According to a recent survey, 57 percent of American employees admit to swearing at work. (To me, that seems low. Also, count me in the “yes” column.)
Where is the line between swearing as harmless workplace banter and swearing as harmful, unlawful harassment?
Consider these two examples.
In Passananti v. Cook County, the 7th Circuit overturned a $4.2 million jury verdict in favor an employee who claimed that her boss had subjected her to sexual harassment by calling her a “bitch” on “numerous occasions” over a “progressive period of time.”
The court started its analysis of whether the use of the word “bitch” constitutes sex-based harassment by dismissing any argument that its common use has neutered the word:
We recognize that the use of the word “bitch” has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law.
The court concluded that even though “bitch” is sexually based, its use must be examined in context to determine whether it constitutes harassment “because of sex.”
As with so many other things, when gender-specific language is used in the workplace, these cases and others recognize that context is key. We must proceed with “[c]ommon sense, and an appropriate sensitivity” to that context to distinguish between general vulgarity and discriminatory conduct or language “which a reasonable person in the plaintiff’s position would find severely hostile or abusive.
In Griffin v. City of Portland, the U.S. District Court for the District of Portland faced a similar issue — whether an employee of deeply religious convictions could claim religious harassment based on her co-workers’ repeated taking of the Lord’s name in vain.
Like the 7th Circuit in Passananti, the Griffin court concluded that context matters:
Suggestions in the record that profanity was used even when Ms. Griffin was not present indicate that much of it was not motivated by her religious beliefs. As I interpret the guiding precedent, even the category of profanity that uses “God” or “Jesus Christ” as part of a curse does not necessarily trigger the “because of” standard. If the speaker used the terms out of habit, perhaps without even thinking of their religious connotations, and not because of Ms. Griffin’s beliefs, then such language would not satisfy the “because of” standard and could not be used to support the claim.
With salty language, context most definitely matters. For example, when I was 12 years old it was okay ask for the “f**king salt” among a group of other 12 year old boys at summer camp; not so much with my parents at the dinner table at home.
Yet, in the day-to-day management of your employees, you should not get bogged down in the legal minutia of whether one employee calling another employee a “bitch” is actionable unlawful harassment. Employers should take seriously all harassment complaints in the workplace. If an employee complains about profanity, don’t ignore the complaint. Most cases of workplace profanity won’t turn into a lawsuit. Nevertheless, when it rears its head, use it as a tool to educate your employees about appropriate versus inappropriate language, the value of context when choosing words, and the importance of being tolerant and considerate around all employees. Otherwise, the context in which you might find yourself is that of a lawsuit.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Over the weekend, the New York Times reported that Bill O’Reilly paid $32 million to settle a claim of sexual harassment brought against him by a former co-worker.
It’s horrible what I went through, horrible what my family went through. This is crap. It’s politically and financially motivated. We can prove it with shocking information. We have physical proof that this is bullshit.
Dude, I’m going to put this as nicely as possible.
YOU ARE NOT THE VICTIM HERE.
In the same interview, O’Reilly claimed, “I’ve never had one complaint filed against me by a co-worker in any human-resources department in 43 years. That encompasses 12 different companies.”
One of those former co-workers, Megyn Kelly (who settled her own claims of harassment against Fox News), tells a very different story.
Bill O’Reilly playing the victim card is exactly why we still have such a huge problem with sexual harassment. If someone accuses you of harassment, there are two things you absolutely cannot do.
The American corporation has a large harassment problem. From Bill O’Reilly, to Harvey Weinstein, to Roy Price, to Uber, to the small business down the street from you, to maybe even your own shop, sexual harassment is a massive issue.
When a harasser claims that he is the victim, he exacerbates the myth that sexual harassment in the workplace is not a problem. When you sexually harass women, when you send women unsolicited and unwanted pornography, when you force women into non-consensual sexual relationships, you are not the victim, they are. And to say anything else perpetuates the falsehood that harassment can be ignored and swept under the rug.
