Seen yesterday at AT&T Park, as photographed by The700Level.com:
Better sign these kids up now for the anti-harassment power course when they enter the workforce.
I believe that litigation is the worst possible way to settle disputes. This may come as a shock, considering that I am a litigator and trial lawyer. Consider, however, that when you decide to litigate, you resolve to pay me six figures for the following: to prepare and respond to discovery requests, produce and review documents, prepare for, take, and defend depositions, draft and respond to motions, and prepare for a trial that has less than a 5% chance of ever occurring. You also resolve to have years of your life and the lives of your employees sucked up by document productions, depositions, reviews of letters, pleadings, and motions, and court appearances. All the while, I’m also dealing with obstreperous opposing counsel (which drives up your cost even more) and an over-taxed court system that likely lacks the time, resources, and manpower your case deserves. In other words, in many cases you are tossing good money after bad. It’s my job to appropriately counsel you so that does not happen.
There are lots of cases that have to be litigated to be resolved. A (small) percentage of them will even need the wisdom of a jury of our peers to conclude. When a plaintiff makes a settlement demand many times in excess of what it will cost you defend the case, litigation makes sense. When the future of your business hinges on an outcome (such as a key employee’s theft of trade secrets), litigation makes sense. When an employee did something horrifically wrong causing the termination, and you cannot in good judgment pay that employee any amount of money, litigation makes sense.
Litigating on principle, though, is not preferred. When ex-employee accuses you of bigotry by suing you for discrimination, your natural inclination is to roll up your sleeves and fight to defend your name. In many cases, that inclination is wrong. You are running a business, and litigation should be treated as a business decision, not an emotional decision. Emotional decisions cost money, and end up as headlines in your local newspaper.
Steve Strauss, writing at USAToday.com, offers businesses this advice: “Not every dispute is a litigation-worthy dispute. Even in the best of cases, you should think that your odds of winning are 50-50. The judge may say yes, or she may say no. The jury may find in your favor, or not. It's 50-50. Of course some suits are better than others, but you just never know what a judge or jury will do.” He is right when he says when you litigate “you are playing with fire and if you are not careful, you will get burned.” Keep these ideas in mind in your next employment dispute. They will lead to a reasoned business decision, not an emotional one.
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.
Three stories caught my eye this week: Lawsuit of the Day: Pass the Wooden Dildo, Please (via Abovethelaw.com), Gay Skydiving Instructor Sues Over Firing (via Legal Blog Watch), and “Chocolate Delicious” and Man-on-Man Harassment (via Philip Miles’s Lawffice Space). If those headlines don’t garner clicks, none will.
Here’s the rest of what I read this week:
SCOTUS
Supreme Court Watch: Part 1, Part 2, and Part 3 – from Maribeth Minella at the Delaware Employment Law Blog
SCOTUS: Is an oral complaint protected conduct under FLSA’s anti-retaliation provision? – from LawMemo Employment Law Blog
Argument preview: The Fair Labor Standards Act and oral complaints – from SCOTUSblog
Supreme Court to Hear Three Employment Cases This Term – from Patrick Smith’s Iowa Employment Law Blog
U.S. Supreme Court Refuses to Hear Donning and Doffing Case – from Wage & Hour Counsel
Family Responsibility
Being a great dad – it’s all in the definition – from Rob Schwartz’s Fairness Matters
Employee Entitled to Maintain Lawsuit for Interference with FMLA Rights Even though Employer Granted All FMLA Leave Requested – from The FMLA Blog
How Employers Can Minimize the Risk of Family Responsibilities Discrimination (FRD): Developing a Prevention Plan – from George Lenard’s George’s Employment Blawg
Family Friendly Workplace? When the Sh!t Hits The Fan – from Tanya Barham at Fistful of Talent
FMLA FAQ - Can an employee fill out his own medical certification? – from FMLA Insights
Deathbed Emails - Is There a “Sick Day” Double Standard? – from Wayne Turmel at bnet
Discrimination
The “Commonsense” Bill and Its Nonsensical Implications – from Stephanie Thomas’s Compensation Cafe
Steps an employer should take to reduce the possibility of sexual harassment occurring in their workplace – from Employment Law Bits
Drunk — and Disabled? – from The Word on Employment Law with John Phillips
EEOC to Hold Meeting on the Use of Credit History as Employment Screening Device from Washington D.C. Employment Law Update
Obesity - Physical characteristic or physical impairment – from GT LE Blog
$2 Million Jury Verdict Against a Wisconsin School District For Violating the ADAAA – from Minnesota Labor & Employment Law Blog
Record ADA claims should wake up employers – from Jane Lewis Volk at the Pittsburgh Post-Gazette
Litigation
Sleight of hand and litigation statistics – from Walter Olson’s Overlawyered
2010 Fulbright Litigation Trends Survey Shows Increase In Employment Litigation – from Laconic Law Blog
