Sunday, December 26, 2010
Sunday, November 28, 2010
What Is Worse Than A Worm In Your Apple?
Getting You and Your Company Past the Past Lawsuit.
“What’s worse than finding a worm in your apple? Finding two worms in your apple.” I know, it’s not hilarious, but, if you are my five year old, it’s a real side-splitter. Besides, it’s a clean joke and it inspired my blog. Because… there is only one thing worse for a company’s morale, balance sheet and culture, then a lawsuit. Another lawsuit.
One of the most important Lawsuit Prevention Strategies that a company can implement after a lawsuit is to strategize about what steps it can take so that it will protect itself from being sued again. Is this a real threat? Absolutely. Plaintiffs’ lawyers that succeed in a lawsuit against a company for failing to properly pay overtime, for example, will come back time and again to sue the same company for additional wage and hour violations, such as failure to provide meal and rest periods. It’s easy money. They already have the pleadings written, the class identified, they just have to switch out the code violated and they are back in action. What many “target” companies fail to realize is that there are many Proactive Lawsuit Prevention Strategies that a company can implement to ensure that plaintiffs’ lawyers lose their number.
Announce Your Company’s Triumph. Immediately after a lawsuit, a company should meet with employees to announce the “triumphant” conclusion of the lawsuit. Whether the lawsuit ended in a successful verdict or a harsh liability, the company should set the tone of this meeting as a time to step into the future with optimism. This is a critical step to ensure that employees recognize that the time for “blaming,” financial insecurity, job instability and crisis are over. The tone for the future is a gleeful return to prosperity and positive change, thanking the employees who withstood the challenge of a lawsuit for their tenacity and deep loyalty. This prevents lawsuits because it demonstrates to your employees that their best bet is with you. The next time grievances are raised, the employees will look first to the company for resolution before seeking a lawyer or agreeing to join a class action.
Reflect for Accountability. Ensuring that ground rules are set to avoid the “Blame Game,” begin an honest and candid look into company policies, procedures and “unwritten rules” that allowed for the circumstances that gave rise to the lawsuit. If it is a safety violation, begin to determine how safety can become a priority – not just in words, but in practice. If it is a hostile work environment claim, consider retraining, or policy revisions, or investing in culture change programs that will help employees confront or speak up about hostile or harassing behavior before it becomes the next lawsuit.
Take Ownership for Unpredictable Externalities. Some lawsuits really are impossible to predict. Accidents do happen. Natural and man-made disasters occur. Companies that plan for unforeseeable events with insurance and preventative training are usually the ones that survive them. After a lawsuit is an excellent time to reevaluate insurance. Did your worker’s compensation insurance coverage help your company face this lawsuit? Was the carrier responsive and timely? Was the coverage enough? Was the appointed attorney up to the task? Were your interests served? Were there loop-holes or exigencies that you did not know about? Determining the right kind of insurance, the right amount, the right carrier, can help deter a plaintiff’s lawyer from future litigation, or at the very least, it can help cap the amount of liability your company might incur.
Change. Even if it is painful. Even if it is costly. Change after a lawsuit. Do not go on, business as usual. Or you will end up paying double. Punitive damages exist to “punish” the unrepentant employer. The best evidence of a lack of remorse is “business as usual.” Even if your company was victorious, or the lawsuit was frivolous, be prepared to demonstrate how your company used the challenge of the lawsuit to exceed company or industry standards of behavior. Keep records of the change, the associated costs and the leadership examples established as a result. The law prevents future litigants from using these changes against your company as proof of culpability; however, your company can use them to demonstrate compliance or leadership as of the date of the change.
Don’t Be Bitter. Move on. In the infamous words of Cher in Moonstruck, “Snap Out Of It!” Literally, move past the lawsuit by refusing to let it bring you and your company down. This includes refusing to bad mouth the plaintiffs, refusing to interfere in their ability to seek future employment, if they still work for you, refusing to target them for disciplinary action or termination, and refusing to be open and forthright in your behavior with current employees. Many managers, who have experienced the pain and embarrassment of a sexual harassment allegation or ethics violation, go back to work too bitter, too embarrassed or too fearful to comfortably interact with their subordinates. My advice, “Snap out of it!” Otherwise, risk becoming, at the very least, ineffectual. At the most, a target for future defamation, interference with future contract and wrongful termination claims. Those “burned” by lawsuits cannot prevent becoming future targets by isolating themselves from their coworkers. Instead, these individuals must share the wisdom of their battle with their colleagues, sometimes, humbly or publicly, and then step forward into the future using their talents to create a positive impact for their employers. The sexual harassment and/or assault allegations and associated litigation made against Mark Hurd, Bill Clinton, Kobe Bryant and David Letterman will, most likely be but a footnote in their biographies. (Maybe not for Bill Clinton.) Whether that is wrong or right, it reflects their ability to move past those allegations and use their talent to help themselves and their employers overcome the negative brunt of their respective lawsuits.