As an advocate for employers, let me say that this is not acceptable. It never was (despite the long history of harassment to which women have been subjected), and it is certainly no longer is. This shameful misbehavior, the corporate cultures that enable it, and the after-the-fact actions that attempt to justify it, must stop.
So shame on Bill O’Reilly and anyone making excuses for him.
I only wish he understood his disgraceful misconduct and his role in enabling that of others.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
They argue that inappropriate emoji use might lead to misunderstandings and harassment liability.
You may want to look into having a custom set of emojis defined for use throughout the company (and leave out the easy to misinterpret emojis, like the winky face, tongue out, kissy face, or racially diverse options). It’s not that some emojis are inappropriate on their own, but the context makes a big difference. Also, if an employee is not fluent in emoji, they might misunderstand what they are saying, or being told/asked, if an emoji is used. Using the wrong emoji could be seen as evidence of a hostile work environment, discrimination, or sexual harassment. As such, if you are going to allow the use of emojis, you may want to have training available to employees on what the emojis mean.
They are also corporate killjoys. (And we wonder why people can’t stand lawyers.)
This might be silliest thing I’ve read in a long time. Most employers already have an emoji policy. It’s called your harassment policy. You do not need a separate policy to forbid your employees from using what is becoming an acceptable form of communication. Heck, even courts are starting to use emoji in opinions.
We can have a healthy debate over the professionalism of emoji use in business communications (like this one). Indeed, according to one recent survey, “nearly half (41%) of workers use emojis in professional communications. And among the senior managers polled, 61% said it’s fine, at least in some situations.” My sense is that your view of this issue will depend on a combination of your age, your comfort with technology, and the age of your kids.
As for me, I use emojis all the time, even at work. Email is notoriously tone deaf. It’s easier for me to drop a ? into an email to convey intent than to tone down my sarcasm.
In other words, ?. Emojis are ?, and its perfectly fine to ❤ them at work. ✌
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Do you know what to do if one of your employees dies on the job?
Here are nine steps to follow: 1. Call 911, ASAP. There is never a reason to wait to inform the authorities, period.
2. Immediately thereafter, notify the employee’s emergency contact person, preferably in person. This news should not be delivered over the phone if at all possible. If you must deliver the news via a phone call, arrange for a company representative to meet the family, likely at the hospital.
3. If the death is work-related, contact your nearest OSHA Area Office, or OSHA’s national 24-hour hotline at 1-800-321-OSHA. All fatalities must be reported to OSHA within 8 hours.
4. Notify executives and HR, and other employees with a need to know what happened.
5. Notify your remaining employees of the fact of the fatality, and let them know that details will follow.
6. Follow your internal procedures for contact with the media. If you do not have any such internal procedures, or if you are not comfortable with anyone in your organization facing the media, engage a public relations firm, as soon as possible. You will need someone to say something. “No comment” is not a good statement under these circumstances; it will look like you’re hiding something.
7. Show extreme sensitivity to the family of the deceased. Who do they want to be their contact person? Who will disseminate funeral arrangements and how? What are the family’s wishes regarding flowers, donations, calling, visitations, and other contact? How and when does the family want to handle necessary employment issues (medical benefits, life insurance, workers’ comp, retirement accounts, etc.)?
8. Designate one internal contact person to disseminate information to employees, and for employees to ask any questions. Unless the family directs otherwise, instruct employees not to contact the family.
9. Arrange for grief counseling or other mental-health services for those employees who witnessed the accident, or are otherwise impacted.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
On last night’s season nine premier of HBO’s “Curb Your Enthusiasm,” Larry David was faced with this age old problem.
How does an employer handle an employee who skips work because she’s constipated?
Larry handled it by foisting his problem employee (his personal assistant) onto someone else.
What should you do?
It depends.
First, is constipation an ADA-protected disability?
Likely, the answer is yes.
The ADA defines an “actual disability” as “a physical or mental impairment that substantially limits one or more major life activities.”
Major life activities not only include the handling of day-to-day manual tasks, but also the operation of major bodily functions, including the digestive system and the bowel. As a result, severe constipation likely qualifies.
