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.

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

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