What steps have you or your company taken to get past the past lawsuit?
Wednesday, October 13, 2010
WEBINAR INVITATION: Unlawful Harassment Prevention (AB1825 PLUS)
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Tuesday, October 12, 2010
Starting Out On the Right Foot
Well Drafted Job Descriptions Prevents Lawsuits
When I am asked about whether a company needs to write job descriptions, I am reminded of a well-versed passage from Dr. Seuss.
“So be sure when you step. Step with care and great tact and remember that life's a great balancing act. Just never forget to be dexterous and deft. And never mix up your right foot with your left." — Dr. Seuss (Oh, the Places You'll Go!)
A job description is simply a clear, concise depiction of a job's duties and requirements. A well drafted job description, however, is a key proactive strategy to preventing lawsuits. Think of it as starting off on the right foot with a prospective employee.
Job Descriptions Can Prevent Disability Discrimination Claims
When an employee sues his or her employer for violating the Americans with Disabilities Act (ADA), or an analogous state law, in California we have the Fair Employment and Housing Act (FEHA), the employee is alleging that he or she was treated unfairly because he or she has a disability, but was otherwise qualified to perform the essential functions of the job. The conduct that is at the heart of the allegations may occur at any point in the employer-employee relationship. It can occur during the hiring process, through compensation determination, during performance reviews, consideration for promotion, disciplinary actions and in termination. The federal and state laws ask employers, under certain circumstances, to reasonably accommodate employees with disabilities, so that the disability is not a reason for any job related decision. That is, a company may be asked to provide a sign language interpreter for a hearing impaired employee during training seminars so that the employee does not miss out on critical training and is able to participate in meeting as was the subject of the case in EEOC v. UPS No. 08-56874, 9th Cir., 2010.
When employers are sued for discriminating against someone with a disability or failing to provide a reasonable accommodation, the company’s defense may be that the employee or applicant is unable to perform the essential functions of the job, and that the employee cannot reasonably be accommodated. The job description, if written before the alleged discriminatory conduct occurs, is “evidence” of the essential job functions. (Obviously, if written afterward, it could be conveniently drafted to exclude the employee’s known inabilities. This was the case in a recent EEOC lawsuit filed against Woodman’s Food Market because they conveniently changed the “lifting requirements” in the essential functions of their disabled employee’s job, which she had been successfully performing, in order to terminate her.) When written beforehand, the job description demonstrates that an employer has put the employee on notice that if he or she cannot perform this function (with or without a reasonable accommodation, in California,) the employee is not “qualified” for this position.
Well drafted job descriptions should provide objective, quantifiable functions. For example, “the job requires the employee to move and lift packages” is subjective as to what a person might consider “too heavy to lift” and how often that is done. If the mail room attendant must move one small bag of mail per day, this can be done easily by someone with a weak back, but if the job requires “lifting mail bags, which weigh 20-80 lbs each, 75% of each shift scheduled” this should be stated, this specifically, in the essential functions of the job so that individuals with bad backs who cannot perform this arduous labor are on notice and cannot state that this requirement wasn’t “part of their job” when they sue you for wrongful termination. Remember to be open-minded about how the function is done so as to allow for differently-abled employees to accomplish the results of the tasks in different ways. For example, a mail room attendant who uses a wheelchair may be able to move mail bags using a cart or mechanized lifting device.
