For 20 of the 25 years of my legal career, I represented management. I defended claims, countered union activity and advised employers on avoiding legal trouble. By contrast, the first five years of my career were spent representing employees and a union.
I believe those five years proved to be of great service to the employers I served, as well as to me. The experiences I gained helped me from a strategic standpoint. More importantly, they gave me a healthy perspective on why employees file claims.
As I describe in another column, employee claims arise primarily from failed workplace relationships. Whether or not the assertion has legal validity, the claim is rooted in a relationship where dignity, trust and respect were casualties. They were replaced by bitterness, anger and a desire for revenge—and the legal system became the employee's outlet to vent.
During my career, I continually observed bright young attorneys joining corporate management-side law firms right out of law school. In my view, these lawyers tended to be overly zealous and risk-averse. The zealousness came from a desire to beat the other side. Often, it was accompanied by contempt for both opposing counsel and the client. This resulted in claim resolution being more protracted, costly and hostile, with negative consequences for everyone.
As a managing attorney, I would admonish our younger attorneys, "Ditch the word 'disingenuous,' even if plaintiff's counsel uses it with the regularity of teeth brushing." When the time is right, I'd tell them, lay out the facts, circumstances and law to the magistrate, judge, arbitrator or jury so that they say of opposing counsel, "disingenuous!"
I'd also caution against brandishing the "sanctions" weapon, even when plaintiff's counsel drops the word in every other sentence. In my experience, threatening to seek sanctions did far more to inflame emotions and inflate billable hours than deter attorney misconduct.
Perhaps the greatest harm of personalizing litigation animus is the lost opportunity for early claim resolution. I never worked with an employer that was happy to extend litigation. The sooner they said goodbye to the judicial system, the happier they were. However, when opposing clients and opposing counsel pour vitriol on each other, early claim resolution opportunities melt away.
Risk aversion stems from tunnel vision, and it's not necessarily in the employer's best interest. Instead, it's what best protects HR and defense counsel from being second-guessed.
As I discuss in this column, instead of risk management we get risk avoidance, regardless of cost.
In my experience, this type of "defensive medicine" impairs HR's ability to be a true human resource. Instead, employees get a cold and harsh compliance approach, which includes HR staples I've previously taken issue with: the annual performance review, the performance improvement plan, the Last Chance Agreement, progressive discipline, at-will disclaimers, onboarding and documentation.
Perhaps ironically, I don't believe the defensive medicine approach is optimal, even from a claim prevention standpoint. In most cases, claims don't arise from an employer discriminating based on race, sex, age or disability, or failing to observe laws that govern family and medical leave or wage and hour rules. They arise from employees feeling dehumanized. And that's what compliance-obsessed HR and legal counsel unwittingly contribute to.
The Attorney to Hire
I'm not suggesting employers hire someone neutral. As an employer, I'd still want an advocate. When defending claims, I never had a problem asserting that the employee's firing or other adverse employment action had nothing to do with alleged protected activity or classification. Yet this didn't automatically mean the employee was treated properly or wisely. Good claim defense should not be conflated with good management.
When hiring an attorney, employers shouldn't be swayed by counsel's zealous passion for the management cause. Hiring someone who has a career of representing both employers and employees is perfectly acceptable. Look for an attorney who understands the field, is skilled in the craft, and has a broad perspective of what goes wrong in the workplace and why claims get filed. This would be an attorney who isn't ego-driven to win, doesn't demonize the other side and proactively explores early claim resolution opportunities. It's an attorney whose advocacy is leavened by compassion and understanding that regardless of the legal validity of employees' claims, they're most likely rooted in mishandled workplace relationships.
Now that's the attorney I would hire!
Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to email@example.com.