A trial lawyer’s worst nightmare: a story from the trenches

I was defending a contentious age discrimination case. At trial, the plaintiff called as her first witness the president of the small non-profit defendant. For more than three hours, he took what can only be described as a verbal beating. The cross-examination ended with this bang:

  Q: And you admit that you take age into account in every employment decision you make at the foundation?

  A: Yes.

The admission was shocking because the question had not been previously asked in any deposition. The plaintiff’s lawyer took a flyer, but must have felt he had softened the witness up enough after three-plus hours. The damning admission hung in the courtroom for a week until I had the chance to try to rehabilitate my client as part of my case. By that point, no one cared that he was trying to answer the question honestly—that this 70-year-old man equated age with experience, and usually tried to hire older. While the jury returned a big number (the worst defeat of my career), it was half of the plaintiff’s final settlement demand (which I call a win nonetheless).

I was reminded of this story earlier this week by reading a two-part series in BLR’s HR Daily Advisor, 9 Things You Don't Want to Have to Admit in Court (part 1 and part 2). No amount of preparation could have stopped my witnesses from making the admission he made. Nevertheless, the takeaway from these stories is that preparation is the key to any successful testimony.

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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? Ten tips for effective litigation holds

The purpose of a litigation hold is to stop the destruction of potentially relevant or discoverable documents and information pursuant to a retention policy or otherwise. With the advent of electronic discovery, it is incumbent upon litigants to employ litigation holds as soon as claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. In other words, failing to implement a litigation hold is a quick way focus your case away from the law and the facts and on to discovery issues.

The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:

1. Describe the pending claim.

2. Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.

3. Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient’s control. This task will be much more daunting for an IT manager than an individual employee’s work station.

4. Broadly define the scope of covered information to include all documents, records or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person’s memory: paper, magnetic tape, photographs, maps, diagrams, applications, databases, microfilm, microfiche, emails, intranet, instant messages, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company’s computers or network systems or any other devices (phones, PDAs, applications or storage devices) or systems capable of storing electronic information.

5. Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.

6. Hoarding is not a bad thing. Tell recipients to err on the side of over-saving.

7. Designate one company employee as the point person for any questions about the litigation hold and employees’ duties to preserve information and documents.

8. Alert recipients about the to the risk to the company and its employee for failing to heed the litigation hold request.

9. Ensure that the recipient signs a verification signifying the receipt the litigation hold.

10. Periodically recalculate the litigation hold to ensure continuing compliance.

A lesson from Columbus Day

When I took the dog out for her morning walk, I noticed a newspaper in my driveway. You might not think that is all that remarkable, but when you only have weekend delivery, a Monday newspaper means one of two things: either the delivery person screwed up, or today’s a holiday. That is how I remembered that today is Columbus Day. No banks, no mail, no courts, but a Plain Dealer in my driveway. (Apologies to my wife for not bringing the paper in – lost in my own thoughts walking back into the house).

Christopher Columbus set out for Asia, and ended up discovering the Americas. Here’s where I bring this around to employment law. Where you start a case may not be where you end up. You might think you have the greatest defense since the ‘85 Bears, until the decision maker royally screws up his deposition. Or, you could have a serendipitous moment when you discover during the plaintiff’s deposition that he lied on his job application and never even graduated from high school (yes, this once happened to me). Few employment cases end up where you think they will when you start. The ability to course-correct is the hallmark of a winning case.

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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.

ADA podcast is now available from The Proactive Employer

Last Friday, I had the privilege of participating in a roundtable discussion on disability discrimination, hosted by Stephanie Thomas as part of her weekly Proactive Employer podcast series. I appeared with Cari Dominguez, the Former Chair of the U.S. Equal Employment Commission, Sheridan Walker, the president of HR consulting firm HirePotential, Kevin Bradley, the Director of Diversity for McDonald’s, and James Rodriguez, the Strategic Military Talent Manager for BAE Systems, Inc. We had an engaging discussion about the recruiting, hiring, and employment of disabled workers.

