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Employees’ increased investment of time and energy in the workplace and a changing economy are part of the reasons there has been a jump in workers challenging their terminations over the past decade. Such is the viewpoint from employment lawyers from a Boston firm who just came out with a book on wrongful terminations that reflects the latest cases, legislative enactments and strategies for representing clients. “People are spending much more time in the workplace and identify with their jobs and they care much more about protecting their jobs,” said Nancy S. Shilepsky, co-author of “Representing a Plaintiff in a Wrongful Termination Case.” “People’s private and work lives are much more intertwined.” Juliane Balliro, co-author of the book published by Massachusetts Continuing Legal Education, added that the increase in termination challenges also comes from a “greater awareness” on the part of employers and employees about their rights and obligations in the work environment. “They may not be getting it right or fully understand it, but at least they’re aware of it,” she said. Shilepsky and Balliro are partners of Tillinghast, Licht, Perkins Smith & Cohen in Providence, R.I. and Perkins, Smith & Cohen in Boston. Shilepsky authored the first edition of the book in 1993. Compared to a decade ago, the dynamic between employee and employer has changed, and not necessarily for the better, they said. “Because there is so much emphasis placed upon employment discrimination matters, people tend to be more cautious in their dealings with each other on a personal level,” Balliro said. “You see it across the board, but it is more evident with supervisor and subordinate relationships.” PAYMENT OPTIONS Some of the termination cases ending up in court are a direct result of the economy. The recent economic climate showed a lot of people were riding high on the dot-com new economy wave, which resulted in new ways of getting paid, they said. “People had agreed to compensation arrangements that were less about weekly wages and more about equity and phantom stock,” Shilepsky said. “As the economy has changed, a lot of those arrangements are not paying off the way people had expected them to. We have an abundance of a new kind of case: compensation disputes involving executive level and professional level employees.” The area of executive compensation is providing a great opportunity for work by attorneys with a strong reputation in this area. “It’s a good opportunity for well established employment lawyers to make a mark,” Balliro said. One type of workplace case being filed more frequently these days involves retaliation by an employer against an employee who files a discrimination claim, Balliro said. What is also emerging is that employers are being found not liable for the underlying claim of discrimination, but responsible for retaliating against an employee for filing a claim in the first place, she said. “That translates into employers who are mishandling their employees after filing a complaint for discrimination, regardless if the complaint has merit,” she said. “Sometimes employers feel more offended … they engage in retaliatory acts that make the situation worse. We see employers, particularly in retaliation cases, who do not want this person who has accused them of such horrible things in their workplace.” She added that employers might conduct a “cursory investigation” to placate the employee or minimize the seriousness of the complaint, viewing it as “self-protecting” behavior.” It is not unusual for ignorance on the part of employers’ obligations to employees or employees’ lack of understanding about their rights to play into the number of cases that get filed, they said. “A number of employers do try. They get a limited amount of training in this area and often have a hard time applying the training they do get to individual situations,” Balliro noted. With more people moving in and out of jobs at a rapid pace, communication problems that could eventually lead to discrimination complaints are more commonplace, they said. “The relationships we used to see in the workplace don’t exist so you have ‘virtual strangers’ talking to each other about very personal issues,” Balliro said. CHECK IT OUT When weighing whether to take a case on, Shilepsky uses a three-pronged checklist: are the parties involved credible and sympathetic; what are the possible legal claims; and what are the potential damages. Just because a case may sound good on paper, doesn’t mean it’s worth pursuing or there is a legal basis for doing so, she said. “Bad management, unkind management and even unfair management is not necessarily illegal management,” Shilepsky said. “Just because what was done to them was mean and unfair, doesn’t mean it was illegal.” Even if an employee was wronged, lawyers should question how the client was damaged by the employer’s behavior, she said. “You have to ask if you can quantify it in a way that is worth pursuing it. Sometimes the answer is no,” she noted. When assessing a potential client’s case, it’s important to try and separate fact from rumor — and belief from perception — given that employees sometimes feel they’ve been discriminated against based on anecdotal information or workplace rumor, Balliro said. It’s also important for a potential client to understand that these types of cases can be a huge time commitment and an enormous emotional commitment, she added. “What I often tell clients is that you’ve been hurt and you may not feel like steak right now, but going through the litigation process — win or lose — you’re going to feel like hamburger,” Balliro said. Plaintiffs’ lawyers in counteracting a defense by an employer, need to investigate the “total picture” of what happened and generally try and prove that what happened to their client occurred with other employees with different consequences, they said. “It’s important to show that all the excuses, the legitimate, nondiscriminatory reasons for the adverse action, are mere pretext for an unlawful reason. And we do that by comparisons,” Shilepsky said. One way of doing such a comparison, Balliro said, is by looking at how an employee is viewed before and after filing the complaint. That can be accomplished by inspecting reviews or performance evaluations. “Often what you see is someone who is a rising star, received top-notch performance reviews, is a team player … and after the complaint is filed the performance evaluation dropped significantly,” Balliro said.

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