Employment and Labor Insider - Legalese Is Not Spoken Here

The Chinese New Year is almost upon us. In honor of the Year of the Dragon, and in fond farewell to bilingual Jon Huntsman, who announced that he was withdrawing from the presidential race (hmm . . . speaking Mandarin in a Republican debate? . . . not sure that's a choice I'd have made), we have enough employment and HR blog posts to get you through the entire new year's season without repeating once!

(CAUTION - last I heard, the anti-SOPA blackout is still scheduled to occur on Wednesday even though the bill has been severely stalled in the House of Representatives, so if the links don't work on Wednesday, we hope you will try again on Thursday when everyone is back up.)

OK, on with the festivities! Thanks to Wikipedia for the information about the Chinese New Year and the quotes.

Preliminaries

Before New Year's Day, Chinese families thoroughly clean their houses -- not only to be ready for celebrations, but also to sweep away the bad luck from the prior year and make the house ready for good luck in the new year. "Brooms and dust pans are put away on the first day so that the newly arrived good luck cannot be swept away."

Mark Toth of The Manpower Group Employment Blawg recommends some "housecleaning" with employer performance evaluations, in "Evaluation Evaluation" and "Performance Evaluation Worst Practices."

Day One: Respect Your Elders

The Chinese have a number of traditions on New Year's Day, but the most universal is to honor one's elders. Chinese families "visit the oldest and most senior members of their extended families" on this day.

Philip Miles of Lawffice Space has a good post about an older applicant who was rejected for being "overqualified" -- is "Too Smart to Hire?" just code for age discrimination?

Also, if you represent family businesses, you will love Adam Whitney's "You May Be Damned if You Work With Family Members."

Day Two: Show Me the Money!

On the second day of the Chinese new year season, families celebrate the birthday of the God of Wealth. "Business people of the Cantonese dialect group will hold a 'Hoi Nin' prayer to start their business" on this day "so they will be blessed with good luck and prosperity."

Prayer at work? Jessica Miller Merrill of Blogging4jobs has sparked lively comments and is sure to generate debate with her "God Has No Place in the Workplace." (For another view, please see my "Religion in the Workplace: 5 Devilish Employer Mistakes," and scroll to "Religion is a topic of which we must never speak, ever ever ever ever.")

Day Three: Do Not Leave the House Today*.

*Pee-Wee Herman's fortune on the day his bike was stolen.

The third day of the season is the day of "the God of Blazing Wrath." Chinese families are advised to stay home and not visit relatives on this day.

While you're holed up indoors, be sure to visit Ari Rosenstein's CPEhr's Small Biz HR Blog, which has a free downloadable "2012 Human Resources Updates: What Employers Need to Know." Cuddle up next to a blazing fire and read his guide while you stay out of the way of the Blazing Wrath.

Day Four: Greedy Heathens Go Back to Work. (kidding!)

Those who celebrate new year's for only a couple of days return to work on this day. Everyone else continues the festivities.

Speaking of attendance at work, Jon Hyman of the Ohio Employer's Law Blog has a great post entitled "Resolve This Year to Properly Handle No-Fault Attendance Policies." This is a big issue, especially considering the EEOC's $20MM settlement with Verizon, in which the agency claimed that the company's no-fault attendance policy violated the Americans with Disabilities Act.

Day Five: Firecrackers and Dumplings!

The fifth day, Po Wu, is the day for pot stickers (jiao zi) and shooting off firecrackers to get the good attention and intercession of Guan Yu. Guan Yu was a general in the Han Dynasty and is now worshipped as a Chinese god of war, representing "loyalty, truth, strength, and justice."

John Holmquist of Michigan Employment Law Connection has an interesting post about an employer who tried to go on the offensive by filing a declaratory judgment action before an ex-employee could file suit alleging disability discrimination based on his HIV status.

Day Six: Back to the Grindstone, if You're Taiwanese.

The Taiwanese have to go back to work today.