Stephanie recorded the conversation as a special one-hour installment of her weekly podcast. It is now available for download from Stephanie’s website. If you have an iPod or iPhone, you also subscribe to the podcast (on which I’ve now been a guest three times) via iTunes.

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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 #147 (the SCOTUS preview edition)

This week marked the beginning of the Supreme Court’s October 2010 term, which has three important employment cases on its docket.

• Kasten v. Saint-Gobain Performance Plastics, which will decide whether an oral complaint of a violation of the Fair Labor Standards Act qualifies for protection under that law’s anti-retaliation provision.

• Staub v. Proctor Hospital, which will decide the viability of the “cat’s paw” in discrimination cases—when may an employer be held liable based on the unlawful intent of employees who caused or influenced, but did not make, the ultimate employment decision.

• Thompson v. North American Stainless, which will decide the legal viability of “associational retaliation”—retaliation against one who engaged in no protected activity but is closely related to one who did.

The hyperlinks will take you to my previous thoughts on each of these cases. I’ve had a lot to say about Thompson, since it was a 6th Circuit case. I’ll have more to say on all of these cases after they are argued later this fall, and again after they are decided next year.

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

Discrimination & Litigation

• Bad Math = Bad Policy – from Stephanie Thomas’s The Proactive Employer

• A SAD Story In So Many Very Different Ways – from Michael Fox’s Jottings By An Employer’s Lawyer

• Why Men Matter in the Work-Life Debate – from The Glass Hammer

• Complaints about management style are not protected activity, per Sixth Circuit – from Sindy Warren at the Warren & Hays Employment Law Blog

• EEOC sues on obesity-as-disability theory – from Walter Olson’s Overlawyered

• One-third of U.S. Workers Still Have A Problem With Their Gay Co-workers – from Workplace Diva

• Prompt Action by Employer Nixes Racial Harassment Claim – from The Word on Employment Law with John Phillips

• Failure-to-Promote Not Covered by Ledbetter FPA - New Third Circuit Decision – from Philip Miles’s Lawffice Space

• Employment Discrimination Potpourri: It’s Hard Out Here for New Mothers and Large Women – from Abovethelaw

• EEOC Must Attempt Conciliation of Class-Wide Claims Before Litigating Them – from Employment Class Action Blog

• The Many Flavors of Retaliation – from Maryland Employment Law Developments

Social Networking & Technology

• Will Facebook’s New Download Feature Change E-Discovery on Social Networks? – from Daniel Schwartz’s Connecticut Employment Law Blog

• Lawyers: Gather Ye Text Messages While Ye May – from Law.com’s Inside Opinions: Legal Blogs

• Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery – from Electronic Discovery Law

• Materials from Social Media Policies – from Compliance Building

• Here’s Why You Don’t Really Need A Social Media Policy – from Lance Haun at TLNT

• N.Y. Ethics Opinion re: Social Networking – from Molly DiBianca’s Going Paperless

• Discretion Is the Better Part of Valor (and Cell Phone Usage) – from Adria Martinelli at the Delaware Employment Law Blog

• LinkedIn: A Violation of Your Employee’s Non-Compete? – from Trade Secrets & Non-Compete Blog

• First Step? Hire a Computer Forensics Expert – from Trade Secret / Noncompete Blog

• HR Tech 2010: “Social” Is Now HR’s Baby (Sorry, Marketing Department!) – from Fistful of Talent

• Don’t Facebook Me: Why You Shouldn’t Google During the Recruiting Process – from Laurie Ruettimann at TLNT

Privacy

• Do You Know Your HIPAA? – from CPEhr

• U.S. Supreme Court’s Decision in NASA Case Could Have Significant Implications for Private Employers – from Workplace Privacy Counsel

• Supreme Court Set to Hear NASA Background Check Case – from employeescreenIQ Blog