Job Descriptions Can Prevent Other Types of Disparate Impact and Disparate Treatment Claims
The job description should be a blueprint for hiring, performance review, and progressive discipline to demonstrate a company’s fair, consistent and objective standards for measuring an employee’s abilities. When hiring, for example, the interviewer will use the “job duties” set forth in the job description to avoid asking the “wrong questions.” Wrong questions demonstrate subjectivity, mirror image favoritism (i.e. hiring the applicant that reminds the interviewer of themselves), or questions about “protected categories” i.e. about religion, marital status, veteran status, etc. By simply sticking to the “script” of job duties’ questions set forth in the job description, the interviewer will avoid a claim of discriminatory hiring practices. For example, instead of asking an applicant if their planning on having more children, as casual conversations often flow, the interviewer will ask, “How will you approach the task of designing a course catalog for our company?” The same holds true for how managers can approach performance reviews, promotions and progressive discipline. That is, they can use the job duties and responsibilities set forth in the job description to demonstrate that the employee met, exceeded or failed to meet the expectations of the job. This will help defeat a claim from the employee that he or she was treated “unfairly” or targeted by their manager in the process.
Of course, the job description should not contain duties or functions that are designed to exclude groups of individuals. That is, requiring that a “Social Media Manager” be “youthful or energetic” is asking for an age discrimination claim because it is based on a stereotype and will most likely exclude or discourage older applicants.
Job Descriptions Can Prevent Wage & Hour Claims
Job descriptions can help demonstrate whether an employee is properly classified as exempt or nonexempt. In cases where an employee is suing his or her employer over lost wages, such as overtime pay that he or she alleges she was denied because he or she was misclassified as exempt, the courts look to the duties performed by that employee. In California, job titles don’t determine exempt status, but job duties and salary are determinative. Therefore, if an employer wants to ensure that an employee is exempt, he or she must ensure that the employee is getting paid a certain salary and is performing certain “exempt” work more than 50% of the time. This expectations of duties should be stated in the job description. In addition, if the employee is exercising independent judgment or discretion with respect to matters of significance, these areas of significance should be set forth clearly in the job description. If the employee is supervising others, if the role requires certain certification, licensing, specialized training or knowledge then this should be set forth clearly in the job description as it pertains to exempt status as well. Last, just writing these duties in the job description doesn’t automatically make a job exempt, the employee must actually be performing the exempt duties the majority of the time. Nevertheless, setting these expectations out in writing will help ensure that the employee understands these expectations and strives to meet them or attempts to manage his or her time accordingly. Of course, when job duties and roles change, the job descriptions should be updated as well to reflect and/or maintain the expectation of exempt/nonexempt duties and salary expectation.
Job Descriptions Can Make You an “Employer of Choice” - Employees Don’t Think About Suing Them
Bottom line, employees want to work for companies that demonstrate leadership and value diversity. These are companies that have few employee lawsuits because they value employee for what they can do, not what they can’t do; for who they are, not how they are. Employees don’t feel compelled to teach these employers lessons through litigation, because they are grateful that they have a job with an employer that exhibits a raised awareness already. The job description sets this tone. Job descriptions that encourage differently-abled applicants and diverse applicants to apply demonstrate this commitment to employees and this raised awareness about how to value employees.
If cost is a concern, consider that the average accommodation costs $600 or less, according to research conducted by the Job Accommodation Network (JAN), a service of the U.S. Department of Labor’s (DOL) Office of Disability Employment Policy (ODEP), and many valuable support services are offered at no cost, not to mention the tax write-offs for hiring disabled veterans, some employers actually make money in the process of hiring disabled employees, experts say.
The job description will help your company prevent these types of lawsuits. I am including a Sample KC&A Job Description* to provide guidance if you feel tripped up. But, remember that in order to be proactive about drafting job descriptions, you must try not to mix up your right foot with your left.
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.
Wednesday, September 15, 2010
It’s Never “Too Little Too Late...To Be Proactive.”
Why EXIT INTERVIEWS Are a Key Proactive Lawsuit Prevention Strategy.
An Exit Interview is an interview that is usually conducted when an employee is leaving or exiting the company, hence the name. It is often done after an employee gives notice, resigns abruptly or on occasion, upon termination. The Exit Interview can give a company many insights into how it can improve its management style or benefits since the exiting employee is frequently honest with candid criticisms of the company, his or her manager or the industry – thinking they have little to lose heading out the door. More importantly, the Exit Interview can be a strong lawsuit prevention tool used to identify potential lawsuit grenades and diffuse them before they turn into expensive litigation.
The Exit Interview Can Be Used to Prevent Trade Secret Theft and Unfair Competition.
The interviewer should carve out time in the exit interview to “review” contract provisions or handbook provisions that the employee agreed to during employment that bind the employee after he or she leaves the company. For example, if the employee signed a contract that prohibits the disclosure of confidential information or trade secret information, that information cannot then be used or disclosed to a subsequent employer. Upon exit, the interviewer should ask the employee if he or she remembers signing this agreement and if he or she understands that the company will protect itself if these trade secrets are disclosed to competitors. If an employee begins to argue about the wording in these provisions or whether or not they are legal, this is a red flag for the employer that the employee is considering violating the provisions or agreements.
