“You were smart to call me. Now you just sit back, relax and let a professional take over.” Saul Goodman – Breaking Bad
Saul Goodman, the street smart, delightfully sleazy criminal defense attorney from the ground breaking television drama, Breaking Bad, had a simple but memorable marketing slogan to attract clients – “Better Call Saul.” Unfortunately for most of his clients (but good for Saul), they only called after they had gotten into trouble with the law. It then became all about damage control.
But one client, Walter White, the cancer stricken high school science teacher turned virtuoso meth lab cook, often did call and consult with Saul before he took certain actions that he knew could potentially result in serious legal consequences. Perhaps it stemmed from his scientific background, but Walter would often discuss options with their potential outcomes and associated legal risks with Saul before ultimately settling on a course of action.
Human resources managers would be well served to follow Mr. White’s lead in one limited respect. (NO, I repeat, NO, not cook meth nor plan criminal acts). Companies can reduce the possibility of significant monetary damages and legal expenses from employment law claims by investing a little time and money in consulting with their legal counsel about difficult employment situations before litigation is commenced. Below are just a few of scenarios where the “call to Saul” (or whoever your employment lawyer is) should be made:
- An Employee (Or His Attorney) Makes A Personnel File Request. The employee is not asking for her personnel file to check for spelling errors, or to make sure her emergency contact information has been updated. The employee wants ammo, or better yet, the actual “smoking gun.” The request is the legal equivalent of a warning shot across the bow. An employment attorney can advise on how to respond to the request, including what not to provide, as well as establishing parameters to ensure the preservation of files and emails for future litigation.
- The Employer Wants To Terminate An Employee Who Falls Into One Or More Protected Classifications. As there are almost 100,000 discrimination charges filed with the Equal Employment Opportunity Commission (“EEOC”) every year, a company who wishes to terminate an employee who falls into a “protected classification” such as age, race, gender or disability faces potential liability. As literally every employee falls into some protected classification, the company should make sure that it has all of its legal ducks in a row before termination. Talk through the facts, evidence and reasons for the termination with employment counsel, paying special attention to how the company has disciplined similarly situated employees not in the same protected classification(s).
- The Employee Mentions The “L Word”. Frequently employees claim that they are contacting a “lawyer,” or intend to file a “lawsuit.” Although many times this is simply bluster, sometimes they actually follow through. Regardless, the simple mention of these words greatly increases the likelihood of the employee filing a retaliation claim in the event the company takes an adverse employment action against him. Any discipline or discharge that comes shortly after utterance of an “L word” will likely trigger the filing of a retaliation claim. Bottom line – when an employee starts talking about his lawyer, you should probably call yours.
- The Government Comes Knocking. If you receive a letter, phone call or surprise visit from a government investigator representing OSHA, the Department of Labor, the EEOC, or OFCCP, contact your employment lawyer immediately. Often, steps can be taken to narrow down the government’s burdensome requests for information, and secure adequate time to gather relevant information in order to prepare a coherent response.
Just like an ounce of prevention can be worth a pound of cure, a billable hour spent on one of the tricky employment situations described above could avoid potentially costly legal consequences. Take a page out of Walter White’s (cook)book and make the call.
Mitchell W. Quick,
Attorney/Partner – Michael Best & Friedrich LLP
Suite 3300, 100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Twitter: @HRGeniusBar @wagelaws