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“When my secretaries start to work for me, I let them know I’m the guy who brings the ax,” says Allan Weitzman, a partner and head of the labor and employment law department at the Boca Raton, Fla., office of New York-based law firm Proskauer Rose. “You need a strong stomach for this job.” You could call Weitzman’s work “disemployment counseling.” It’s an unhappy legal service that’s growing in demand as the national economic slowdown hits South Florida. As companies retrench and layoffs increase, labor and employment attorneys are finding themselves called upon to guide employers through a thicket of regulatory guidelines and contractual obligations. The goal: Avoid those nasty employment discrimination lawsuits. Weitzman, who with Proskauer Rose associate Jennifer Isko hosted a June 12 downsizing seminar for human resources professionals, says he’s added half a dozen clients since the first of the year, each of them in the process of eliminating a minimum of 250 jobs. The clients have asked not to be named, but Weitzman says they include high-tech and other South Florida firms. Another South Florida attorney, Robert Turk, has made it part of his routine to check MSNBC’s Web site for its daily “layoff list.” A shareholder in the Miami office of Gunster Yoakley and chair of the firm’s statewide employment practice group, Turk says Florida’s employment picture is stronger than most of the country’s. But, he notes, Gunster also hosted a recent seminar on downsizing and, according to Turk, since the first of the year the firm has seen “a definite uptick” in requests for advice on job cuts. Most of Turk’s downsizing clients also come from the high-tech sector but include retail and leisure industry firms as well. “It’s not just troubled companies that call,” he says. “We also get businesses going leaner and meaner” in anticipation of continued economic uncertainty. Lawyers and other downsizing consultants say companies need outside counsel on job cuts for a variety of reasons. While larger firms’ personnel questions are usually handled by in-house human resource professionals, Turk says the economy has been so strong for so long that “Most HR people are virgins at dismissals.” Firms too small to have HR departments have a more obvious need for advice, according to Marilyn Durant, a consultant with Boca Raton-based Lincolnshire/Berke-Durant & Associates and president of the Human Resource Association of Broward County. Durant says such firms often fire people without advance notice and with no severance packages, generating lots of ill will. She characterizes these younger, smaller firms as “risk-takers,” leaving themselves open to legal action. Heather Gatley, a partner in the Miami office of Steel Hector & Davis and vice chair of its labor and employment department, says smart employers look for ways to cushion the blow. Gatley, who led a recent downsizing seminar in Fort Lauderdale, stresses alternatives to simple termination like voluntary retirement, extended benefits, and out placement services. “Let them down easy, and they’re less likely to show their anger in a lawsuit,” she says. Discrimination lawsuits — particularly over age or gender — are the largest area of potential liability. Weitzman, who calls employment law “the most overly regulated area of the law,” says that when it comes to layoffs, “there’s a multitude of agencies looking over your shoulder.” On the federal level, he cites the Equal Employment Opportunity Commission and the Department of Labor; within Florida, he points to the state Commission on Human Relations. In that landscape, Weitzman warns, a poorly handled pink slip can be an invitation to a court date. Weitzman says due diligence is part of an employer’s protection against discrimination suits in the wake of job cuts. He says it’s “boring but essential” that downsizing begin with a thorough examination of job contracts, organizational tables, and job descriptions. “Juries want to know there’s a sound economic basis for firing someone,” Weitzman says. Weitzman emphasizes that employers exercise extreme care in eliminating employees on the basis of performance. “Performance evaluations are a bell curve,” he says. “You find yourself creating tie-breakers in the middle.” That leads employers to undertake “ranking” of employees, he says, in which case supervisors often make “undocumented, after-the-fact” decisions. “I see HR people having to clean up after supervisors all the time,” Weitzman says. “They don’t document, they don’t give honest evaluations. They either want to be loved or they’re total cowboys.” Supervisors’ ignorance of employment law can make their ranking methods actionable, he says, pointing out that a criterion like “promotability,” for example, can be grounds for an age discrimination suit. Weitzman insists that clients circulate nondiscrimination notices to supervisors. “I want to be able to shove that in a jury’s face” in the event of a lawsuit, he says. Aside from defensive strategies against discrimination suits, much downsizing advice concerns compliance with the federal Worker Adjustment and Retraining Act, or WARN. That law requires companies to give employees and local government 60 days’ advance notice of plant closings or mass layoffs. “It’s the first thing you want to discuss with a client,” says Turk, because its detail and complexity can make it hard to know when and where it comes into effect. Companies may wish to avoid the WARN Act notice requirement, Weitzman points out, since impending termination can lead to employee workplace sabotage and “sinking ship syndrome” as employees take jobs elsewhere. There are exceptions to the notice requirement in the act, but Weitzman describes them as “ambiguous” and says he advises clients to take their chances, give notice, and “err on the side of caution.” Good “downsizing technique” also serves a public relations purpose. Each person let go becomes “an ambassador” to the community, stockholders and potential investors. For that reason if no other, Turk says, he urges clients to treat employees with respect even as they’re fired. Karen Amlong, partner at the Fort Lauderdale husband-and-wife firm Amlong & Amlong, is another labor and employment lawyer. But her advocacy is on behalf of employees, frequently those filing discrimination charges against the clients of Weitzman and other management-oriented attorneys. She has a mixed appraisal of downsizing and the work of her legal opposites. Amlong says that all too often employers use downsizing as “an opportunity to rid the work force of ‘undesirables’ — older workers and women. When they’re one of 200 dismissals, you can camouflage it.” Amlong says that every time a wave of job cuts hits South Florida, she picks up new clients with discrimination claims, most recently former employees of Motorola and Sensormatic Electronics. As far as legal counseling for downsizing employers, Amlong favors it for two very different reasons. On one hand, she says, when companies are properly educated on employment law it stops people from being fired unjustly. On the other, if employers seek legal advice and then ignore it, it makes Amlong’s cases stronger. “Prior knowledge equals malice aforethought equals punitive damages,” she says. Despite his efforts, Weitzman fully expects court calendars will soon be clogged with cases stemming from the current wave of cutbacks. If it hasn’t started yet, he notes, EEOC regulations allow filings up to 300 days after dismissal, and the Florida Commission on Human Relations allows a full year. “The hopper’s going to start filling up,” Weitzman says. “When people get out there and find there’s no jobs, they’ll sue.”

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