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NORWICH, Conn.—If you wanted to identify the most common employer mistakes that give rise to employment claims, what would you do? Ask a plaintiffs’ attorney, of course. Not friendly with any? Well, the clever lawyers with the Jackson Lewis law firm, which exclusively represents employers in workplace law matters, have a solution for you.
In a panel discussion here Oct. 21, several of the firm’s lawyers and an in-house employment attorney shared the dais with Debra Raskin, who represents employees.
Among the management boo-boos that get Raskin’s adrenaline pumping are a file folder full of glowing performance reviews of an employee who has been discharged for poor performance. Not only does that leave the employer with no documentation to support the termination, it also amounts to proof that the stated reason for the termination is a cover-up for a discriminatory motive.
“There is nothing like a bad paper trail to discourage a plaintiff’s attorney from taking a case,” said Raskin, who is with the firm of Vladeck, Waldman, Elias & Engelhard PC in New York. Of course, “bad” from Raskin’s point of view would be “good” from the employer’s point of view: a file that documents the employer’s legitimate business reason for firing the employee.
As for the argument that the positive performance appraisals were intended to motivate an underperforming staffer, Raskin said, “That’s the stupidest excuse I’ve ever heard.”
“If you don’t mean it, don’t say it,” said Diane Windholz, a partner in Jackson Lewis’ New York office. The same goes for promising poor performers promotions, raises or other rewards. It will come back to haunt you.
Employers also get into trouble when managers’ e-mail outpourings catch up with them in litigation. People tend to use e-mail as though they are talking, but courts treat e-mail communications as formal and official letters, explained panelist Shannon Geller, in-house counsel for Nextel Communications.
How do you think this message would impress a jury as the justification for laying off a 62-year-old female with 20 years’ service and positive (although not necessarily accurate) performance reviews:
“I was not very pleased at times with some of the decisions she’s made and, in any event, she’s gotten a little strange. I’ve heard her talking on the phone about competing teams and who can sell more lemonade. She either was leaving to start a lemonade business or she’s crazy. Either way, I thought it was best to get rid of her”
Probably not an open-and-shut case of age or disability discrimination, but not exactly evidence of a legitimate business decision either.
To avoid attorneys like Debra Raskin having a field day with your company’s e-mail records, Geller recommends cracking down on the e-mail communications culture. Minimize e-mail; use the phone, she said. Keep messages short and simple, and do not discuss legal issues. Include no inappropriate, offensive or flippant remarks. And find some other venue to practice your jokes.
Stick to what you know, don’t make judgments without enough information and know whom you are talking to in e-mail communications, Geller said. “Avoid group mailings and hitting ‘reply all.’ ”
If you must use e-mail to conduct business with your lawyer, take steps to protect legal privileges, designating requests for legal advice as “attorney-client communication: privileged and confidential.”
And above all, reread before you hit the “send” button.
Increasingly, employers are adopting multi-step dispute resolution policies to nip employment-related disputes in the bud. “And that’s a great idea,” said Jackson Lewis’ Windholz. But if you have a policy, you must go through all the steps, and you must be sure that your managers and supervisors allow the process to occur, she said. “Everything you put down in writing you do have to actually do,” echoed Geller.
Be wary of timeframes; you must meet your own deadlines. Panelists strongly discouraged expressly stating a time limit for completing an investigation under a dispute resolution procedure. On the other hand, they encouraged employers to set a deadline for employees to withdraw their complaint or move to the next step.
Consider carefully where the buck stops in a multi-step procedure, panelists cautioned. Some CEOs want to be the go-to guy or gal, expressly inviting employees to take their issues all the way to the top. But if the chief is often absent or inaccessible, that will create a bottleneck. CEOs might not be so eager to get involved in workplace disputes if you remind them that they will end up on the witness stand should the dispute end up in trial, Windholz said.
Raskin said employees come knocking on her door with two main beefs about workplace investigations of employee complaints:
• On the front end: having the investigation turned into an investigation of the complainant’s performance.
• On the back end: not knowing the outcome of the investigation.
“The investigation should be about the issues first brought to the table,” said Terri Freeman, a Jackson Lewis attorney in Morristown, N.J.
And, although you will need to maintain confidentiality regarding witnesses and the alleged perpetrator of any wrongdoing, you should go back and tell the complaining employee either that you did find a problem and are taking appropriate remedial action or that you did not find evidence of misconduct.
A lively discussion ensued among the panelists and audience members as to whether to ask complaining employees early on what remedy they are seeking. Raskin strongly supports that approach, suggesting that it may yield a mutually agreeable solution that might not occur to the employer or one that the employer could not raise in the first instance. For example, a woman complaining of sexual misconduct by her male supervisor might be perfectly happy with a transfer, but the employer could not impose or even suggest that as a remedy without exposing itself to additional legal risk.
Freeman warned that asking the question up front creates an expectation that the employer may not be able to fulfill. Reminding complainants that what they want isn’t necessarily what they will get is another approach, suggested a participant.
In any event, it’s not over, even when it seems to be over. HR needs to check in with the complaining employee periodically to make sure problems aren’t festering. Use a tickler system to remind yourself and document the contacts, said Windholz.
Raskin said that, while discharged employees who consult her exhibit a surprising “residue of loyalty” to their employer, a “bad” termination quickly breaks those bonds. Embarrassing them, not allowing them sufficient time to pack or say goodbye, and parading them out with a security guard drives people to attorneys’ offices. There may be circumstances when such treatment is in order, but a simple layoff is not one of them, panelists said.
Terminating someone without letting them complete a performance improvement plan is a recipe for a lawsuit. “We see it again and again,” said Elise M. Bloom, a Jackson Lewis partner in New York, and the panel’s moderator. “It’s great evidence of pretext,” said Raskin.
On the issue of severance, Raskin rejected the notion that severance offers generate litigation. However, she counseled employers to weigh the amount of the severance offer against the cost of going forward. “The more severance, the more cautious the plaintiff and plaintiff’s attorney will be about going forward.”
Of course, employers should obtain a valid release of claims in exchange for severance, the management lawyers said. But a severance offer of only a couple months’ pay will not motivate an employee to forsake a viable claim, said Raskin. So if the employer knows it’s on shaky ground, it needs to offer more, she said.
The panel discussion took place during the Women’s Employment Law Conference 2004, sponsored by Jackson Lewis LLP. The West Coast edition of the conference is slated for Nov. 4-5 in Berkeley, Calif.
Margaret M. Clark, J.D., SPHR, is senior legal editor for HR News.
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