“The onslaught of wage and hour litigation continues unabated” – how will you protect yourself? – from CPEhr’s Small Biz HR Blog
Trade Secrets & Non-Competes
Coaches & Non-Competes – from Rob Radcliff’s Smooth Transitions
Blog post violated nonsolicitation clause in Amway agreement – from Evan Brown’s Internet Cases
Garden Leave as Consideration for a Non-Compete? – from Trade Secrets & Non-Compete Blog
Bank of America Sues Ex-Programmer for Trade Secret Theft – from Trade Secrets Blog
To Poach or Not to Poach: Now a Federal Question? – from Trade Secret / Noncompete Blog
HR
How Not to RIF – from Workplace Prof Blog
20 Common HR Metrics & Their Formulas – from Where Great Workplaces Start
Interviewing the hostile witness – from Stephen Meyer’s HR Cafe
Low-Tech Monitoring of Employees Can Result In Employer Liability from Employer Law Report
Miscellaneous
Social Media Now More Popular E-Mail on Mobile Devices vmashable.com
NLRB ABCs – from Manpower Employment Blawg
Employers should confirm their I-9 verification policies and systems are working properly – from Ryan Rivchun’s Business, Employment and Real Estate Law in Ohio
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.
Yesterday, the U.S. Supreme Court heard oral argument in Kasten v. Saint-Gobain Performance Plastics (transcript available from Supreme Court’s website), which asks the following question: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?
By way of background, the 7th Circuit held that the FLSA’s anti-retaliation provision—which provides that an employer cannot “discharge or in any other manner discriminate against any employee because such employee has filed any complaint”—covers intra-company complaints, but they must be in writing: “[T]he natural understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer….” In comparison to Title VII’s anti-retaliation provision—which broadly covers any employee who “opposed” any unlawful practice—the FLSA narrowly requires that employees file a complaint for coverage. Thus, Kasten will likely come down to the issue of whether making an oral complaint is considered a filing.
The plaintiffs’ bar may hold out hope that the Roberts Court, which has favored retaliation claims in the past, will extend the FLSA’s narrow language to cover oral complaints. Based on yesterday’s oral argument, I would not hold out much hope for a reversal. The liberal wing of the Court was concerned about the ability of immigrants and low-wage workers to enforce their rights through effective written complaints. But, even Justices Breyer and Sotomayor expressed concerned about an employee who, at a cocktail party, sees a supervisor and complains of a wage-and-hour violation.
The following exchange (which was the best of the argument), likely is the lynchpin to the decision:
Justice Scalia: My problem is, I cannot decide on -- on the question of whether filing means filing only in writing or also includes verbal filing, without resolving that other question. That is to say, if indeed the complaint has to be quote, “filed” with the government, I’m inclined to think that an oral complaint pursuant to procedures established by the agency which permit an oral complaint, even a complaint by telephone that would be okay.
But my goodness, if it applies to private employers as well including employers that have no grievance procedures, including employers who have employees who go to cocktail parties, I am -- I am very disinclined to think that it -- that it could mean an oral complaint in -- in that context….
Justice Sotomayor: What does file -- what is the meaning of “filed”?
A: It means to submit or lodge.
Justice Scalia: So you are filing your argument right now. Now come on, people don't talk like that…. That -- that -- that is absurd. You are not filing an argument right now. Nobody uses the language that way….
Justice Kennedy: I would like to go back to the question Justice Scalia filed just earlier.
Reading the tea leaves, I predict a win for the employer based on the narrow language of the FLSA’s anti-retaliation provision. I also expect a strongly-worded dissent based on the policy implications for workers incapable of making effective written complaints.
For more coverage of the Kasten oral argument, I recommend the insightful thoughts of Paul Secunda at the Workplace Prof Blog.
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.
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.
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.
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:
Describe the pending claim.
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.
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.
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.
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.
Hoarding is not a bad thing. Tell recipients to err on the side of over-saving.
Designate one company employee as the point person for any questions about the litigation hold and employees’ duties to preserve information and documents.
Alert recipients about the to the risk to the company and its employee for failing to heed the litigation hold request.
Ensure that the recipient signs a verification signifying the receipt the litigation hold.
Periodically recalculate the litigation hold to ensure continuing compliance.