No doubt they'll be tweeting, Facebooking, and linking in. Eric Meyer of The Employer Handbook has a most-interesting post on "Are employees' LinkedIn contacts considered your trade secrets?"

And check out Dawn Lomer of i-Sight Blog, who advises us on "Avoiding the Dangers of Social Media Background Checks."

Day Seven: We're Not Getting Any Younger.

This is renri, the birthday of the common man. According to Chinese tradition, everyone is a year older as of this day.

Since we're all getting older, you may enjoy two blasts from the past on the subject of age discrimination: Donna Ballman's "Nine Signs of Age Discrimination" and my "Nine Signs That You'll Lose Your Age Discrimination Case."

Day Eight: Everybody Back to Work! (And a Nice Custom)

Everyone should be back at work by now, but Chinese employers offer a lunch or dinner for their employees, thanking them for the good work they've done in the past year.

And while we're on the subject of good employers, be sure to check out "How NOT to Go Out of Business" on Tim Eavenson's Current Employment blog and Andrea Paris's excellent Q&A on paying commissions in compliance with California law.

Days Nine and Ten: Thanks to the Jade Emperor of Heaven

On these days, the Chinese offer prayer and thanks to the Jade Emperor of Heaven in the Taoist pantheon.

While giving thanks, you'll also be thankful for Joni Kletter's excellent summary of recent cases interpreting the Americans with Disabilities Act Amendments Act.

Also, see Robert Fitzpatrick's "Observations Regarding the Latest Supreme Court Decisions," which includes his take on the recent Hosanna-Tabor decision, as well as five other noteworthy cases relevant to employment law.

And George Lenard of George's Employment Blawg takes a deep dive into Hosanna-Tabor.

Days Eleven and Twelve: Holiday Peters Out.

More celebratory dinners on days 11 and 12. Not much else, according to Wikipedia.

Since it's a quiet couple of days, this is a good opportunity to catch up on some excellent posts. Donna Ballman of Screw You Guys, I'm Going Home has a must-read on one-sided confidentiality agreements, and Dan Schwartz of the Connecticut Employment Law Blog has another must-read on employment rights of smokers.

Day Thirteen: "Ugh, I don't feel so good . . ."

On Day Thirteen the Chinese are all partied out. They purge their systems by eating a pure vegetarian diet on this day, which is also devoted to Guan Yu.

While we're sobering up and fasting, it's a good time to read Sharlyn Lauby's "Losing Your Driver's License Can Impact Your Career," in which she interviews Heather Bussing of HR Examiner.

You may also enjoy some a cold glass of milk and some "Employment Law Leftovers" if you can't face what's up for the new year just yet.

Day Fourteen: ????

Wikipedia makes no reference to this day. I guess nothing happens?

Since nothing's going on, this would be a good time to read my excruciating "2011 labor and employment law year in review." Guaranteed to have you begging for mercy!

Day Fifteen: Grand Finale.

The fifteenth and last day of the Chinese New Year is the Yuan Xiao Festival (aka the "Lantern Festival"). The candles and lanterns are lit to guide the good spirits to one's home. In Malaysia and Singapore, traditions similar to Valentine's Day are celebrated.

While we're on the subject of romance and unrequited love, be sure to read Gary Gwilliam's "Reasons to Pursue Emotional Distress Damages in Employment Cases."

Our "host with the most" in February will be John Holmquist. Please join us then, and happy Chinese New Year!

It could be that the purpose of your life is only to serve as a warning to others.

In any event, that must be what the American Medical Association is thinking. The organization took it on the chin this week in a case involving the Family and Medical Leave Act.

The case is well worth a post-mortem because of what it teaches employers about "causation" in retaliation and protected concerted activity cases.

Names have been changed to protect the allegedly* guilty.

*Even though the AMA lost a battle with this decision, it has not lost the war. The court found that summary judgment should not have been granted, but that means that the case will be tried before a jury. A jury might side with the plaintiff, but it might also side with the AMA.

