The best way to settle an employment case

Yesterday at Jottings By An Employer’s Lawyer, Michael Fox praised the Employment Law Group for announcing a jury trial loss in a blog post. You may be asking yourself why would a defense lawyer announce a loss. It’s what I call smart marketing. There are two things employment plaintiff’s count on to extort a high settlement: 1) a denied summary judgment motion with a firm trial date, and 2) cold feet by a business or its lawyer to take the case to a jury. If you want to obtain a fair settlement in your next employment case, hire an attorney with a proven track record of trying cases. Before you hire the lawyer to defend your next claim, ask him or her how many cases he or she has tried to a jury, and how long ago the last jury trial was.

There are very few things in the law that take more guts than taking an employment case to trial as an employer. No one wants a jury to resolve a dispute. Knowing that your lawyer has the confidence to try your case will give you the confidence to draw a reasonable settlement line in the sand. That line might be at or near zero. You should never pay more than you think a case is worth merely to avoid a trial. Knowing your lawyer can and will try your case for you will enable you to hold that line.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Celebrating the ADA, but bemoaning its breadth

As I noted last Friday, the ADA recently enjoyed its 20th anniversary. Last Monday, in The New Republic, Jonathan Cohn celebrated the ADA and its accomplishments for disabled Americans. And, I agree with him—in part. It’s hard to disagree with a law that has opened access to businesses and employers to those with legitimate disabilities. But (and it’s a big but), the ADA has also opened employers to abuses by many who have marginal medical issues, or medical issues that do not impact their day-to-day ability to perform their jobs. Under the current iteration of the ADA and its broad definition of disability, nearly everyone with a medical condition will be considered “disabled,” triggering an employer’s reasonable accommodation obligation. The ADA is rife with abuse. Even more problematic for employers is that the ADA is not only a prophylactic statute, but also in most instances a proactive statute, requiring employers to expend man-hours and money attempting to bend to the needs of employees via the reasonable accommodation interactive process.

So, as the ADA enters its third decade, I applaud all it has done for the truly disabled. I also feel the pain of every employer that has been compelled to hire someone like me to defend a specious claim of someone with a marginal medical issue.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? 10 tips for preparing for your deposition

I’ve been taking and defending more depositions than usual lately, and, naturally, I’ve been thinking a lot about the art of the deposition. Because very few cases get to trial, the deposition is the event during which the key players have their opportunity to tell their stories. It is also often the key event in employment cases that decides whether a summary judgment motion is granted or whether a case results in a fair settlement.

A deposition may feel like a conversation, but it isn’t. It is a tool used by a highly skilled practitioner to lock-in your side of the story, build his or her case through your admissions, and evaluate you a trial witness. As there is a skill in taking a deposition, there is also a skill in testifying at a deposition. The following are my top 10 things to think about as you prepare to give testimony in a deposition.

1. Tell the truth. Enough said.
   
2. Answer the specific question asked. Do not volunteer other information. Do not explain your thought process. You are only required to answer the question that is asked. The lawyer on the other side is being paid to ask specific questions to elicit the specific information being sought. Do not do his job for him by unnecessarily offering other information.
   
3. If you do not understand a question, do not answer. Simply say that you do not understand. It is the lawyer’s job to formulate understandable questions, and not your job to guess at what is trying to be asked of you.
   
4. Do not guess. If you cannot remember something, your answer should simply be: “I do not remember.” If you have a vague memory, give that vague memory with a qualification.
   
5. A deposition isn’t a memory test. If you are asked for a time or date, and you cannot recall specifics, it is okay to give an approximation. Just qualify the answer by saying that it is an approximation or an estimate.
   
6. Beware leading questions. An examiner is usually allowed to try to put words in your mouth with leading questions. Do not agree to inaccurate statements contained within the question. To same end, do not automatically accept the questioner’s summary of your prior testimony, unless it is 100% accurate.
   
7. Give complete answers, and then stop. Always finish your answer. If you are interrupted, let the lawyer finish the next question, and then go back and finish your prior answer. If you are finished with an answer and it is complete, accurate, and truthful, stop talking and stay silent. Do not add to your answer because you feel a need to fill the silence.
   
8. Documents. If you think you need a document to help you truthfully and accurately answer a question, ask for it. But, do not agree to supply any documents requested by the questioner. All such requests should go through your lawyer.
   
9. Objections. Even if your lawyer objects, you usually still have to answer the question. You will only not answer if your lawyer expressly instruct you accordingly (usually because the other lawyer is asking about attorney-client communications).
   
10. Humor doesn’t work. Sarcasm and humor do not translate well on the written page. Also, never express anger or argue with the questioner, or use even the mildest of off-color language. A deposition is a professional event, and you should act professionally.
    

I’ve never seen a perfect witness. A good witness will get more than half of these right in answering more than half of the questions asked. See if you can beat that batting average at your next deposition.