Trade Secrets & Non-Competes

• Maintaining Trade Secret Status For Customer Lists: Five Steps Every Company Can Take to Protect Customer Information – from Trade Secrets & Non-Compete Blog

• Top 5 Defenses to Non-Competes – from Rob Radcliff’s Smooth Transitions

• Trade Secrets of Pharmacies Allegedly Misappropriated By CVS Caremark – from Trade Secrets Blog

Wage & Hour

• Class Certification Denied Due to Dissimilarity In Putative “Class” The Way To Go! – from Wage & Hour - Development & Highlights

• Sixth Circuit’s FMLA Employer Reminders, Part One: Send the “Rights and Responsibilities” Notice – from Iowa Employer Law Blog

• Just Because You Sent a Message Does Not Excuse Your Lateness – from Michael Haberman’s HR Observations

Labor

• Non-Union Employee Has Standing to Seek Injunction Against Employer and Union Under Labor Management Relations Act – from Hunton Employment & Labor Law Perspectives™

• Pro-Company – from hrwhiz.com

• NLRB Acting General Counsel Announces Effort to Enhance Pursuit of 10(j) Injunctions in Discharge Cases – from Labor Relations Today

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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.

Firing by voicemail isn’t illegal, but…

Joyce Gaskins sued The Mentor Network-REM following her termination. REM’s cardinal sin that led to the filing of this lawsuit was that it notified Gaskins of her termination by voicemail. In short order, the court of appeals affirmed the trial court’s dismissal of Gaskins’s claim for intentional infliction of emotional distress:

Gaskins’s intentional infliction of emotional distress claim is based on the fact that REM terminated her via voicemail, which she argues is not standard procedure. This is simply not the sort of outrageous or egregious behavior contemplated for this intentional tort.

As this opinion illustrates, there is nothing illegal about terminating an employee by voicemail, email, text message, Facebook, Twitter, or the like. But, as this case also illustrates, employers nevertheless often pay a price for not treating terminated employees with decency. No matter the ills that led to Gaskins’s termination, she deserved to be told of her fate in person. Treating an employee poorly at termination might not be illegal, but it may lead to the bad feelings that cause lawsuits to be filed. It is not unheard of for a company to pay upwards of $50,000 to have even the most meritless employment disputes dismissed. How much is it worth to you to avoid the uncomfortableness of a face-to-face termination?

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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.

Shifting reasons for terminations could leave your business all wet

It only took the U.S. Ryder Cup team a few holes in the pouring rain Friday to realize that their rain suits were not as water-tight as they had hoped. Cold and wet, they had to resort to new gear bought off the rack from the merchandise tent. Thankfully for his team, Corey Pavin was able to take a do-over.

When you terminate an employee, though, you only get one shot. The reason you provide at the time of termination—whether communicated to the employee or merely internally documented—is the only reason that will matter in a subsequent discrimination lawsuit. If you try to change that reason down the road, you will open yourself up to a claim of pretext that could doom your defense.

For a textbook example of how shifting or changing rationales can sink your defense, I’ll leave you with Cicero v. Borg-Warner Automotive, Inc. (6th Cir. 2002). In that case, the employer provided three different reasons for the plaintiff’s termination—one at the time of firing, another in answering interrogatories, and yet another in responding to Cicero’s summary judgment motion. The court concluded that the changing explanations provided sufficient evidence of pretext from which a jury could infer discrimination:

An employer’s changing rationale for making an adverse employment decision can be evidence of pretext…. Shifting justifications over time calls the credibility of those justifications into question. By showing that the defendants’ justification for firing him changed over time, Cicero shows a genuine issue of fact that the defendants’ proffered reason was not only false, but that the falsity was a pretext for discrimination….

While the Court does not question business decisions, the Court does question a defendant’s proffered justification when it shifts over time. When the justification for an adverse employment action changes during litigation, that inconsistency raises an issue whether the proffered reason truly motivated the defendants’ decision.

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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.