Sue Early And Sue Often

“You got to know when to hold ’em. Know when to fold ’em.
Know when to walk away. Know when to run.”

Kenny Rogers, “The Gambler”

As certain as death and taxes, each day in this great country someone, somewhere is filing a head scratchingly stupid lawsuit.  “Sue early and sue often” seems to be the mantra in our litigious society. The latest example comes from Sin City, where a gambler is suing a casino to recover his massive gambling losses. 

The gambler’s argument?  He was too drunk to know what he was doing.  As Dr. Seuss might say, he drank in the limo on the way to the casino, he drank playing Keno*, he drank at dinner, he drank hoping to be a winner, he drank at the gaming table, he drank because he was able.

The gambler admits he was drunk for almost 3 days straight, and lost hundreds of thousands of dollars in his “blackout” state.  Now he wants his money back.  His theory?  The Las Vegas casino kept providing him “free” drinks and loans to gamble with when they knew he was blitzed.  In other words, he was the sloppy drunk overserved victim.

Personal responsibility?  That’s for losers, man!  Bad choices?  Give me a break (and a refund)!

So listen to Kenny Rogers – the man is a Grammy winning singer/songwriter, actor, roasted chicken magnate, and suspected plastic surgery aficionado after all.  Don’t gamble that your company won’t get sued.  You will, and often for ridiculous reasons.  (Remember the $2.9 Million Dollar McDonald’s lawsuit over spilled coffee?  Coffee is hot?  Who knew?)

Increase the odds of your company winning an employment lawsuit  by following sound human resources practices.  First, don’t hire losers.  Review employment applications carefully, contact employment references, and do background checks.  Second, administer clear written policies in a non-discriminatory manner. Third, document all significant personnel decisions.  Fourth, honestly communicate the reasons for termination.  And finally, don’t drink on the job.

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

*Not sure if he played Keno, but it rhymes.

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

Just Another Day

How did you celebrate Human Resources Professionals Day?  Human Resources Professionals have a tough job because of the many hats they have to wear, including:  rule enforcer, policy drafter, law follower, negotiator, confidante, investigator, advocate, interviewer, recruiter, and morale booster (to name but a few).  It’s not glamorous work, and sometimes involves highly emotional, sticky situations.  Despite this, it is often underappreciated in the corporate world, with “no news is good news” being the unstated measure of success.

So do yourself a favor – take a mental break, go for a walk, or enjoy your favorite beverage.

And then get ready for the next day of challenges.

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

3 Basic Rules For Employee Handbooks

Many employers have “Employee Handbooks” or “Employee Manuals” containing various employment policies. I think they are a necessity for most workplaces. Often, however, I see the same mistakes made by employers that utilize handbooks.  Although there are numerous tips regarding how to draft and utilize a handbook effectively, here are 3 basic rules to consider and apply:

1. Keep it (Semi) Brief.  Believe it or not, I have reviewed handbooks up to 100 pages long.  Handbooks should not aspire to be the length of a Stephen King novel.  Employees lose the will and desire to read the Handbook after about the first 2 pages anyway, so keep it brief.  Cover the main points, and wrap it up.  Shoot for 30 pages or less.

2.  Distribute the Handbook/Manual/Policies.  I know it seems obvious, but some employers guard their Handbooks/Manuals/Policies more closely than the formula for Coca Cola, and don’t actually give them to their employees.  Sometimes they only distribute them to “supervisors.”  Employees aren’t mind readers – if you want to apply a handbook’s policies to employees, you need to actually give it to them.   Post it on your Intranet, hand it out at new employee orientation, and/or email it to employees.

3.  Update your Handbook Periodically.  Having a handbook that was last updated during the Reagan Administration is sometimes worse than not having one at all.  Employment laws change.  New employment laws are constantly being implemented.  Your workforce may have grown to a size where you are now covered by certain laws (such as the FMLA’s 50 employee threshold).  Consequently, it is critical that you review and update your handbook periodically.  Try to do so at least every two years.  If you can review and update it annually, you are ahead of 90% of all other employers on the road to compliance.

