Texas-Sized Employment Terminations Via Twitter

Human Resources Managers know the drill when they want to terminate an employee.  They bring the individual into a private room, tell him he is terminated, cite a couple of reasons for the termination decision, maybe give him a termination letter, and escort him out of the workplace.  Thereafter, the termination decision and reasons for it are typically only shared with those in management with a legitimate “need to know.”

But as they say, “everything is bigger in Texas,” including apparently, the way one announces an employee’s termination.  And in “BIg D” they have taken it to a new gunslinging level.

Dallas, Texas Police Chief  David O. Brown routinely announces the terminations of his law enforcement officers via his Twitter account, @DPDChief, to his 7,000 plus “followers.”  Limited by Twitter’s 140 characters, he then posts lengthier explanations for the termination on  Facebook for several thousand “friends.”

One recent example:

“I have terminated ######### for public intoxication, damaging a person’s property, and making offensive contact with a person.”

(I omitted the name – blame the lawyer in me).

Part of me likes the boldness of the strategy, and the stated goals of ensuring government accountability and transparency.  It also sends a strong message to other employees not to engage in the same conduct.  And the Dallas Police Department is doing some very creative things utilizing social media as a law enforcement strategy to catch bad guys.

But is it a sound personnel practice?  Let’s see…

Humiliating the employee to thousands of strangers?  Check.  Inviting a potential defamation lawsuit?  Check.  Locking in the employer’s position in future litigation in 140 characters or less?  Check.  Giving the City’s lawyers nightmares?  Check.  (Of course, many people would say giving lawyers nightmares is not necessarily a bad thing).

I would assume the Chief vets his Twitter posts with his legal counsel before their mass distribution.   But as anyone who uses Twitter knows, typos occur, mistakes can be made, and words can be misinterpreted.  And in employment lawsuits, words matter.

Chief Brown found out the dangers of Twitter recently:

Chief David O. Brown ‏@DPDChief  Mar 11

Today I terminated Officer Edgar Garcia for being involved in a disturbance resulting in his arrest for assault Family Violence.

Chief David O. Brown ‏@DPDChief  Mar 11

Correction: the officer terminated was Officer Edgar Garcia Martinez  

I hope the Police Department doesn’t employ an “Officer Edgar Garcia.”

From a purely legal perspective, the risks of such a practice seem to greatly outweigh any potential benefits.  Many times I have defended employers in lawsuits where it was clear the employee pursued litigation simply because he/she felt “humiliated” in how the termination was handled.  The employee was angry, feeling either the termination meeting was unduly harsh, or embarrassed by being escorted off the premises in full view of co-workers.

Now imagine the employee’s motivation to sue after having his termination and the reasons for it publicly aired to thousands of people.  Oh, and the employer still needs that little thing called “evidence” to back up the assertions in the tweet.

As any cowboy will tell you, “when you mess with the bull, you sometimes get the horns.”  Save yourself a legal goring – don’t post terminations or the reasons for them on social media sites.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Better Call Saul

“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
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter@HRGeniusBar @wagelaws

Lance Armstrong and Litigation Leverage

Despite reportedly facing $135 million in liabilities stemming from numerous lawsuits filed against him, disgraced U.S. cyclist Lance Armstrong recently stated in an interview:

“I’m committing to working through them,” he said of the lawsuits, “and whether it’s settling cases or whether it’s fighting some cases — because some have merit, some don’t.  But I’m committed to the process and that’s probably as much as I would and could say about it. That’s a tricky area there.”

Mr. Armstrong, you are correct – it is a “tricky area”.  Given the financial troubles you are now facing, I humbly offer some free legal advice:  NEVER voluntarily and publicly state that any lawsuit against you has “merit.”

I don’t care if deep down inside you think it might.  I don’t care if the whole world thinks it does.  Even if you have been caught dead to rights, if you are not legally required to do so, do NOT voluntarily admit that a lawsuit filed against you has “merit.”

Your “merit” statement can and will be used against you.  Expect to be repeatedly asked the same set of questions about your “merit” statement at your upcoming depositions, including: (1) “Which specific cases have merit, and which do not?”; (2) “Does my client’s case have merit?”; (3) “Why do you consider the other cases meritorious, but not my client’s?”; and (4) “For those cases that have merit how much are you offering to settle them for?”

Imagine then the lawyers from the various lawsuits exchanging copies of their respective deposition transcripts  to see if you admitted in another deposition that their case had merit.  Strap on your trusty bike helmet – it’s going to be a bumpy ride.