I don't like Mondays (tell me why)

There is no worse feeling than coming into your office bright and early on a Monday morning, hitting the power button on your computer, and... nothing. That's what happened to me this morning. 7 am - no computer, no help desk, and nothing I can do about it. So here I am on my smart phone with my Monday morning tip of the day. Don't be so dependent on technology. Otherwise, you'll be stuck at your desk wondering how to kill time until your 9 am deposition starts (with no access to your witness outline because it's on your computer. Technology drives nearly every aspect of our society, including our businesses and our workforces. Think about disaster planning for your business, and how your business would function if it had to do so without technology for even a day. Scary exercise, but maybe one that we should all do so we don't get caught with our servers down one day. As for me, I'm off to dig into my file cabinets and see what I can get done in the next two hours.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #137

Happy 20th Birthday to the ADA. Some notable bloggers share their thoughts on the ADA at 20.

• ADA’s 20th Anniversary – from Walter Olson

• ADA’s anniversary, cont’d – from Overlawyered

• ADA Turns 20, Still Has Growing Up To Do – from Workplace Diva

• ADA anniversary approaches – from Warren & Hays Employment Law Blog

• EEOC Celebrates 20th Anniversary of the Americans with Disabilities Act – from Wyatt Employment Law Report

Here’s the rest of what I read this week.

Discrimination

• The Basics: What It Takes To File a Employment Discrimination Lawsuit – from Dan Schwartz’s Connecticut Employment Law Blog

• Settling Gender Discrimination Class Actions (Part I) – from Workplace Fairness

• Ninth Circuit Approves of “Preemptive” Fitness for Duty Examination – from World of Work

• An “Old bully” but not the victim of age discrimination – from John Holmquist’s Michigan Employment Law Connection

• No Matter How Bad it Looks, Don't Rush to Judgment: Do an Investigation – from Debra Reilly’s Workplace Investigations Blog

• Minimizing Risk of Retaliation Claims Is As Easy As A B C – from The Proactive Employer

• Patient’s preference for white aides does not trump health care employer’s duty to its employees to abstain from race-based work assignments – from Employment Law Matters

• Shifting Reasons Still Help Show Pretext – from Tom Crane’s San Antonio Employment Law Blog

Technology

• The Right to Photograph Public Places – from Philip Miles’s Lawffice Space

• Enterprise iPads: Policies on personal iPads and remote access – from The Apple Core

• Ninth Circuit Provides Some Relief for Employers and Executives Anonymously Trashed on the Web – from Workplace Privacy Counsel

• 23 Things Not To Write In An E-mail – from NPR’s Planet Money

Wage & Hour

• Employee’s Headache No Excuse For Insubordination – from FMLA Insights

• 77 Cents and Gender Discrimination: The Wrong Conclusion – from Stephanie Thomas at Compensation Cafe

• FMLA Case Update – Lane v. Pontiac Osteopathic Hospital – from FMLA law

• Watch for more FMLA claims about caring for aging parents – from Work Matters

Background Screening

• Is Continuous Employment Screening on the Rise? – from Nick Fishman at the employeescreenIQ Blog

• The Perils of Making Hiring Decisions With Personal Info Found Online – from TLNT

• Checking Credit Reports? Check Your State Law First – from Nolo’s Employment Law Blog

Miscellaneous

• Financial Reform: What Employers Can Expect – from Hunton Employment & Labor Law Perspectives™

• Manufacturers’ Hiring Stymied? – from The Word on Employment Law with John Phillips

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

If you want something to be a trade secret, don’t publish it

While it seems like common sense, for something to be a trade secret it must actually be secret. Rogers Indus. Prods. v. HF Rubber Machinery (Ohio Ct. App. 7/21/10) [pdf] serves as a good illustration. Rogers alleged that the various defendants had used confidential information about its tire curing press to copy the unique design of its system. Rogers’s problem was that it had publicly disclosed its press design in a patent application before the alleged trade secret theft. The court concluded there is no trade secret protection for confidential information that is disclosed in a published patent application, but that a factual issue existed as to whether the patent application disclosed the specific trade secret at issue.

Aside from not publishing trade secrets in patent applications (or other public documents), what are some of the other things your company should be doing to protect its trade secrets?

• Limited access on a need-to-know basis.
• Documents kept under lock and key.
• Password-protected data files.
• Confidentiality and non-disclosure agreements for anyone with knowledge or access.
• Lawsuits to recover stolen or misused secrets.

---

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

A chocolate cupcake by any other name…

The EEOC has settled a race and sex discrimination case against a local temporary agency, Area Temps. The EEOC alleged that the agency used code words to identify the race, color, and sex of candidates it placed with employers. For example, hockey player = white male, small hands = females, basketball player = African American men, and chocolate cupcake = young African American women. The EEOC alleged that Area Temps would attach note cards containing the coded phrases to job applications submitted to employers. The settlement will pay $650,000 to a nationwide class of 11,000 people.

The easy lesson from this case is that businesses should never use code words as a proxy to identify protected characteristics such as race and sex. There is also a deeper lesson to take away from this story. Claims against two of the employers who are alleged to have used the coded phrases to make job decisions remain pending in federal court. Employers are often jointly responsible with temporary agencies for acts of discrimination. In dealing with temporary agencies, businesses should be careful not to perpetuate discrimination fostered by the agency. Also, to the extent that you are able, businesses should negotiate indemnification clauses in staffing agreements with temporary agencies, so that if your business is sued for the discriminatory act of the agency, it will defend you (pay your attorneys’ fees) and hold you harmless (pay your portion of any settlement of or judgment on the claims).