6 tips to avoid an employment lawsuit

For the past two days, BLR’s HR Daily Advisor has been looking behind enemy lines and providing tips from a plaintiffs lawyer on mistakes employers make that generate litigation (A Peek into Enemy Camp – Plaintiff’s Lawyer Spills Secrets and How to Grease the Skids for Your Employee's Attorney). I culled the following six from those articles, and are designed to point your business in the right direction with some proactive steps you can take to handle employees and policies and help avoid future employment claims.

1. Discounting damages and potential liability. Managers and supervisors often underestimate their own liability. People with decision-making authority need to keep in mind that in Ohio they can be held personally liable for their own discriminatory actions. It’s not just the company that can be held liable. If people stopped and considered that they could be equally liable for back wages, compensatory, and even punitive damages, they might tread more cautiously when dealing with protected employees.

2. Omitting a Reason for Termination. Companies often believe that it is better not to provide a reason for a termination than to give a reason that can be used as potential ammunition against the company. The converse is usually true. The lack of a reason is often the spark that fires the weapon. If an employee is not given a reason, he or she will assume that there is no good reason, and seek help from an attorney. However, if the employee is given a reason that is backed up by prior discipline, reviews, and other communications, the employee is much more likely to understand and move on. The keys are proper prior communication and accuracy.

3. Ignoring the EEOC Response. By ignoring, I don’t mean failing to respond at all (which is also a big mistake). Instead, I mean not taking the time to draft a thorough, proper, and accurate response that gives the EEOC or OCRC sufficient detail to issue a “no probable cause” finding. Be mindful of accuracy, however, as inconsistencies will likely come back to bite you in subsequent litigation.

4.Terminating Employees with Good Evaluations or Scant Documentation. It’s very difficult to justify the termination of an employee for performance problems if the employee has glowing performance reviews and no history of written documentation outlining the problems. The less paper that exists, the more a termination looks like pretext.

5. Ignoring Your Own Policies. Managers and supervisors should be trained in what your policies are and how they should be applied. While policies should state that they are not contracts, they do set standards of conduct that should be met in most cases. Consistency avoids the appearance of pretext, which in turn avoids summary judgment denials and jury trials.

6. Delaying Policy Changes. Laws change frequently. New laws are passed (the FMLA’s military leave amendments, the Genetic Information Nondiscrimination Act), old laws are changed (the new FMLA regulations and the recent ADA amendments), and courts write opinions that reinterpret laws (the Supreme Court’s inclusions of internal investigations in retaliation liability). Companies that are slow to react to incorporating these changes into their policies risk liability. Policies must be well drafted, reviewed by lawyers, and updated frequently.

There is no sure-fire method to prevent a lawsuit from being filed. No company is bulletproof, and there is no guarantee against a terminated employee filing a lawsuit. This list, however, is a good first step to helping put your organization in the best position to dissuade lawsuits from being filed and successfully defending against them when they are.

Five “must haves” for your employee handbook

I’m in the process of drafting an employee handbook, which got me thinking – what are the policies that every handbook absolutely must contain? I came up with a list of the top five “must have” policies.

1. At-will employment disclaimer. I can’t imagine anything worse than an employee being able to successfully claim that an employee handbook creates a contract with the employer, or provides something on which the employee can reasonably and justifiably rely. This disclaimer should be in writing, both in the handbook and on a receipt that employees sign and is placed in their personnel files.

2. Anti-harassment. It’s impossible to take advantage of the Faragher-Ellerth affirmative defense for harassment liability without a policy of which employees can avail themselves.

3. No-solicitation. In light of the implications of the Employee Free Choice Act, it is vitally important to safeguard against non-business uses of company property. Any non-solicitation policy should cover written and oral solicitations, in addition to e-mail and computer systems.

4. Technology. A comprehensive technology policy guards against improper uses of e-mail and computer systems, limits personal uses of company property, tempers employees’ privacy expectations, and protects against potential harassment liability. A very versatile policy that no business should be without.