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

No Good Deed Goes Unpunished

Over my 22+ years of counseling companies with respect to challenging personnel situations, I have often advised clients that “no good deed goes unpunished.”  I have found it to be particularly true in the employment context.  I have repeatedly seen well intentioned Human Resources Managers do “good deeds” for marginal or even “bad” employees, only to be “punished” later in a variety of ways.  Here are just a few examples:

1.  Failing to terminate an employee who clearly violated a major work rule and was at the termination stage under the company’s disciplinary policy because you didn’t have anyone readily available to replace him.

PUNISHMENT:  You are stuck waiting for the employee to screw up even worse.  And good luck trying to terminate someone else for the same offense – if you do, and that other person is in a “protected classification,” you will be sued for discrimination.

2.  Despite poor employment references, hiring an applicant on the recommendation of a friend.

PUNISHMENT:  Thanks “friend.”  You are now saddled with a bad employee for a year or more while you counsel, document and line up the termination.

3.  Giving a poor performing employee an annual pay increase because you didn’t want to send “too negative of a message.”

PUNISHMENT:  The employee hears a different message (“you’re doing ok”), and doesn’t improve his performance.  He is stunned and angry when later terminated.  You get to explain in the subsequent discrimination case that you actually thought the employee was terrible (despite rewarding him with more money).

4.  Writing a positive letter of reference for an employee who was terminated for poor performance because you “felt sorry” for her.

PUNISHMENT:  The letter of reference will be “Plaintiff’s Exhibit A” in the subsequent unemployment, discrimination or wrongful termination claim.  How could the company have terminated such a “great” employee?

So save your good deeds for someone who deserves them – your favorite charity, family or friends.

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

8 Simple Rules for Testifying as a Witness

At  one point or another in their career, every human resources manager will be required to testify as a witness, whether it be in a deposition, arbitration, unemployment or worker’s compensation hearing, or trial.  These situations are stressful and unpleasant.  To calm your nerves and present yourself as an effective witness, apply the following rules:

1.  Before testifying, review all of the facts/details so that you know them “cold.”  The devil is in the details.

2.  Listen to the question asked.  Really listen.

3.  Answer only the question asked.  Do not ramble on or go beyond the scope of the question.  For example, if the question is “Do you know John Smith?”, the answer is “Yes.”  It is not  “Yes, he is a co-worker of mine.”  Although that may be true, you were not asked that question.  Get into the mindset of only answering the question presented.

4.  Tell the truth.  You likely have been sworn in under oath.  Lying will destroy your case, and you could face a perjury charge.

5.  Do not guess, assume or speculate regarding anything.  Don’t say things like “I probably said…”

6.  If you truly don’t know or can’t recall the answer, say you “don’t know” or “can’t recall.”

7.  If your attorney objects to the question, immediately stop talking.  Do not answer unless further instructed to do so.

8.  Do not argue with the questioner, or answer the question with a question.  Keep calm.

There are many other tips and strategies an individual can employ to be an effective witness.  Simply following these 8 rules will make you a stronger, more credible witness than most, and get you off the hot seat quicker.

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 – Talk To The Employee, Not His Parents

“What we got here is a failure to communicate” – Cool Hand Luke

I am amazed at how often I hear from human resource managers that an employee has had his/her parent(s) call HR to discuss the child’s employment situation.  And I’m not talking about the parent calling in to report that their adult son or daughter (who undoubtedly has a cell phone) is sick and won’t be in.  No, I have even heard parents who called and acted as an advocate for the employee in disciplinary situations, or pressed for an explanation as to why a medical expense was not covered by the health insurance plan.

Perhaps it is simply another symptom of the “helicopter parent” generation, and the child was never really taught to be self-sufficient. Or maybe it is because the kid only knows how to text, as opposed to engaging in an actual face-to-face conversation.

Regardless of the cause, HR managers should avoid such communications if at all possible.  First, the parent is not your employee.  Assuming the child is not a minor or the legal ward of that parent, you have no legal obligation to talk to that parent.  Second, as what is discussed is often confidential in nature, and you have no idea whether the employee actually authorized the parent’s call, you could face an irate employee who claimed you violated his privacy.  Third, anything you say to that parent could be used against you as evidence in a later lawsuit by the child.

So don’t put yourself in this no-win situation.  Politely tell the parent (or spouse) that you can only talk to the employee, and will await their call. Then hang up.

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