Assuming that constipation that is severe enough to keep one home from work qualifies as an ADA disability, what does one do with an employee who simply fails to come into work, without notice, because of the disability?
Take a look at your attendance policy. Does it penalize employees who no-call/no-show? A protected disability (or FMLA qualifying event, if you are FMLA-covered) does not justify an employee to ignore your attendance policy, or its requirements. If your policy requires that an employee call out (when feasible), then you can enforce that policy even if the absence is related to a medical condition.
Assuming the employee asks for a few days off to get things moving, you likely have to grant the request as a reasonable accommodation. For the record, I would not recommend Larry’s offered accommodation, a desk chair that doubles as a toilet.
Your homework assignment? Dust off your attendance policy and review its requirements for sick employees missing work. If you do not have call-in/call-out procedures in place, consider adopting them so that you are sufficiently positioned to discipline your AWOL employees.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Ritarose Capili was a sales associate at a Finish Line store in California. When she was hired in August 2013, she was required to sign an agreement that required her to arbitrate employment-related disputes with Finish Line.
In mid-2014, after she was diagnosed with diabetes and anxiety that was exacerbated by sleeping issues that occurred during her pregnancy, Capili requested a leave. She was terminated July 8, 2014. Capili sued Finish Line claiming that she was fired because of her pregnancy and because she tried to exercise her legal right to take leave under California’s Fair Employment and Housing Act, and that she wasn’t given a reasonable accommodation for medical conditions related to her pregnancy. When Finish Line moved to compel the case to arbitration, the U.S. District Court for the Northern District of California ruled that the arbitration agreement was both procedurally and substantively unconscionable.
The Ninth Circuit appellate court agreed. The Court held that the agreement was procedurally unconscionable because it was “adhesive” in that it was offered “on essentially a ‘take it or leave it’ basis.” They further held it was substantively unconscionable because its cost sharing provision “imposes substantial nonrecoverable costs on low-level employees just to get in the door, effectively foreclosing vindication of employees’ rights” and because it contained judicial carve-outs that allowed Finish Line, but not Capili, to seek judicial resolution of certain specified claims.
Capili v. The Finish Line Inc., Case No. 15-16657 (9th Cir. July 3, 2017).
Impact: The courts place significant restrictions on the enforceability of arbitration agreements so they do not effectively prohibit the employee from enforcing their rights.
Mark T. Kobata and Marty Denis are partners at the law firm Barlow, Kobata and Denis, which has offices in Beverly Hills, California, and Chicago. Comment below or email editors@workforce.com.
Employee health benefits renewal season is upon us, and you know what that means: It’s time to think about your company’s health and benefits coverage offering. And you’re likely not looking forward to it.
Creating plans that have a meaningful impact on employees’ health can be a tough task, especially when few employees truly understand the value of their benefits package and only 52 percent say they are happy with them. But health benefits coverage is one of a company’s biggest investments, easily reaching as much as 30 percent or more of overall employee compensation, so taking the time to evaluate your strategy is important.
In an increasingly competitive environment, your health benefit plan needs to be flexible enough to meet the needs of employees across multiple generations, while also simplifying administration and controlling premium increases. Surprisingly, the solution isn’t as complex (or costly) as you’d think. You can achieve this by simply rethinking your plan design and picking the right broker.
Today’s workforce expects more from their employers and benefits. Shouldn’t you expect more from your benefits broker? Start by asking your broker these six questions.
What does the digital experience look like?
Services like Netflix, Spotify and Amazon Prime have infused expectations of digital simplicity, choice and instantaneous delivery into our DNA. These expectations include our health benefits. In fact, 84 percent of people would rather digitally access and interact with their health insurance if given the option. This is an area where many insurance providers fall short, still requiring faxed or mail-in forms or expecting people to hold for 30 minutes to get a single question answered. Talk to your broker about end-to-end, instant and integrated digital options. A digital experience means that all the tools for evaluating, selecting and enrolling are available online, and information such as up-to-date balances is easily accessible. Check with your broker to find an option that works with your existing HR and payroll systems.