Finally, remember that litigation, like the Tour de France, has many “stages.”  As you noted, one such stage involves settlement discussions.   Settlement discussions are negotiations.  To negotiate successfully one must fully utilize whatever “leverage” one has.  In broad strokes you telegraphed your legal strategy, and admitted some claims have merit.  Some of your leverage just disappeared faster than you did down the French mountainside.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

HR Tip – Nothing Good Comes from a Personnel File Request

Ever heard of that old saying “nothing good happens after 1 a.m”?  It’s a recognition that a simple act often increases the risk of getting into some kind of trouble.

Human Resource Managers should view an employee’s simple act of requesting a copy of their personnel file the same way – nothing good ever comes from it.  Typically, an employee requests a copy of his personnel file only when there is an actual or potential dispute brewing with his employer.  In fact, it is usually one of the first steps an employee (or ex-employee) takes in filing a claim against the employer.

So treat such requests carefully.  Assume that it is likely a claim will be filed.  Follow any applicable state laws in responding to them, and make sure that any documents that should not be in the file, or are not required by law to be produced, are taken out.  Always remove any emails or other documents evidencing communications between the company and its attorneys.  And then hope you never hear from the employee again.

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter
:  @HRGeniusBar
@wagelaws

Fight Club’s First Rule of HR – You DO NOT Talk About Your Lawyer

Remember the classic scene in the movie Fight Club?  Brad Pitt, founder of the “Club,” is talking to prospective pugilists about its rules.  He boldly declares the First Rule of Fight Club: “you do not talk about Fight Club.”  He then gives the Second Rule: “you DO NOT talk about Fight Club.”  Needless to say, everyone got the point – keep your mouth shut to avoid trouble.

In homage to Fight Club’s simple genius, I offer a modified version of this Rule for Human Resource Managers:

YOU DO NOT TALK ABOUT YOUR LAWYER.

You see, part of my job as a management side employment lawyer is preventative in nature:  I  consult with companies before they make a termination decision.  I do so in order to help them (hopefully) avoid lawsuits, and to put them in the best position to defeat any litigation that ensues.  Among other things, the client and I discuss the rationale(s) for the termination decision, the performance history of the employee, the existence (or lack thereof) of supporting documentation, whether the company is following its own disciplinary policies and/or practices, and the legal risks involved if the employee falls into a “protected” classification under discrimination laws.

These attorney-client discussions are treated under the law as “confidential” – they are protected from involuntary disclosure by the “attorney-client privilege.”  I cannot ethically disclose them.  Likewise, the company representative I am talking with cannot generally be forced to reveal them at deposition, in an interrogatory answer, or at trial.  This protection is critical, as it allows the client and I to engage in candid discussions of sensitive issues, without the fear of later disclosure.

Unfortunately, HR managers often violate my modified Rule. They say things like “we checked with our lawyer and he told us ….,” or “we will talk with our lawyer and get back to you”  in termination or disciplinary meetings with employees, or when discussing “reasonable accommodations” with them. To a degree it is understandable, as part of the normal  “give and take” of a conversation with an employee.

Moreover, on their face such remarks seem harmless.  But in reality, they are subtly dangerous.  Why? First and foremost, the client may have just waived the attorney-client privilege.  Remember, the privilege is for the client’s benefit.  But it can also be waived by the client. Any statement that references the content of a client’s prior conversation with their lawyer will likely be construed (or at least argued) as a “waiver” of the privilege.

If waived, the employee’s lawyer could ask the client probing questions about the details of that conversation, including all statements made before the decision to discipline, discharge or not accommodate.  This could result in the disclosure of comments that, even if not acted upon by the client, will be presented as evidence of a discriminatory or retaliatory intent, and/or at least an awareness of the potential for litigation.  Such statements will be trumpeted as “smoking guns” for the company’s “real” motivation behind its decision.

Second, such comments often “raise a flag” in an employee’s mind.  The employee thinks his situation has become “serious” –  for goodness sake, the company just told him/her that its lawyer has become involved!   With this knowledge, the employee usually does one of a couple of things: (a) he becomes very sensitive and files a “retaliation” claim for any adverse employment action taken against him, believing it was caused by his raising of a “legal” issue; or (b) goes out an immediately retains his own lawyer to advocate on his behalf; or (c) both.

None of these outcomes are positive for the company.  So apply the First Rule of HR:

YOU DO NOT TALK ABOUT YOUR LAWYER

Mitchell W. Quick, Attorney/Partner
Michael Best & Friedrich LLP
Suite 3300
100 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
414.225.2755 (direct)
414.277.0656 (fax)
mwquick@michaelbest.com
http://www.linkedin.com/in/mitchquick
Twitter: @HRGeniusBar
@wagelaws