In recent headlines, Hewlett Packard’s CEO, Mark Hurd was “asked to resign” for ethics violations. Soon afterwards, he was hired by Oracle, Hewlett Packard’s competitor. Hypothetically, if Hurd had been interviewed as he was leaving HP and he indicated that he intended to work for Oracle soon after leaving HP, the former employer might have structured a severance payout over time, rather than pay him all up front. Moreover, the statements he made during the interview regarding his understanding of confidential information and trade secrets could then be used to ensure he upheld those agreements in the future. Any “differences of opinion” could have been negotiated into his severance agreement beforehand. The Exit Interview might have prevented the existing lawsuit HP filed last week to recover the multi-million dollar payout and prevent Hurd from disclosing HP’s trade secrets to Oracle.
The Exit Interview Can Be Used to Prevent Unfair Competition and Ringleading Behavior.
Although covenants not to compete which prohibit employees from competing with their former employer are, generally, prohibited in California, some states do allow them. Also, California has carved out exceptional situations where a covenant not to compete is permissible, such as the sale of a business or in LLCs. In these circumstances, the Exit Interview is an ideal time to inquire as to what plans for employment the departing employee has and whether he or she intends to directly compete within the industry or ask other employees to leave with him or her. If the employee volunteers that he or she is intending to compete, this is an ideal time to remind the employee of their continuing obligations and that the company will vigorously protect its interests from unfair competition.
In addition, many employees are unaware of provisions within contracts they have signed or handbooks that prohibit them from ring leading other employees out the door. In the event that the exiting employee says that that they are aware of other employees leaving, it is the right time to explain that unfairly competitive actions, such as destroying documents, refusing to return property, leaving at once, or other malfeasance that impairs day to day business operation are actionable. These questions and the information that they solicit can protect a company from the “shock” that a mass exodus causes.
The Exit Interview Can Be Used To Prevent Theft or Disclosure of Intellectual Property
In technology industries, for example, many employees sign agreements that state that their ideas and inventions made during their employment term are owned by the company through assignment. During the Exit Interview, the interviewer can ensure that the exiting employee truly comprehends that he or she may not own the work that they spent five years on when they leave, even if their name is on the patent. Any “confusion” or “disagreements” can be worked out well before the employee begins working for a competitor and attempts to use this technology for the benefit of another so that future injunctive relief is proactively prevented.
The Exit Interview Can Be Used to Prevent Unlawful Solicitation of Customers or Clients.
In industries where customer lists are the primary asset, the interviewer should ask the exiting employee whether he or she understands that using the customer list to “solicit” new business with a new employer is not allowed. Although many employees understand that they are permitted to “announce” their departure to customers, the interviewer should ensure that the departing employee understands the difference between a professional announcement and a solicitation. In addition, he or she should be informed that downloading password protected customer information before leaving violates company policies.
The Exit Interview Can Prevent Ongoing or Future Harassment or Discrimination.
Finally, an interviewer should always ask an employee if she or she is leaving because of discrimination or harassment experienced on the job. Although many employers would rather not open the Pandora’s Box of a harassment or discrimination investigation, it is always better to be on notice before receiving a DFEH (in California) or EEOC complaint. If the answer is yes, this gives the employer many opportunities to appease the disgruntled employee before he or she retains counsel or initiates an expensive lawsuit in vengeance. Also, if an employee is leaving because of discrimination or harassment, the problem is often much larger than that one employee walking out the door and the “alleged harasser/discriminator” is still employed to wreak havoc on current employees. The Exit Interview answers can help prevent future lawsuits from current employees by bringing the alleged wrongdoer to the attention of the individuals in the organization that are in the position to help remedy the wrongdoing.
The bottom line is that disgruntled employees most often file lawsuits soon after they leave their former employer. The last, best effort a company has to proactively prevent a lawsuit is …the Exit Interview. So as not to leave you out there on your own…my own Exit Interview is available for download here: Sample Exit Interview*
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.
Sunday, September 12, 2010
Webinar Invitation
Lawsuit Proof Investigations
(Based on Federal and California State Law)
October 5, 2010
10:00am - 11:30am (PDT)
This Webinar is designed for professionals who conduct investigations into employee misconduct. Whether you are in human resources, in-house counsel or an outsourced expert, this Webinar will show you how the opposing counsel will try to attack and undermine your investigation.