5. FMLA. If your company is covered by the FMLA, it is required to have an FMLA policy. The new regulations clarify this obligation.

A rant about forms

Employment forms are not difficult to find. They are all over the internet. There are form handbooks, form employment applications, form harassment policies, form severance agreements, and myriad other employment and personnel related documents. Many companies even have old forms that an attorney prepared years ago, and dust them off when a situation warrants. Companies rely on these forms to save a few dollars in legal costs. After all, why pay a lawyer several hundred dollars to draft a form for a business when they are available for free? A lawyer must have reviewed it at some point, right? Not necessarily.

Even if a lawyer did review a form at some point, it may not be up to date, it may not have been reviewed for a specific state's particular employment laws, and it certainly was not reviewed for a specific legal situation. Forms are just that, a clean slate that can be adapted to a situation, but not perfect for any or every situation. Each state has specific laws that impact a form's language. Moreover, the law itself is always in flux. New cases come out that give new spins to old laws. New laws are passed that create new legal obligations. How many "form" EEO policies on the internet do you think take into account the Genetic Information Non-Discrimination Act that was passed in May, or account for Ohio's recent ban on military status discrimination? Do you think a generic employee handbook will take Ohio's smoking ban into consideration?

The point is, it may save a few dollars to use a form without consulting an attorney, but it will cost many dollars more to hire a lawyer to fix a mistake after the fact, especially if the mistake does not come up until a disgruntled employee files a lawsuit.

Be careful what you ask for

Non-competes are a curious breed. They are often used, but difficult to enforce. What's the harm in trying, you might ask? If an employee signs a non-competition agreement and goes to work for a competitor, why not roll the dice and see if you can extract your pound of flesh from the former employee and your rival?

U.S. Foodservice v Marzich (N.D. Ohio 9/2/08)* illustrates the dangers. As a result of U.S. Foodservices's attempt to enforce a non-compete agreement against former executives, it is now faced with an Opinion and Order from a federal court that its agreement is invalid as a matter of law:

The breadth of solicitation and confidentiality covenants certainly extend beyond the reach necessary for the protection of Foodservice's business interests and presents an undue hardship on the Former Employees in violation of Maryland's law on restrictive covenants.... The Agreement lacks the narrow tailoring necessary to merely prevent the Former Employees from trading on the goodwill they created while serving Foodservice customers. Rather, the restrictive covenants appear designed to prevent any kind of competition by the Former Employees, which is not a legally protected interest under Maryland law.... While Foodservice has a legitimate interest in protecting its customer relationships, it does not have a legitimate interest in limiting ordinary competition. By prohibiting the Former Employees from soliciting business, "directly or indirectly" from any "Persons" in the universe of "Customers" who have ever made "contact" with Foodservice, "whether or not these [contacts] resulted in sales," the Agreement prohibits the Former Employees from engaging in conduct that could only reasonably be construed as ordinary competition.

If the company cannot enforce a non-compete against former executives, who can it enforce it against? A national company with more than 27,000 employees is now faced with the prospect of having an agreement that it can never enforce against anyone. For current employees, it will have to go back to the drawing board. For former employees, in the words of one of my former law professors, it's too bad, so sad, hard cheese.

This case certainly gives companies something to consider the next time an employee goes to work for a competitor.

*Full disclosure: KJK represents the defendants.

Is the FLSA anachronistic?

Earlier this week I wrote about whether employees are entitled to overtime pay for reading emails. Michael Moore (the author of the Pennsylvania Labor & Employment Blog, not the director of Roger & Me) posted a comment to my post that is so wonderful that I'm reprinting it to make sure that all of my readers see it:

The only area immune from technology is the FLSA which is stuck in the year 1938, when it was enacted. Incidentally, this is the same year that the ball point pen was invented by the Argentine-Hungarian journalist László Bíró. I wonder if the DOL sat around in 1938 wondering if employees who wrote themselves work-related “To Do” list at home might actually be engaged in compensable work time activities entitling them to overtime?... or if the invention of the ball point pen (as opposed to the clunky fountain pen) would have so dramatically reduced these efforts that it would make the time de minimis?

