Solid intelligence matters. Leaders strive to anticipate and undermine their opponents’ moves. Football coaches study an opposing team’s play calling. Generals track the enemy with satellites, spies and the Special Forces. Business executives monitor competitors.
In-house counsel’s role with HR is no different. Spotting a plaintiffs lawyer’s line of attack in advance puts the company in the driver’s seat. The trick is thinking like a plaintiffs lawyer.
I once worked at a firm that mainly sued employers. Now I’ve switched camps. No more plaintiffs work for me. Yet, having seen the enemy’s tactics tightens my counterattack.
Plaintiffs lawyers have less access to documents and co-worker witnesses than the company, so they must win another way. They often adopt guerilla tactics — working from behind the scenes before the company realizes it’s dealing with opposing counsel. Let’s expose a few of their covert tactics.
• Asking about overtime claims. Plaintiffs lawyers love juicy overtime claims. Search the Internet for “overtime lawyer in Texas” to see for yourself.
Compared to other employment claims, overtime claims generate fatter contingency fees. The lawyer can sweep hundreds of employees and ex-employees into a class action-like overtime lawsuit.
Folks call a plaintiffs lawyer when they feel like their company hasn’t given them a fair shake. That call could be triggered by anything from a termination, to being passed over for a promotion, to getting a mediocre performance review. Savvy plaintiffs lawyers turn the conversation to the employee’s pay. The lawyer asks: “Were you paid a salary without overtime pay? Were you an independent contractor? Did the company pay you for all the hours you worked?”
In-house counsel should not get caught by surprise. Counsel should double-check pay policies for compliance with federal and state overtime laws. Even upon discovery of a vulnerable policy, there are graceful ways out. Never evaluating policies, however, hands a plaintiffs lawyer a better chance to collect liquidated damages.
• Lodging a grievance. In Texas, discrimination claims can be hard for an employee to win. Plaintiffs lawyers know that. They also know that retaliation claims can be an easier mark. To jurors, it makes sense that a boss might strike back at an employee who has spoken out. Revenge can be a powerful motive.
A plaintiffs lawyer looks for ways that an employee can buy protection against retaliation. Plenty of laws protect whistleblowers and folks who assert their rights, like Title VII, the Americans with Disabilities Act, the Family Medical Leave Act, the Fair Labor Standards Act, the Sarbanes-Oxley Act and the Foreign Corrupt Practices Act.
Here’s how it works. The employee knows she’s on thin ice because she’s been verbally counseled for performance. So she sees a lawyer. The lawyer coaches her to report that she felt sexually harassed by a co-worker’s off-color jokes. Or the lawyer might search for an arguably technical SOX or FCPA violation to spotlight. The employee blows the whistle to HR in an email, leaving a paper trail. Her email probably copies everyone up and down her reporting chain. That way, no one can deny knowing about her grievance when they let her go.
The employee’s email grievance just bought some protection. Without a paper trail of the employee’s earlier performance problems, the company may have a tougher time explaining why it terminated the employee shortly after she blew the whistle. It’s no surprise that EEOC charges alleging retaliation led the increase in charge filings last year.
Companies can push back. In-house counsel should urge managers to continually document performance, good and bad. Even a supervisor’s email to herself about verbally counseling an employee is better than nothing. Also, in-house counsel should tell the company to take employee grievances seriously by committing appropriate resources to resolve them. Finally, in-house counsel should stress that if the employee must be disciplined or terminated for performance, management should also involve a manager who has no idea the employee made a grievance and can check the supervisor’s facts for himself.
• Fishing for details. Wrongful termination claims tend to get tossed out on summary judgment. But plaintiffs lawyers have a few avenues to reach a jury. The lawyer might catch a manager giving two different explanations for terminating the ex-employee at two different times. Better yet, a manager who talks trash about the employee’s race or grievance may blow summary judgment for his company. That’s the kind of dirt that gets a plaintiffs lawyer excited.
A motivated lawyer may dig for this dirt himself. He might ghost write emails for the ex-employee to send her old manager. Coaching an ex-employee to confront the manager also works wonders. Here in Texas, it’s legal for her to secretly record the confrontation. The ex-employee’s goal is to catch the manager with his foot in his mouth.
The ex-employee often tries to nettle the manager into answering an open ended question like: “What were you thinking when you fired me right after I emailed you and HR about my co-worker’s crass jokes?” Without counsel, the manager’s response is rarely good. Worst case scenario, the manager says: “Can’t believe you’d cough up that lie about my buddy. You got what you deserve.” Hello jury.
In-house counsel should tell company managers to let HR handle all talks with a high-risk employee. They’re trained for it. HR should be prepared to deflect the employee’s loaded questions.
• Ambushing managers. A plaintiffs lawyer carefully picks when to come out of the shadows. That’s when he has the greatest element of surprise. My old boss loved TWC telephone appeal hearings on unemployment benefits.
Think about it. At the hearing, the managers testify under oath. They usually haven’t lawyered-up. And they won’t realize the ex-employee has a lawyer until the hearing starts and he’s on the line. Then, the cross-examination begins.
The manager’s safest response may be to immediately concede the benefits claim. Facing down the lawyer alone is just too risky.
Plaintiffs lawyers look to take in-house counsel by surprise. Don’t be fooled.