A Quick HR Limerick

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In honor of St. Patrick’s Day (and being 1/4th Irish),  I offer this limerick as a cautionary tale to all human resources professionals dealing with litigious employees and bad bosses:

There once was an employee named Jill
Her job left her feeling quite ill
Her touchy boss wouldn’t stop
Brushing against her top
So she called HR Manager Bill

Old Bill hailed from the heartland
Fond of PBR and polka bands
Sloppily investigated Jill’s claims
Assigned the boss no blame
Jill quit and made legal demands

Still other employees complained
Of discrimination, harassment and pain
About poor communication
And denials of vacation
But, alas, the reports were in vain

For the boss was a tough taskmaster
His people skills a disaster
Get the damn work done
It’s not a charity that he runs
Nor was it his job to flatter

Then came an employee named Jake
Not enough money did he make
He and a hundred others sued
Seeking overtime wages due
His lawyer bought a mansion on a lake

Though HR’s plate was already full
Lawsuits and claims took their toll
Job duties pushed aside
To fight the legal tide
Company morale sunk exceedingly low

A dark knight heard the discontent
Swaggered in, spewed promises, and went
Employees sniffed the hot air
Were enchanted by the aroma of fair
And unionized the establishment

Then, despite trying his best
Bill was often second-guessed
Monday morning quarterbacks
Made him slow to react
So Bill retired and moved southwest

 

 

 

 

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

Unemployed – the Newest Protected Classification

Buried in the rush of the holiday season, on December 11, 2013 the City of Madison, Wisconsin amended its Equal Opportunities Ordinance to include “unemployment” as a classification protected from employment discrimination.   (A similar effort failed at the Federal level a couple of years ago).

In rather circular fashion, Madison’s Ordinance defines “unemployment” as “the status of not having a job or employmnt [sic], being available for work and seeking employment.”  Section 39.03(2)(oo).

Thus, companies with operations in Madison may not refuse to hire an individual simply because the person is unemployed.  Nor can they post advertisements (or job descriptions) that list as an eligibility requirement that the applicant be currently employed.  Employers are also prohibited from discriminating against unemployed applicants in terms and conditions of employment, so presumably they could not offer lower starting pay to unemployed applicants.

The Ordinance does throw employers a small bone.  It somewhat clarifies that unemployment “does not mean, nor is it unlawful discrimination to inquire into or to consider or act upon, the facts and circumstances leading to the the [sic] status or condition of unemployment.” (Yes, there are two typos in the Ordinance’s two sentence definition of “unemployment,” supporting the notion that this change was hastily made).

Beyond the typos, however, the problems with the Ordinance are numerous.  First, the Ordinance affords the temporary status of being unemployed the same legal protections as  immutable characteristics such as race, gender, national origin, and disability.

Second, (and perhaps incredibly), the status of “unemployment” is now the 27th “protected classification” under the Ordinance, joining other narrow protected classifications like “victim of domestic abuse.”  (What employer either refuses to hire or fires someone because of that?).  In short, employers in Madison face more legal compliance land mines.

Third, and most importantly, the Ordinance creates more questions than it answers, such as:

(1) Is an applicant who has been unemployed a mere one or two days at the time she applies for a job protected from discrimination?  Or does the applicant have to be unemployed for a period of several months? (It appears there is no minimum time limit).

(2)  Is an employer now, as a practical matter, prohibited from asking on its job application whether the applicant is currently employed, or for the name of the applicant’s current employer?   These routine employment application questions may result in the disclosure of information that the applicant is actually unemployed, thus putting the employer on notice, and giving the applicant a theory in which to file a discrimination claim if not hired.

(3) Does the Ordinance allow or prohibit employers from taking into consideration that an applicant had long periods of unemployment in the past, but is currently employed?  (It would seem to allow this).

(4)  Is an applicant who is currently employed at the time of application, but then becomes unemployed while the application is pending, considered “unemployed” and protected from discrimination under the Ordinance? (It would seem the individual would be  protected).

I have posed these and other questions to the City of Madison’s Department of Civil Rights Equal Opportunities Division, but have not received answers as of yet.  Stay tuned.

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

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

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