Michael is dead on. As our employment laws move forward, the FLSA remains stuck in the past. The FLSA was enacted in 1938 to the curb worker exploitation, boost job creation, and bring the country out of the Great Depression. Last year, I asked if the 40-hour work week is still relevant in the modern world.  Michael's comment really drives home the point that a law enacted to address workplace conditions that existed during the Depression may need to be seriously reworked to address the realities of the modern workplace.

Why I'm a management-side lawyer

In responding to my piece from yesterday on Colorado's just cause initiative, Professor Paul Secunda at the Workplace Prof Blog had this to say:

I don't believe that employers only fire employees usually for good reasons. I guess that is why Jon is still a management attorney and I no longer am.

Paul's comment got me thinking -- why am I a management attorney? Let me try to answer it this way.

I'm not so naive to think that businesses only fire people for good reasons. Companies fire people for lots of reasons -- good, indifferent, and unlawful. In a perfect world, discrimination, retaliation, and harassment wouldn't exist. But they do, and companies, even those with the best of intentions, run afoul of the complexities of our myriad employment laws. Every lawsuit, administrative charge, and internal complaint is an opportunity for a company to learn from a mistake, whether legal or inter-personal. It's an opportunity to train employers how to handle an employee relations problem better the next time.

I say that mistakes can be legal or interpersonal because lawsuits don't necessarily happen because an employee was discriminated against. Lawsuits happen because people feel disrespected, unappreciated, or that they were just plain treated unfairly. It's my job to make sure that employers understand this dynamic. When that dynamic fails, it's my job to help employers get it right the next time.

In a perfect world, I'd never get a call that a client has been sued. In a perfect world, companies would call me once a year to give their HR practices a full review for compliance with the latest and greatest laws and court decisions. In a perfect world, companies would budget for proactive help, and understand that a small amount of legal fees spent upfront would save a mess of headaches and a huge legal bill later. Life, however, is far from perfect, and often I am only called when the summons arrives. While I love the thrill of the battle that litigation presents, it's the satisfaction I get from helping clients fix their problems so that they get it right the next time that motivates me to do my job everyday.

An expectational argument for overtime pay

Another day, another wage and hour issue.

In 2006, IBM settled a wage and hour class action lawsuit for $65 million. In the lawsuit, it was alleged that IBM had misclassified 7,600 technical workers as exempt and therefore withheld overtime from them. As a result of the settlement, IBM has reclassified those employees as non-exempt, and has begun to pay them overtime. However, to ensure that the employees not be paid a higher overall salary, IBM has cut their salaries by 15% to compensate for overtime payments. The goal is not to punish the employees, but to keep their total compensation roughly the same as before the reclassification. [See IBM Cuts Base Salaries by Switching 7,600 Workers to Nonexempt Status.]

The blogosphere is starting to light up with criticism of IBM. From HR World: "Newsflash, people aren’t stupid: salary is guaranteed income and overtime is not. Can you say disgruntled employees?"

Let me offer a different perspective, based on expectations. Let's say someone is hired and told, "We are going to pay you $60,000 a year." So, twice a month, the employer expects to cut a check for $2,500 and the employee expects to receive a check for that amount. Now, let's say the Department of Labor comes in and says, "No, no, that is a non-exempt position. You have to pay that employee overtime." Why should that change the fact that the employee still expects to earn $60,000 per year? The employee is doing the same exact work, and should expect the same pay. The only thing that has changed is the Department of Labor's opinion on an exemption. But that determination should have no effect on the employee's salary expectation. So, if an employer wants to figure out what hourly rate, coupled with an average amount of overtime, will get an employee to the expected $60,000 per year, where's the harm? I need someone to explain to me how the employee has been hurt.

