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?

1 comment: