May 1, 2003
Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.
Training Managers To Avoid Employee Lawsuits:
Make Sure They Know When To Say "Whoa!"
When we train managers in the skills necessary to avoid employee lawsuits, we do not train them to come up with all of the right answers. We know we cannot turn managers into lawyers, and we don't try.
Instead, we train managers to come up with all of the right questions, and to get the answers before it's too late. The key is being able to identify those situations in which it is crucial to know when to stop what you are doing, and find out what to do next. Otherwise, having not been schooled in the counter-intuitive world of employment law, a manager will plow through the day using "common sense" or "business judgment," and unknowingly blunder into an ADA violation, an FMLA claim, a retaliation lawsuit, or any one of the innumerable other bases on which employees can hold their employers responsible for hundreds of thousands of dollars in damages.
Over the years, Avoiding Lawsuits has discussed the legal "red flags" that should cause a well-trained manager to stop in his or her tracks. Periodically, it is helpful to take a step back, and see how all of this applies in the real world. Below are some recent cases in which judges and juries dealt with the routine situations that confront people who have to manage other people. Sometimes the managers handled things correctly; other times, they did what seemed to them to make sense, without regard for the law, and paid the price.
The Conflict Between Maintaining Work Standards
And Maintaining Legal Compliance
Chris Schultz was a 45-year old building maintenance technician employed in a hospital near Chicago. In 1999 he took FMLA leave to care for his mother, who suffered from heart disease and diabetes, and his father, who was battling Alzheimer's disease. After his mother died, Schultz continued to take intermittent FMLA leave to care for his father.
Schultz' propensity to take leave no doubt interfered with his work performance. Consequently, in the midst of his travail, hospital management imposed new monthly performance standards for workers in Schultz's department. Schultz claimed that the standards held him responsible for completing tasks that could only be finished if he took no FMLA leave. The hospital stuck to its guns, taking the position that workers had to at least meet minimum criteria. Ultimately, Schultz was terminated for failure to meet the standards.
Schultz sued the hospital and his managers for interfering with his FMLA rights, and for intentional infliction of emotional distress. A jury awarded him $750,000 in compensatory damages and $10 million in punitive damages. His two supervisors were held individually liable, in the amount of $450,000 each.
How could this result have been avoided? The proposition that a worker has the responsibility to satisfy minimal performance criteria doubtlessly made perfect sense to the hospital's management. However, a trained manager would understand that when an employee is failing to meet those criteria because of the need to take the kind of leave the FMLA permits, a huge "red flag" goes up, and no action can be taken without a legal analysis. A trained manager would know enough to stop - whether or not it seems to make sense to do so - and have the legal significance of the hospital's next move carefully analyzed.
Knowing When To Keep Your Mouth Shut
Stephen Fakete was an audit consultant for Aetna. At age 56, Fakete was the oldest employee in his group and three years from being eligible for retirement. Fakete asked his supervisor about his future with the company. Fakete alleged that his supervisor said that he did not have a rosy future, because the company was "looking for younger, single people that will work unlimited hours . . .".
Over the next few months, Fakete received written warnings for absences, and his employment was terminated three months before his pension would have vested. Fakete's supervisor claimed that he was fired due to his absences and some discrepancies in his personal expenses. In fact, there may have been enough of a factual basis to justify the termination. However, based on his supervisor's comments, Fakete claimed that, in reality, he was fired on account of age discrimination.
Fakete's claim was dismissed by the trial judge, but an appeals court reinstated his claim, on the basis that the supervisor's comment constituted direct evidence that Fakete's age was in fact a motivating factor in his supervisor's decision to terminate him. Aetna now faces a trial on the claim.
How could the lawsuit have been avoided? Hiring young people (as opposed to equally-qualified older people) on the supposition that they will be willing to work day and night might make economic sense, except for the fact that it is blatantly illegal. To many managers, however, whatever serves the bottom line is fair game, and they don't mind telling an employee about it. That attitude, in addition to making Fakete's case, finds its way into ADA and FMLA claims all the time: as an ostensible motivation tool, managers tell employees that they are going to be passed over for promotion or terminated because the company needs people who don't have disabilities or don't take leave. A trained manager knows better; at the very least, a trained manager knows when to keep his or her mouth shut.
Knowing When Not To Keep Your Mouth Shut
Beverly Rauen worked as a software engineer. Rauen was diagnosed with cancer but, after extensive treatment, she returned to work without restriction. However, she presented her employer with a letter from her doctor stating that it would be beneficial for Rauen to work from home, and Rauen requested permission to do so, even though working from home would not be the best way for her to perform her job duties.
An untrained manager might have dismissed Rauen's request out of hand, without further discussion. However, Rauen's manager understood the potential ADA issues, and the fact that Rauen's request might be characterized as a request for an ADA "accommodation." When that occurs, the law mandates an "interactive process" between the employer and employee, in which they discuss what Rauen really needs and how the employer might be reasonably expected to provide it. Rauen's manager engaged her in a dialogue, however painful that process was, but they were unable to come to an agreement - Rauen stubbornly insisted upon the right to be allowed to work from home whenever she thought she was no longer needed in the office, and her manager refused to allow the accommodation to go that far. Rauen filed suit. Ultimately, her suit was dismissed, and the dismissal was sustained on appeal. The appeals court ruled that Rauen's job required teamwork, interaction and coordination with other employees, and her employer, having engaged in a good faith dialogue to reach a middle ground, was reasonable in insisting on a higher degree of work place attendance than Rauen had insisted upon. Had Rauen's manager failed to recognize the "red flag" inherent in Rauen's request, however, and instead taken the all-too-common "we've made our decision, there is no reasons to talk about it further, go back to work" approach, Rauen's employer would have likely faced a much different, and very expensive result.
Knowledge is power - in this case, the power to avoid lawsuits.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