The Golden Rule of employment relations

John Phillips at The Word on Employment Law has a great post up this morning on the crucial role fairness plays in employment relations. John opines (and I wholeheartedly agree) that juries in employment lawsuits often discuss "fairness." In other words, all law aside, did the employer treat the employee fairly? John focuses on 5 key areas of fairness that employers must pass for any employment decision to survive scrutiny:

• Appearance: does an employment action appear fair to an outside observer?
• Counseling: except in the most egregious of cases, was the employee told of a deficiency and given a chance to correct it?
• Consistency: are similar disciplinary problems handled similarly and to the same degree?
• Documentation: can you point to a performance review, written warning, a note in a personnel file, or some other contemporaneous piece of paper that supports the personnel decision?
• Rationale: was the employee given a reason for the decision, and was it the real reason?

These 5 areas of fairness can be succinctly summed up in what I call The Golden Rule of Employment Law. If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer's favor. I've said this before, but it bears repeating. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to find in the employee's favor.

Remedial action must be meaningful to save employer from harassment liability

Yesterday I wrote about how to implement an effective complaint procedure to help ward off harassment claims (A Whopper of a Sex Harassment Claim). Today, Engel v. Rapid City School District will illustrate the dos and don'ts of responding to a harassment complaint after it is received.

The facts of Engel v. Rapid City School District are fairly simple. In March 2003, a school district employee complained that David Herrera, a non-supervisory co-worker, had been sexually harassing her. In response, the school district immediately suspended Herrera without pay and launched an investigation led by the school superintendent. As part of the investigation, Engel was asked if she had been harassed by Herrera, to which she answered affirmatively and provided a written complaint describing the harassment.

Upon completion of the investigation, the school district concluded that Herrera had engaged in the following harassing conduct: (1) twice requesting that a female employee look at pornographic images of male and female sex on his computer; (2) rubbing or massaging the neck of female co-workers without their prior permission; (3) stroking the hair of co-workers without their permission; (4) remarking about the physical anatomy of female co-workers and asking to feel a co-worker's butt; (5) attempting to look down the shirts of female co-workers; (6) persistently inquiring about whether or not a female co-worker was wearing thong underwear, and if so what color and did it match her bra; (7) leering at females co-workers; (8) remarking to a female co-worker that she smelled good and that he needed to find some lotion and go into the bathroom; (9) commenting about oral sex and sexual positions which could be used between a female co-worker and her husband; and (10) attempting to reach in a woman's shirt to grab her identification badge.

Given the egregiousness of Herrera's misconduct, the school district would have been justified in terminating him at that time. Instead, it opted for a less severe penalty, a written final warning, which provided: "Any future complaints of harassment by you will result in your immediate termination of employment.... If there are any additional instances of inappropriate conduct, whether it be touching, verbal or otherwise, your employment will be terminated.... Continued conduct of the type mentioned above will not be tolerated any further. As stated above, if there is an additional complaint, your employment with the District will be terminated."

Herrera, however, was undeterred. After returning to work he tried to talk to Engel in the hallway, used the school intercom to speak to her, and, according to Engel, undressed her with his eyes. She again complained, but instead of terminating Herrera, the school district merely re-suspended him. At the same time, it also softened its stance on the consequences of any future acts of harassment: "Any future complaints of conduct of harassment or violation of the aforementioned terms and conditions will result in additional administrative action, up to and including the termination of your employment." When Herrera continued to leer at Engel following his return from the second suspension, she resigned and sued the school district for sexual harassment.

Because Herrera was merely a co-worker and not a supervisor, the school district can only be liable for the harassment if it knew or should have known of the harassment and failed to take immediate and proper corrective action. The remedial action must be reasonably calculated to stop the harassment.

The appellate court found that the school district could not be liable for any of Herrera's actions that occurred before it received the initial March 2003 complaint. It had a written anti-harassment policy and formal complaint procedure, and received no complaints about Herrera before March 2003. Moreover, the court found that the school district's response following its receipt of the first complaint was prompt, comprehensive in its scope, and stern in its warnings. In the court's words: "[T]he law does not require an employer to fire a sexual harasser in the first instance to demonstrate an adequate remedial response." Had it chosen to do so, however, I highly doubt that Herrera would have had any claim, and the school district would have been insulated from claims by other employees.

