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0506 HR Magazine: Know Your Adversary

By Allen Smith   5/1/2006

HR Magazine, May 2006


Vol 51, No 5

If you avoid hair-trigger responses and take the time to understand employees attorneys, you can reap important business benefits.


Incredible as it may seem, HR professionals can sometimes reap significant benefits from attorneys who represent disgruntled employees. From persuading angry workers to be more dispassionate, to bringing about needed—though costly—changes, attorneys for workers may advance the profession in a number of surprising ways.

As Tyler Brown, a Jackson Lewis management attorney, puts it, employees’ attorneys are often the enemy, but not always. In fact, the roles of HR professionals and employees’ attorneys are more similar than is commonly recognized, he asserts. Both are concerned with treating workers fairly, but they approach that goal from different perspectives. “HR professionals do this prospectively” when addressing employee concerns; the attorneys examine the treatment of workers in the rearview mirror.

And, of course, a significant difference in perspective springs from the fact that HR operates from within organizations, while employees’ attorneys assume outside advocacy positions to represent employees’ interests.

For this and other reasons—such as when attorneys call HR professionals out of the blue with legal allegations, try to rattle them at depositions or engage in questionable practices designed to win at all costs—HR professionals often have good reason to distrust employees’ attorneys. But HR professionals who can put aside some of this natural distrust and take an objective look at what makes these lawyers tick can better position themselves to avoid legal battles—and even recognize when they might benefit from the “other side.”

In fact, by contemplating the case selection methods and underlying motivations of employees’ attorneys, HR may identify more ways to facilitate necessary organizational change without workers’ attorneys ever getting involved.

Another Pair of Eyes

It’s not hard to imagine approaching a meeting room to fire a worker whose unannounced tardiness and absences have left the employer little other choice; it’s also not hard to imagine the hurt and angry look in the worker’s eyes. You can’t help but wonder if the meeting will really end the relationship with this worker or just be a prelude to litigation that drags on for years.

And this is the time to wonder, because the events leading up to this meeting—and how the meeting itself is conducted—likely will go a long way toward persuading or dissuading an employees’ attorney from taking this case. These events also may influence how vigorously attorneys decide to pursue a case.

With that in mind, employees’ attorneys offer HR professionals the following insights: Time adverse employment actions carefully. The first glimpse an employees’ attorney ever gets of how your HR department operates often is a worker’s description of disciplinary actions. The final discipline, which may result in the end of the employment relationship, frequently is the starting point for the attorney, who has to work his or her way back to learn what happened.

For Charles Goldman, a Washington, D.C., attorney who represents employees in many civil rights cases, the timing of discharge is a critical factor. For example, if someone files a charge with the Equal Employment Opportunity Commission and then is suddenly hit with a lower performance evaluation followed by progressive discipline that leads to termination, the timing is a red flag.

Strike the right tone. Striking the right tone during discipline is critically important because the tenor of the conversation between employer and employee frequently is a key factor in whether the attorney will decide to represent the worker.

Steve Lebau, an attorney with Lebau & Neuworth in Baltimore, recalls a case involving several workers who were not paid overtime. Lebau says his firm decided to assist the employees in the overtime case partly because the employer did not seem to care about workers’ rights and mentioned such red herrings as one of the employees allegedly serving time in Mexico for stealing.

The decision to represent these workers was one that Lebau made quickly. He receives “dozens and dozens” of calls from workers seeking help each week and has only minutes for initial screenings. Yet, he decided to represent the workers even though he is not counting on a financial gain for the firm. Lebau says many employees’ attorneys “are interested and motivated by employee rights and general justice in the workplace.”

Seeking justice also is a theme for Elaine Charlson Bredehoft, an employees’ attorney with the Reston, Va., firm of Charlson Bredehoft & Cohen. Speaking to an audience of HR professionals and management attorneys at a Jackson Lewis conference in Vienna, Va., Bredehoft said, “I don’t get the employees who were treated well.”

Instead, she says, she gets workers who feel they were not allowed to communicate or have their claim investigated, or who believe the employer refused to explain the reasons for its actions.

And juries, Bredehoft says, respond to that.

If an employer has treated a worker poorly, an employees’ attorney may be inclined not only to take the case, but also to make life difficult for the employer, according to Stuart Saunders, an attorney at McCroskey, Feldman, Cochrane & Brock PLC in Battle Creek, Mich.

Saunders once decided to represent a worker who had a $1,000 medical bill after slipping and falling at work. The employer did not pay the bill even though the injury arose out of and in the course of employment, bringing the state workers’ compensation law into play.