Here's what happened:

The AMA, like just about every other employer, suffered from the economic downturn in 2008, and a manager -- we'll call him Dr. Pepper -- was told to reduce costs. Eventually it was determined that he was going to have to eliminate one position.

(One more disclaimer before I go on. Despite my fictional "doctor" names, none of the individuals actually involved in this case were physicians, as far as I can tell.)

Dr. Pepper chose an individual to eliminate -- we'll call him Dr. Seuss -- and sent an email to his boss informing her that he had chosen Seuss, and the rationale for selecting him. The gist of the rationale was that most of Seuss's work was going away anyway, so it made the most sense to eliminate his position.

Dr. Pepper's boss -- we'll call her Dr. Scholl -- sent him a reply asking whether the plaintiff, Dr. Dre, should have been eliminated along with Seuss. Pepper replied no, because he did not think it would be wise to eliminate any more positions than absolutely necessary. Scholl apparently was cool with this answer. This all happened in late October 2008.

So, we get to November 20 at a conference. Dr. Dre was there with Dr. Pepper. Dre told Pepper that he was going to have surgery on his knee in January, would be out of work for a few weeks, and was going to apply for short-term disability.

I hope you've stayed with me, because now it gets interesting.

Ten days after this conversation, on Sunday night of Thanksgiving weekend, Dr. Pepper sent an email to Dr. Scholl, apologizing for his "11th hour" change in decision, and telling her that he now wanted to eliminate Dr. Dre instead of Dr. Seuss. Among other things, Pepper said that they could more easily weather the loss of Dre because they were preparing for him to go out on disability anyway.

Poor Dr. Dre was terminated in January, and he hired a lawyer, and his lawyer sent a nasty letter to the AMA in February. The AMA's in-house attorney informed the organization's HR representative about the threatened litigation. We'll call the HR rep Dr. Bombay. (Nowadays, should that be Dr. Mumbai?)

It turns out that Dr. Bombay and Dr. Pepper had discussed the decision to terminate Dr. Dre back in November and that Bombay had taken handwritten notes. Upon learning of the threatened litigation the following February, Bombay typed up his notes and shredded his original handwritten notes, and he dated the typed notes "November 25, 2008," even though it was now February 2009.

Hmmmmm! Verrrrrrry interesting.

But, wait! There's more!

It turned out that Dr. Pepper's calendar didn't show a meeting with Dr. Bombay on November 25, and Pepper didn't remember having had one. Even worse, he testified that he didn't decide to eliminate Dr. Dre until after that date. All this made Bombay's backdating look even more dishonest.

In May 2009, the AMA eliminated about 100 more employees, including Dr. Seuss, the person Dr. Pepper had originally planned to eliminate. Apparently this was enough for a district court to grant summary judgment to the AMA. (I know! I'm not sure how that happened, either.)

But the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from federal courts in Illinois, Indiana, and Wisconsin, reversed, which means that Dr. Dre will be allowed to take his FMLA "interference" and retaliation claims* to trial.

*FMLA "interference" is simply a denial of FMLA leave to someone who is entitled to it, or doing something to discourage the individual from taking FMLA leave. It does not require a bad motive on the part of the employer and can even be based on a mistake or misunderstanding. In the case of FMLA retaliation, the employer "punishes" the employee for requesting or taking FMLA leave. Proof of the employer's unlawful motive is required for a retaliation claim.

So, let's make the usual Y-shaped incision and see what lessons can we learn from our "autopsy" of this case.

1. Timing is really, really important. On October 28, Dr. Pepper told his boss that Seuss should be eliminated, and he gave a good reason for the selection. He also told her that he thought it would be unwise to eliminate anyone else, and specifically Dre. On November 20, Dre informed Pepper that he would need to take FMLA leave in January. Within 10 days, Pepper reversed his RIF decision and recommended that Dre be eliminated instead of Seuss. Whatever Dr. Pepper's actual motive, this timing looks quite damning, doesn't it? The Seventh Circuit thought so, too.