How much of my benefits spend is really providing value to my employees?
From the Insurance 101 file: Some 80 percent of the dollars invested in insurance reaches only 20 percent of the people. To some degree this is what you want. You want your insurance to cover people who need catastrophic or high-risk care, however there’s a point at which you’re providing benefits that really aren’t meeting the needs of your entire population. Check how much of their allocation your team has actually spent and what your expected premium increase is. Get your broker to understand the demographics of your workforce population (i.e. age, the composition, the types of services they value, etc.) so you can build your employee benefits strategy around that.
How can I create a plan that is flexible enough to appeal to employees of all ages?
People want the same flexibility from their health care coverage that they’ve come to expect in all other aspects of their lives. In fact, 83 percent of employees view choice in their health benefits as an advantage. Before renewing, figure out how much your employees are spending out of pocket and how this can be reduced. This reduction may actually mean less insurance. A lot of the time the out-of-pocket expense has nothing to do with the actual insurance costs. For example, a young millennial may be paying for things like massages or gym memberships out of pocket because their insurance just doesn’t cover it. By switching to a higher deductible but offering a health spending account or lifestyle spending account, you would actually reduce their total out-of-pocket spend. Discuss with your broker ways to incorporate this type of plan personalization.
How can I incorporate preventative health coverage into my plan?
With up to 75 percent of health care costs associated with chronic disease being preventable, not having the right programs in place means that you may be overspending and getting far less value from your investment. Ask your broker what opportunities can help you encourage a healthy lifestyle. Today’s workforce approaches health holistically, it’s not only physical, but also mental, social and financial. They expect a different level of support than prior generations have. Consider integrating supplemental health coverage like fitness reimbursement and stress management to your plan.
Is onboarding and communication support available with this benefits plan?
With more than half of employees saying they would like help from employers when choosing a health plan, it’s no surprise that HR teams spend a lot of their time guiding employees on benefit-related questions. Ask your broker if the proposed plan includes on-site roll-out and enrollment and what the ongoing customer support system looks like.
Can we trust you to be a partner in setting up our company for success?
Before renewing, consider what partnership and commitment your broker is bringing to you as an employer. The goal of a great broker should be to really understand your company’s needs and goals, put those goals before their own, and be a partner that participates proactively to help solve business problems in a meaningful way. The process for a Jan. 1 renewal date should not start in September or October, it should start midyear. You need enough time to strategically think about what you want to do with your benefit plan and how to get employees ready for any changes you want to make.
With the right broker partner the renewal process doesn’t need to be stressful. Take this opportunity to rethink your plan design and look at the cost effectiveness of your offering — you should expect real value for the dollars spent. Embrace technology and push your broker to have a meaningful impact on health and well-being.
Brian Ancell is U.S. president at employee benefits company League Inc. Comment below or email editors@workforce.com.
U.S. employers, including domestic divisions of India-based outsourcers, are curtailing their use of the controversial H-1B visa, which allows organizations to bring highly skilled foreigners into the United States to work. Simultaneously, other businesses are bulking up overseas offices or sending employees who are foreign nationals to work out of offices in their home countries.
Employers that have used the visas have been scrambling to revise policies ever since President Donald Trump’s victory in the 2016 presidential election when the controversial program was targeted for overhaul. Whatever workplace policies are being implemented, a sharp dip in 2018 fiscal year applications for H-1B visas makes it clear that employers aren’t waiting on legislation or federal edicts from new officials before they take action.
Applications filed by the April deadline declined for the first time since 2013, to 199,000 from 236,000 for fiscal year 2017. The 16 percent decrease is a sharp reversal from the previous five years, during which time applications for the visa rose a cumulative 90 percent.
U.S. Citizenship and Immigration Services, the Homeland Security department that administers H-1Bs, grants 65,000 of the temporary work visas annually to foreign workers with specialized skills, plus another 20,000 to foreigners with advanced degrees. The visas are good for three years and can be extended for another three.