The Court was less complementary of the school district's handling of the continuing complaints after Herrera returned from suspension: "That an employer responds adequately to an initial report of sexual harassment ... does not discharge the employer's responsibility to respond properly to subsequent reports of offending conduct by the harasser." In the Court's view, it was not only significant that Herrera continued to harass Engel, but that the school district's response to the subsequent harassment lessened in severity:

Significantly in our view, RCSD's decision to respond to Herrera's continued harassment by decreasing, rather than increasing, its threatened sanctions may reasonably be viewed as contributing to a negligent response. The reasonableness of an employer's response to repeated sexual harassment may well depend upon whether the employer progressively stiffens its discipline, or vainly hopes that no response, or the same response as before will be effective.... Here, RCSD had threatened to terminate Herrera if any additional substantiated complaints of harassment were made against him, but ... RCSD did not follow through on this promise. Instead, RCSD responded to Engel's additional complaints by suspending him and then advising that further inappropriate conduct could lead to administrative action, "up to and including the termination of [his] employment" – thus opening the possibility that even a third round of harassment would not cost Herrera his job. Engel reasonably contends that this backtracking may have emboldened Herrera, and thereby contributed to his continued harassment of her.... In sum, Engel has presented evidence that could support a reasonable finding that some elements of RCSD's second remedial action were insufficient to address Herrera's ongoing harassment, that the remedial action did not stop the harassment, and that the second remedial action may actually have encouraged Herrera to feel that he could safely continue certain activities.

An employer does not discharge its duty to remedy harassment merely by taking some corrective measures. Instead, the corrective measures must be reasonably designed to prevent future harassment. To attempt to minimize liability for co-worker sexual harassment, businesses should be aware of the following factors upon receipt of a harassment complaint:

1. Promptness. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct.
2. Thoroughness. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. Egregious allegations such as those in the Engel case, however, usually require a more comprehensive investigation.
3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
4. Communication. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
5. Follow-through is crucial. Rapid City School District's fatal flaw was that it did not carry out its threat to terminate Herrera's employment if the harassment did not stop. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through on that threat, or face the risk of being second guessed like the employer in Engel.

Hindsight is 20/20 and investigations are always subject to being second guessed. Promptness, consistency, thoroughness, and follow-through are a business's best friend in responding to harassment complaints. A failure of any one could expose a company to liability for failing to take appropriate remedial action. Complacency is also dangerous. As the Engel case illustrates, one cannot assume that remedial measures are working, and if there is reason to believe they are not (such as a second complaint), more severe measures must be taken.

Document, document, document!

As the record reflects, there was a myriad of problems with Plaintiff's job performance and treatment of his subordinates that justified Defendants' decision to fire Plaintiff. This, however, is not what Defendants told Plaintiff during their final meeting. Defendants did not tell Plaintiff he was being fired for poor performance, but rather because of an unspecified "personality conflict." While the law does not specifically require an employer to list every reason or incident that motivates its decision to terminate an employee, we are skeptical of undocumented accounts of employee conduct that may have been created post-termination. Under the facts of this case, however, ample evidence exists that indicates that Plaintiff's performance was inadequate to meet his job requirements. In sum, Plaintiff has not put forth sufficient evidence for a jury reasonably to conclude that Defendants did not have an honest belief that Plaintiff performed his job duties poorly.

So said the Sixth Circuit last week in Abdulnour v. Campbell Soup Supply Company, a national origin discrimination case brought by an Iraqi national fired by Campbell Soup for job performance that was less than "M'm M'm Good". The Sixth Circuit upheld the trial court's dismissal of the lawsuit on summary judgment because Abdulnour could not come forward with any evidence, other than his own subjective disagreement, that Campbell Soup did not honestly believe in the reasons proffered for his termination. Clearly, however, as the quote above demonstrates, the appellate court was troubled by the lack of documentation in Abdulnour's personnel file for the alleged performance deficiencies. It is safe to assume that if Abdulnour could have come forward with any evidence at all to support his allegation of pretext, the court would not have hesitated to ding the company for its poor documentation.