Saunders took the case, even though there will be no fee. He says the employer had only excuses for not paying the bill and “acted like a jerk.” Saunders will make life difficult for the HR professional involved, remarking, “I filed because I feel like it’s the right thing to do.”

Keep investigations balanced. If a sexual harassment charge is involved, Kevin Harren, senior counsel with the New York State United Teachers, will look at whether there is a sexual harassment policy, how it was disseminated, what training was available and whether the employer properly investigated the claim. By proper investigation, he means whether interviewed witnesses were led to believe the employer was interested in the truth or hanging the alleged harasser.

Take responsive action. Bredehoft always wants to take sexual harassment cases in which HR tells alleged victims that the organization is not taking action because its investigation failed to verify their claims. That makes me nuts, Bredehoft says, remarking that inaction encourages and condones misconduct.

Employers have to do something in response to allegations of misconduct, she says. For example, the alleged harasser could be directed to participate in an educational course and there could be follow-up with greater supervision to make sure there was no harassment. There also might be fewer opportunities for the alleged victim to work alone with the alleged harasser, she adds.

Too often Bredehoft sees employers force the alleged victims out of the workplace, making them feel so uncomfortable they have no choice but to leave because the employers did not deal with the problem.

With two daughters in high school, Bredehoft says she has a particular interest in sexual harassment cases. She says she hopes sexual harassment will be a thing of the past by the time her daughters enter the workforce.

A Business Perspective

Like other employees attorneys, Goldman is inspired to take cases where he believes workers have been wronged. When you see real injustice, he says, the fire gets relit.

Even so, he says attorneys must treat their practices as a business, or they will soon be out of business. To that end, Goldman has to help potential clients move past their sense of injury. When most employees first meet with attorneys, he says, they normally are pretty angry or scared. You go through an emotional side as a counselor in the broadest sense. So, you have to listen and plant seeds about where to go.

Ultimately, however, where employees go is driven in large part by business and legal realities. Understanding that can be important for HR. Some things to keep in mind:

Realize the upside of lawyers financial incentives. The financial incentive for employees attorneys isnt necessarily a bad thing, according to Jonathan Mook, a management attorney with DiMuroGinsberg PC. The lawyer will not have the emotional baggage that the employee carries to the first meeting and may take a practical approach and get it done and over with, Mook notes.

The attorney may, for example, see how to cut a deal quicklyand get paid quickly. That can work to the advantage of employers, who usually want to avoid protracted proceedings that drive up legal fees.

Recognize that the other side often agrees with employers. Lawyers frequently inform workers that they have no case, and therefore decline to represent them.

Bruce Feldacker, an attorney for union employees with Feldacker & Durbin in St. Louis and mediator of employment law disputes, says he often sides with the employer when a union employee faces disciplinary proceedings. (For information on attorneys representing union employees, see Dynamics Differ in Unionized Workplaces.) Many workers dont understand that persistent tardiness is grounds for termination, according to Feldacker, who frequently explains to workers that they are wrong and have no complaint under the law.

Lebau often tells potential clients that the treatment they received may sound unfair but is in fact lawful. For example, he has met with executives who lied on their job applications and were fired years later when their lies were discovered. He declined to take such cases, recalling that he has had to say, Sorry, you should not have done this years ago and its come back to haunt you.

But while fairness may not be a decisive factor, it is an important one for Lebau, because he says juries often are more interested in whether an action is fair than legal. For Sue Willman, a management attorney with Spencer Fane Britt & Browne LLP in Kansas City, Mo., and a former HR professional at Zenith Electronics Corp. in Chicago, this interest in fairness highlights a key distinction between employees attorneys and HR professionals. Plaintiffs attorneys file a lot of claims and want a fair result, but not necessarily lawful, she states. HR professionals want to do whats lawful, which isnt necessarily fair, Willman remarks, saying the two have an inherent misalignment of interests.

Consider the importance of making the right impression. Should an attorney decide to represent a worker, the lawyer will be on the opposing side from the employer and, consequently, the HR professionalunless the lawyer is representing HR in a claim against the company. (For more information, see Attorneys to the Aid of HR.) Employees attorneys want juries to like their clients because that makes it easier to win their cases. It can be just as important for HR professionals to appear likeable should they wind up on the stand before judge and jury.

So what other qualities are advantageous in the courtroom? They may not be that different from some character traits HR likes to see in job applicants.

Goldman likes to take cases in which employees have their act together and possess good records to back up their claims.

A fundamental question Lebau considers before taking on a case is whether the individual seems like a good and likable person. Lebau asks himself, Do they come across the right way? Are they articulate and consistent? Can they tell a story and present well?