In mid-July, the USCIS said it had returned all applications not selected in the annual April lottery the agency holds to award the visas. The USCIS has not released names of employers whose applications were accepted or signaled when that data would be made public.
To bypass potential H-1B problems, U.S. companies are increasing hiring in their overseas offices. Nicole Sahin runs a PEO, or professional employer organization, that helps major U.S. companies and fast-growth startups hire salespeople in 150 countries. Since late 2016, Sahin has seen a 30 percent jump in clients sending foreign nationals back to their home countries or hiring locally, all direct responses to coming changes to the H-1B.
Nicole Sahin runs a professional employer organization that helps major U.S. companies and fast-growth startups hire salespeople in 150 countries.
“There’s a lot of fear around it,” said Sahin, co-founder and chief executive at Globalization Partners in Boston. “Some employees want to leave the U.S. because they don’t feel like they’d have the security they had under the previous administration.”
Outsourcers Respond by Increasing American Workforce
Indian outsourcers, which accounted for 69 percent of all H-1B workers as of 2015, the latest available data, are taking some of the most drastic measures to deal with changing policies. After the Justice Department and USCIS announced stepped-up H-1B audits earlier this year, a handful of Indian outsourcers said they wouldn’t use the visas to bring as many workers into the country.
Infosys Ltd., which has received thousands of H-1Bs over the years, plans to hire 10,000 U.S. workers in the next two years and open four technology centers here. In June, Infosys paid $1 million to settle a lawsuit brought by the state of New York that claimed the outsourcer routinely abused the H-1B visa program, and in doing so, failed to compensate workers fairly or pay required taxes.
In late June, Wipro Ltd., another India-based outsourcer, said it had hired more than 1,600 U.S. employees over the previous six months, and that U.S. citizens represent more than half of its workforce here. That’s a substantial change from recent years, when the company was among the top five H-1B visa users in order to staff its U.S. offices with Indian workers.
Indian outsourcers’ new labor model will no doubt be welcomed by H-1B critics, who claim the foreign companies haven’t adhered to requirements of the visa program to attempt to fill jobs with Americans before handing them to immigrants. Critics also fault the program for allowing H-1B employers to pay local prevailing wages that generally are less than what most U.S. workers with similar jobs earn.
The same critics maintain loopholes and lax oversight have allowed companies such as The Walt Disney Corp. and Southern California Edison to lay off highly paid U.S. employees and replace them with lower-paid foreign workers, many of whom are outsourcer employees. In several highly publicized cases, the laid-off workers were required to train their replacements. Such practices have led to a number of lawsuits, including one filed by a group of former Disney World IT employees who maintain they were discriminated against for being American.
Big Boosts for Gig Economy, STEM Workers?
Uncertainty about the visa program could push employers to embrace the gig economy and hire independent contractors, said Yvette Cameron, senior vice president for strategy and corporate development for SAP SuccessFactors. If employers were using H-1Bs to lower costs, using gig workers who aren’t eligible for benefits or pensions is another way to keep labor costs low, said Cameron, whose job puts her in touch with thousands of SAP SuccessFactors customers.
Yvette Cameron is senior vice president for strategy and corporate development for SAP SuccessFactors.
Historically, U.S. companies relied on H-1B visas to hire foreign graduate students with science, technology, engineering and math degrees from American universities. However, H-1B reform and Trump administration immigrant policies have already put a damper on applications to U.S. colleges and universities from India, China and the Middle East. As a result, total applications from foreign students dropped 38 percent for fall 2017, according to the American Association of Collegiate Registrars and Admissions Officers.
Stepping up domestic STEM studies could help fill the gap left by fewer foreign grad student coming here. Companies have gotten accustomed to hiring employees who can hit the ground running, said Ron Hira, an H-1B expert and political science professor at Howard University in Washington, D.C. Having government agencies subsidize on-the-job training “might be a way to fill genuine gaps,” Hira said.
Employees also need to step up their training, said Katherine Jones, a partner and director of talent research at consultancy Mercer. Starting STEM education in elementary or high school could help, Jones said, as could projects such as the charter public high school Oracle is paying for that opens this fall on its Redwood City, California, campus in the heart of Silicon Valley. Coding schools and other types of short-term bootcamps that teach STEM skills are other options, Jones said.