The lesson to be learned is basic, but one that cannot be repeated enough. Any employer's greatest defense against a claim of discrimination is a well-documented history of performance problems to support the termination, coupled with comparable treatment of similarly situated employees. When in doubt, document all performance problems with all employees. If the discipline or counseling is oral only, document that fact also. Have all employees sign off on all such records, and if the employee refuses to signify the receipt of the discipline, document that failure as well. The Sixth Circuit in the Abdulnour case cannot be any clearer that when an employer relies on undocumented accounts of misconduct to support a termination, it is fair for the court and a jury to draw the inference that those accounts were created post-termination. The Abdulnour decision is the anomaly, and almost universally cases with poorly documented personnel files will not end well for the employer. Campbell Soup dodged a bullet; do not put your company in similar risk.

Use a wage and hour audit to proactively head off claims

"Wage Wars: Workers are Winning Huge Overtime Lawsuits," graces the cover of this week's BusinessWeek magazine. It should serve as a harsh wake up call for all companies. The article cites recent huge wage and hour settlements and verdicts, including an $18 million settlement paid by Starbuck's and eight and nine figure jury verdicts against Wal-Mart. In fact, the article estimates that American companies have collectively paid over $1 billion to settle these types of claims over the past few years.

The sweatshops of the 1920s and 1930s that led to the passage of the Fair Labor Standards Act and its 40-hour workweek are virtually non-existent. Nonetheless, claims for unpaid overtime continue to rise, more than doubling in the federal courts from 2001 to 2006. Almost always, these cases are not the result of the intentional withholding of overtime premiums. Instead, they fall into two classes: off-the-clock pay claims and the misclassification of employees. The former concerns pay for working through lunch breaks, donning and doffing gear, and required travel time. Regarding the latter, employees fall into two basic classes for coverage by the FLSA, exempt and non-exempt. Companies and the employees themselves often mistakenly assume that white collar employees are exempt, and blue collar employees are not. Paying an employee a salary (as opposed to an hourly wage), however, is not enough to qualify an employee as exempt. The FLSA only provides an exemption if an employee meets the specific qualifications for the executive, administrative, professional, outside sales, or computer employee exemptions. These exemptions are highly fact specific, and wholly depend of the nature of the actual work performed, and not a job title. For example, merely labeling an employee as a manager or supervisor is not enough to qualify an employee for the executive exemption, unless that salaried employee customarily and regularly directs the work of two or more other employees, and has the authority to hire or fire. The other exemptions have similarly stringent requirements (click here for a copy of the federal regulations on these exemptions).

The question is not whether companies need to audit their workforces for wage and hour compliance, but whether they properly prioritize doing so before someone calls them on it. According to the BusinessWeek article: "While violations appear widespread, employees themselves rarely think to make wage and hour claims. Instead, they usually have it suggested to them by lawyers." It is immeasurably less expensive to get out in front of a potential problem and audit on the front-end instead of settling a claim on the back-end. The time for companies to get their hands around these confusing issues is now, and not when employees or their representatives start asking the difficult questions about how employees are classified and who is paid what.

Sixth Circuit confirms that it will not second-guess an employer's honest belief

The Sixth Circuit this week handed down two decisions that make it clear that pretext for discrimination or retaliation does not exist if the employer engages in a reasonable investigation and has an honest and good faith belief in the rationale for its employment decision. These cases are a good reminder that one of the best defenses to any discrimination, retaliation, or harassment claim is a thorough, well-documented investigation.