Best- and Worst-Case Scenarios

When dealing with employees attorneys, there often is a natural tendency to anticipate worst-case scenarios. But that shouldnt prevent HR professionals from realizing when best-case scenarios might instead be unfolding before them.

With that in mind, HR should try to distinguish real opportunities for resolving disputes from attorney fishing expeditions. For example, Bredehoft sends a copy of the draft complaint to employers before filing to give employers the opportunity to come forward with lawful explanations of the challenged actions. I would rather know what I have now, she says, than publicly file an accusation she cannot later prove.

Employers responses to her draft complaints often have brought to light valid reasons for the actions the organizations took. As a result, Bredehoft says, many times, I have not filed the case.

However, Willman rarely gets such letters from employees attorneys. More often, she receives hostile letters with bald allegations of wrongdoing that are not backed up because the employees attorney does not have all the facts.

Willman notes that in those rare instances when an employees attorney does seem genuinely interested in sounding out whether allegations rise to the level of a claim, there may be a real opportunity for cooperation.

In spite of the potential for cooperation and an amicable relationship with employees attorneys, HR professionals should tread carefully when informed of a potential legal action.

In particular, novice HR professionals who get a call out of the blue from employees attorneys always should refer the call to managements attorneys, says Willman. (For tips on working with management counsel when legal allegations arise, see this months Legal Trends column.) Every city has employees attorneys who lack integrity and are so underhanded that no matter what HR says, their words will be distorted, she cautions.

For example, an attorney might call HR with regard to a former employees potential disability claim, but say nothing of the workers potential Family and Medical Leave Act (FMLA) allegations. If HR makes the mistake of talking to the employees attorney, the lawyer may spend the time probing for information about disability to use in the FMLA litigation.

In short, an employees attorney may not be up front and HR may have no way of knowing that the attorney should not be trusted. But HR professionals who are very experienced in an area and know that an employees attorney has integrity mayin very limited circumstancesdecide to discuss the matter with the workers lawyer rather than shell out money for the corporate attorney to parrot what HR would say, according to Christine Walters, sole proprietor of FiveL Co., an HR consulting firm in Glyndon, Md.

However, Waltersa member of the Society for Human Resource Managements Special Expertise Panel on Employee Relationsadvises even experienced HR professionals to first find out whether the opposing counsel is known for being on the level. One way to do that: Ask corporate counsel about the attorneys reputation.

Righting Wrongs

If a case reaches an amenable resolution and wrongs were brought to light that took an organization by surprise, an employees attorney may work with HR to help it resolve workplace problems. Lebau says there are numerous cases in which he has helped HR improve a situation after the matter was resolved.

For example, he recalls one company that discoveredas a result of litigationthat a senior company executive was engaged in sexual harassment. The company took effective remedial action, firing the wrongdoer and taking other steps to set things right for the affected young female employees.

That type of action impresses Lebau. When a company does the right thing and works to right wrongs, he remembers it, and the company has more credibility with him going forward.

Allen Smith, J.D., is senior legal editor for the Society for Human Resource Management.

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Dynamics Differ in Unionized Workplaces

HR can face different challenges in unionized settings, where unions offer members legal representation. As a result, it helps to understand what makes union lawyers tick.

Bruce Feldacker, an attorney for union employees with Feldacker & Durbin in St. Louis and mediator of employment law disputes, says he always has been interested in labor relations and working through problems that meet the interest of both sides. He also likes the idea of helping the little guy.

Kevin Harren, senior counsel with the New York State United Teachers, notes that the union represents teachers who belong to the union when they are charged with incompetence, insubordination, misconduct, sexual harassment or other charges that put their employment in jeopardy. Harren says he is motivated by the fact that he likes to fight and likes the challenge of marshaling an investigation and presentation of facts in a way that puts my clients story in the best light. 

Attorneys to the Aid of HR

Sometimes HR benefits from a plaintiffs attorney because HR needs legal representation, points out Steve Lebau, an attorney in Baltimore who has represented dozens of HR professionals. For example, a claim may arise for an HR professional who steps forward and cautions that there are equal employment opportunity issues that should be addressed, and then is subject to retaliatory progressive discipline or discharge. Lebau says he has very favorably resolved a number of HR professionals claims.

Even when HR professionals are not seeking legal representation, HR often can benefit from employees attorneys, Lebau notes. HR professionals who listen well may learn key facts they had not yet heard and see solutions that in the future may spare their organizations the time and expense of facing workers attorneys.