Reforms Pending in Congress, White House
Ultimate responsibility for rewriting immigration laws lies with Congress. Since the start of the current session, supporters and opponents of the current H-1B system have introduced bills that would expand or curtail it respectively. A bill re-introduced by Rep. Darrell Issa, R-California, in January would raise minimum salaries for H-1B visa worker to $100,000. A competing bill sponsored by Sens. Chuck Grassley, R-Iowa, and Dick Durbin, D-Illinois, would kill the H-1B lottery and award the visas first to holders of advanced degrees from U.S. universities, then to high-salary workers, then to people with valuable skills. The H-1B and L-1 Visa Reform Act, also introduced in January, would bar companies from having more than half their employees on H-1B or L-1 visas, and prohibit companies from replacing U.S. workers with visa holders, among other things. Both bills have been referred to committee but no other action has been taken.
Other recent attempts to pass H-1B reform laws have gone nowhere, and it’s a toss-up whether a Congress that’s been preoccupied with repealing and replacing the Affordable Care Act and other issues will get to it this term, said Leon Rodriguez, who ran the USCIS under the Obama administration from 2014 until Trump took office.
“There are those who think the number should stay where it is or go backward, along with tighter restrictions,” said Rodriguez, who now practices immigration and health care law at Seyfarth Shaw LLP, in Washington, D.C. “Then there’s the school of thought that says let’s expand the numbers but also put in more safeguards protecting U.S. workers and design the system in a way that favors getting the highest levels of talent we can.”
In a June appearance before a congressional committee, Labor Secretary Alexander Acosta said the administration supports increasing the current $60,000 minimum salary for H-1B workers — which hasn’t changed since 1998 — to at least $80,000 as a way to stop the flow of cheap labor into the country.
Opponents to the administration’s H-1B clampdown say the policy shift is ill-conceived and ultimately could do the country more harm than good, particularly for a U.S. tech sector that’s seriously understaffed. In an address earlier this year, Eric Schmidt, executive chairman at Google parent company Alphabet called it “the stupidest policy in the entire American political system,” according to Fortune.com.
But Trump fans and critics of the program in its current form laud the president’s moves to protect U.S. jobs for U.S. workers. The present H-1B program undercuts American jobs by allowing companies to shift positions to outsourcers who pay substantially less or send the work overseas, argues Sara Blackwell, a Sarasota, Florida, lawyer who’s represented laid-off workers in H-1B lawsuits.
“We have executives who are outsourcing for cheap foreign labor,” Blackwell said.
Michelle V. Rafter is a contributing editor in Portland, Oregon. Comment below or email editors@workforce.com.
Just when I think I’ve hit rock bottom with my survey of the year’s worst employers …
The EEOC reports that it has sued a downstate Illinois IHOP franchisee for sexual harassment. While the allegations are bad, what makes this case worse is the allegation that the store owner ignored his employees’ complaints because the accused harasser was a close relative.
According to the EEOC’s suit, … more than 11 female employees at the Glen Carbon (Illinois) IHOP were subjected to unlawful sexual harassment including regular and repeated sexual touching and grabbing, lewd sexual comments and requests for sex, and offensive and threatening gestures. The general manager at the Alton (Illinois) restaurant made lewd and offensive comments to a male cook about his genitals and propositioned him for sex. Although the owner and managers were aware of the pervasive and egregious sexual harassment at both restaurants, they failed to investigate or take any action to prevent or stop the unlawful harassment, according to the suit.
A lawsuit is merely a collection of unproven allegations, and the EEOC could be pursuing false leads, but these allegations are horrific.
Indeed, as stated by James R. Neely, Jr., the district director of the EEOC’s St. Louis District, “The sexual harassment in this case is particularly disturbing because it involved the general managers of both restaurants, both of whom were close relatives of the owner, and the owner declined to take any action.”