Once you learn the 6 common "ATTACKS" that opposing counsel will use in litigation, you will know how to avoid the actions which will make your investigation vulnerable. You will learn how to make your investigation "Lawsuit Proof" against these attacks so that it withstands intense scrutiny during depositions, arbitration or courtroom testimony.
About your presenter: Jody Katz Pritikin, Esq.
After working as an attorney in Los Angeles, Jody identified early in her legal career that almost all employment lawsuits are preventable. Recognizing that businesses need to prevent lawsuits, she founded Katz Consulting & Associates to teach business how to proactively plan for and consequently prevent lawsuits and save the considerable expense of litigation. With over thirteen years devoted to preventing lawsuits, her expertise lies in conducting investigations, teaching management, counseling HR and in designing policies to protect corporations from lawsuits.
Jody Katz Pritikin, Esq. grew up in Southern CA and received her J.D. from USC Law. She is a member of the CA State Bar, the LA County Bar Association's Labor & Employment Group, the CA Org. for Workplace Investigators (CAOWI), SHRM and PIHRA. Her clients include small and mid-size companies as well as many Fortune 500s and 100s. She is an outsourced, neutral investigator used by her corporate clients and attorneys in highly sensitive investigations. She is a featured author/ blogger in trade publications and on the blogs of LACBA, ABA, Lawlink and PIHRA.
More information about this presenter, other Lawsuit Prevention Strategies and upcoming Seminar/ Webinar topics are available at: http://www.proactivelawsuitprevention.com.
This program is currently being offered at a SPECIAL RATE of only
$150.00. We expect this program to fill up quickly so please do not wait to register for it.
Click REGISTER NOW to reserve your spot.
Once registered you will receive an email confirming your registration
with information you need to join the Webinar.
System Requirements
PC-based attendees
Required: Windows® 7, Vista, XP or 2003 Server
Macintosh®-based attendees
Required: Mac OS® X 10.4.11 (Tiger®) or newer
Monday, August 9, 2010
Lawsuit Proof Investigations
One of the best Lawsuit Prevention Strategies that I advocate to my clients is how to anticipate the myriad of ways a plaintiff’s lawyer will undermine the investigation that you, the employer (or in many cases the human resource investigator or in-house counsel), conducted. Why does this prevent lawsuits? Because (1) a Lawsuit Proof Investigation may deter a plaintiff’s lawyer from even taking a case. It demonstrates that the employer acted reasonably and will limit or mitigate the damages that an employee can collect (i.e. it’s not worth the plaintiff lawyer's time or money, if he (or she) takes the case on contingency, and (2) it shows the employee considering litigation against your company what a “fair” result might be if he or she decides to pursue litigation. That is, if the employee has “made their case” to the investigator and believes that the investigator is fair and neutral, then the conclusion that the investigator makes, even if it is not the employee’s desired result, will be the likely conclusion that a judge or jury will make after hearing all of the same facts. At this point, the employee will hopefully realize that a lawsuit will be expensive, time consuming and possibly, pointless.The six ways that a plaintiff’s lawyer can undermine or “attack” an investigation are:
o The “Neutrality” Attack
o The “Time” Attack
o The “Fair & Thorough” Attack
o The “Taint Free” Attack
o The “Retaliation” Attack
o The “Burden to Remedy” Attack
The details of these attacks are the subject of a program which I will be presenting to the attendees of PIHRA District 15 on August 17, 2010, 11:30am-1:30pm. If you are interested in learning more about them in an entertaining format, please register and attend: http://www.pihra15.org. Nonmembers are permitted to attend as well.
To demonstrate my gratitude to PIHRA in supporting Katz Consulting & Associates’ mission to proactively prevent lawsuits, I am also including downloadable Sample Documents that are helpful in conducting investigations of sexual harassment.
Sample Sexual Harassment Complaint Form*
Sample Investigation Questions for the Accused*
Sample Investigation Suspension with Pay for Accused*
Sample Investigation Conclusion and Recommendations*
*The samples are not intended to be "ready for use" by readers. In addition, they are not to be construed as legal advice. Rather, these forms are intended as samples and should be adapted to your particular company's needs. Although this work is copyrighted, you may freely use the content in creating or changing your own forms. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.
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