismiss in the trial court the employer’s counsel had accepted as true the allegations in Paul’s complaint.

Paul’s horizons were not limited to the USA.  Although I never joined him on one of his many junkets, I did get his invites.  “Cashdan, I am going to London this year, we (he and some of our NELA cohorts) will be meeting with various justices, union officials, and English employment lawyers. You should come along.” “Cashdan, this year we’re going to South Africa.” “Cashdan, we’re going to South America.” “David we’re going to China.” Afterwards, when I heard about the trips from Berry Rosman, Wayne Outten, and others, I realized what I had missed and just how inspiring and fun those international jaunts were.

There were many fun moments with Paul.  In advance of his trips to DC, he would call. “Cashdan, I’m coming tomorrow and it’s time for another “Power Breakfast” (his term, not mine).  He always chose his same Power Venue, the Mayflower Hotel.  These powerless breakfasts are the source for many fond memories.  At one of these, when we were sharing anecdotal memories about our roots, our families, and personal histories, Paul mentioned his early employment at the Central Intelligence Agency monitoring lefty college groups. Since it was now three, if not four decades, later, I confided, that when I first heard about that history, I had a fleeting worry that our inspirational founder of PELA was a CIA plant.  He assured me that well before then he had had an AWAKENING. 

Paul loved tennis and savored victory.  At the NELA conventions, he would seek me out.  I was easy prey. The troublemaker always made his day.

One day he left the troublemaker at the gate.  It was the morning of Tobias Run at Vail.  I arrived with my camera in hand to preserve for posterity the event and the brave souls that chose to jog at 8,000 feet.  Paul was not going to run, so I asked him if he would hold my camera. “Cashdan, go put it under a bush.”  I turned my back, and as I was heading for the bushes, he released the runners and when I returned, everybody, except for Paul, had disappeared around the bend. 

When I first learned that Paul had died, I mentioned to Phyllis that I was sure our visionary, now among the angels, would have new horizons to conquer and that neither the angels nor he would RIP.