Michael v. Caterpillar Fin. Servs. Corp. concerned a six-year African-American employee who had a good employment record until her manager was replaced. Shonta Michael claimed that the discipline, including a very confrontational meeting in which the new manager aggressively yelled at her, was racially discriminatory and that she was retaliated against after she complained over the manager's treatment of her. Caterpillar, on the other hand, claimed that any conflict and discipline was solely because of legitimate performance issues. The Court skirted the issue of whether the disciplinary action (a performance plan) constituted an "adverse employment action," finding that regardless Michael could not prove that the employer's actions were pretext for discrimination or retaliation. Caterpillar's investigation included interviews of all of Michael's co-workers, many of whom found her difficult to work with. Michael claimed that her disagreement those facts established pretext. The Court disagreed:

Michael’s disagreement with the facts uncovered in Caterpillar’s investigation does not create a genuine issue of material fact that would defeat summary judgment “as long as an employer has an honest belief in its proffered nondiscriminatory reason.” The key inquiry in assessing whether an employer holds such an honest belief is “whether the employer made a reasonably informed and considered decision before taking” the complained-of action. An employer has an honest belief in its rationale when it “reasonably relied on the particularized facts that were before it at the time the decision was made.” “[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” ... Caterpillar presented sound, nondiscriminatory reasons for the action that it took based on a reasonable investigation of events that occurred after Michael’s favorable performance review.

Because Caterpillar had extensive documentation of its investigation, it could reasonably rely on its conclusions with no finding of pretext or retaliatory animus.

By comparison, in Denhof v. City of Grand Rapids, the issue was whether the Grand Rapids Chief of Police reasonably relied upon a psychological fitness for duty exam in refusing to permit the plaintiff to return to work. The Court found that the Chief's reliance on the medical opinion was unreasonable because the doctor's written opinion showed that he had a preordained opinion on Denhof's unfitness for duty:

In his January 11, 2002, letter recommending a fitness for duty examination for Patricia Denhof, Dr. Peterson employed language that, at a minimum, suggested his opinion had already been formed. For instance, he noted that in view of the tension between Denhof and the department, “it is difficult to imagine how she could continue to work in this environment.” ... This language should have signaled to Chief Dolan, and indeed any reasonable recipient, that Dr. Peterson was predisposed to finding Denhof unfit for duty. Indeed, after comments like this, it is hard to see any possibility that Dr. Peterson’s examination would yield a result other than finding that Denhof should be separated from the police force. Instead, when Dolan was confronted with a psychologist who had already formed his opinion before examining the patient, he asked that doctor to proceed with the examination. In doing so, he forfeited the protection of the honest belief rule, because the jury could have easily concluded that his reliance on a doctor who had already made up his mind did not qualify as reasonable reliance.

According to the Court, the employer could not have an honest belief about Denhof's lack of fitness to return to work because, according to the opinion the doctor upon whom it was relying was predisposed. Thus, the decision could not have been bona fide.

I'm troubled by the ease with which the Denhof panel writes off the employer's reliance on a medical opinion and delves into the motivations of the psychologist. The doctor's language does not seem nearly as clear to the me as it did to the Sixth Circuit. Moreover, if an employer cannot have an honest belief about a medical opinion what can it hold an honest belief about? Nevertheless, these two cases reaffirm the honest belief rule, and demonstrate that courts will not second-guess a personnel decision if it is based on a rational, reasoned, honest belief.

Lessons from Childrens' Lit

“Farmer Brown has a problem. His cows like to type. “

So starts Click Clack Moo, Cows That Type, my soon to be one year old daughter’s favorite book. In Click Clack Moo, Farmer Brown’s cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows’ typewriter in exchange for electric blankets. The labor dispute ended, and the cows and hens went back to producing milk and eggs. The deal backfired on Farmer Brown, though, as Duck absconds with the typewriter and leverages it into a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize, and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don’t discriminate. There is no guarantee that you’ll stay out of court, but if you end up there, you’ll have a much easier time convincing a judge and a jury of the rightness of your decision if you are perceived as being fair, reasonable, and even-handed. 


2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an outcome. But, you should always keep an open mind towards a resolution. 


3. Don’t Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).