If you ignore pervasive and egregious harassment complaints because the accused happens to be your close relative, you might be the worst employer of 2017.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
This is an odd statement for a litigator to make. But it’s true.
When you litigate, the only people that “win” are the lawyers. It’s for this reason that I believe that every claim or potential claim should settle. The two key considerations are when and for how much.
Understanding this fundamental truth, the only way to survive as an employer is to draw a reasonable line in the settlement sand and stick to it. If you are dead in the water, then you are better off settling early and not spending hundreds of thousands of dollars paying your lawyers to fight a lost cause. At the other extreme, though, if the employee’s case is meritless (or frivolous, depending on your viewpoint), then why do want to spend a dime towards settlement? Settling those cases will only paint your business as an easy mark, spurring copycat claims by other employees. For this latter category of claims, this only settlement is a voluntary dismissal, or, at most, a nuisance value.
Yet, it many cases, one party, or the other, or both, are not reasonable, or not willing to meet the other’s demand or somewhere in the middle and resolve a claim pre-suit. At that point, you are in the litigation game.
If you’ve never been sued as an employer, congratulations. You are likely just lucky, and not just good at employer-ing. You will be sued, eventually, and when you are, there are certain things you should expect.
1. It will cost, a lot. An employer should expect to spend between $50,000 and $250,000 dollars defending a lawsuit brought by an ex-employee.
2. It will be time consuming. Lawsuits eat a lot of time. You will spend time gathering documents, meeting with your attorney to provide facts and background information, answering discovery requests, attending pretrials and settlement conferences, and making employees available for depositions (including the extensive pre-deposition preparation). In addition to the fees you pay your attorney, there is significant additional cost in the lost productivity hours that goes into litigation.
3. It will last longer than you think it should. Litigation is a marathon, not a sprint, and the finish line is often a moving target. Deadlines are usually far in the future, and often extended through no fault of your own. And, the longer it takes, the more expensive it usually is.
4. Your employees will not be perfect witnesses. No witness is perfect. In fact, most are far from it. All will make mistakes. Some will be small and insignificant (a date here or there), some larger (a key fact forgotten under the scrutiny of a deposition), and some will be devastating (In an age case I once had a CEO admit age discrimination on the witness stand; case closed). You can prepare and over-prepare your witnesses (see numbers 1 and 2 above), but you cannot prepare for how someone will hold up under the pressure of a deposition or trial, and the pressure filled scrutiny and cross examination that come with them.
5. You are not as good of record keeper as you think you are. “I know I took notes during that meeting.” “Where did that email go?” “That document must have been mis-filed; I know it’s here somewhere.” You didn’t. You probably deleted it. If it’s lost or mis-filed, good luck finding it.
6. You may fight more than one battle. Does your business have Employment Practice Liability Insurance? Great, the lawsuit just filed against you may be covered. “May?! What the hell am I paying for?!” Did you put the insurance company on notice as soon as you learned of the claim or potential claim? No? Then it might not be covered. It’s a wage-and-hour or labor claim? Read your policy exclusions, because it might not be covered. You have a high deductible? You might have coverage, but you’ll pay a significant amount out-of-pocket until you meet said deductible. You want to choose your own attorney? Read your policy, because you might be limited in selecting from a panel of pre-selected lawyers you’ve never heard of or met. As a result, you may end up fighting two fights, one against the plaintiff and one against your insurance carrier.
7. Decisions will not all go your way. You will win some motions, and you will lose some motions. Some will matter more than others. You need to understand that if your side was always right, there’d be nothing to litigate. Don’t get mad at me. Don’t get mad at the judge. Litigation is a process, and losing some issues is part of that process.
8. Every case has risk. Every client always asks, “How strong is our case? What are our odds?” Look, I’m not a bookie, I’m an attorney. On your best day, with your strongest case, I only give you a 2 out of three chance of winning. We cannot control the judge or the jury, and they ultimately decide that case, sometimes on issues that have nothing to do with the facts or the law. If you can’t stomach risk, settle.
What pain points did I miss? Let me know in the comments below.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