2. Mentioning the FMLA leave in the poorly-timed email was not cool. In Dr. Pepper's "11th-hour" email, he said that the department could adjust easily to Dr. Dre's elimination because they were already preparing for his medical leave. Yes, I know there could be an innocent explanation for this: Pepper wasn't giving that as his motivation, he was simply giving his opinion about the effect of the decision. But this statement, especially when considered along with everything else, helps to make it look like the FMLA leave request was the reason for the selection.

3. Backdating documents is really not cool. Here's what I always tell clients: It's fine to document an event after the fact, even long after the fact, and I strongly recommend it if you didn't document at the time. But never, ever, ever, ever, ever, ever, ever in a million zillion years backdate it -- unless you are sure that the backdating is "transparent" (for example, drawing a line through the current date so that the original date is still visible, or saying something like "Created 10/22/11 based on event that occurred 6/1/11."). Any other kind of backdating looks dishonest and, as the Seventh Circuit noted, is more evidence that the employer may have had an unlawful motive and was trying to cover its tracks.

4. Destroying handwritten notes upon learning of threatened litigation (aka "spoliation") is the uncoolest of all. If you're not expecting litigation and don't have reason to expect it, then you can create a "draft" document and destroy the draft after creating the "final" version. But once you either become aware of litigation or have reason to expect it, your right to do this is gone. You must save all of your relevant documentation. Dr. Bombay, the HR representative who destroyed his handwritten notes after learning of the threat of a lawsuit, committed "spoliation," whether he realized it was wrong or not. As a result, when the case goes to trial, the judge may instruct the jury that the notes would have been favorable to Dr. Dre's case.

5. To err is human: be willing to cut your losses if you messed up, or if it will look like you messed up even if you didn't. In this case, it appears that Dr. Dre would have survived at the AMA only about 5 more months if Pepper had stuck with his original plan to eliminate Seuss in January. The undisputed evidence showed that the AMA had a massive reduction in May, and it probably would have included Dre if he'd still been around. Damages under the FMLA are limited to so-called "make-whole" relief (essentially, back pay, back benefits, costs and attorneys' fees, possibly doubled in the case of a willful violation). Even assuming the AMA might have been on the hook for a "willful" violation, it probably had a strong argument that it would not have owed much more than 10 months' pay to Dre, plus his costs and fees. Given that, it might have made economic sense for the AMA to have settled the case in mediation. (Please note that mediations are confidential, so it is very possible that the AMA tried to do just that.)

I was tempted to end this post with a rap about Dr. Dre, the AMA, the FMLA, the month of May, Dr. Bombay, and "anyway." Then I thought better of it. You're welcome.

Human Resources and in-house counsel, please consider this a legal "consumer report." Remember - we offer a "no legalese" guarantee, or your money back!

My fellow employment lawyers, is that Rule 12(b)(6) motion really necessary?

I've spent this week reviewing federal and state labor and employment law decisions for a Bar Association program I'll be presenting at the end of the month. I have been astounded at the number of motions to dismiss that don't seem to have achieved anything for the employer except an unnecessary bill.

So, for you employers out there, here is a summary of the two main types of pretrial dismissals, including the advantages and disadvantages, compared with trial. 

I'll follow up with another post on why I think the 12(b)(6) motion to dismiss is often a ripoff* for the client.

*Please realize that I am not accusing any lawyer or firm of dishonesty or unethical behavior. When I say "ripoff," I mean it in the sense that parking garage fees in New York City are a ripoff. In other words, too much for what you get, even if legal and fully disclosed in advance.

There are generally two opportunities for a defendant to get a lawsuit thrown out before it goes to trial. (I'm oversimplifying a bit.) The earliest opportunity comes right after the lawsuit is filed. This early motion to dismiss is called a "Rule 12(b)(6)" motion because that is the name of the Rule of Civil Procedure that allows defendants to do this. From now on, I'll refer to it as a "motion to dismiss."

Nice Work If You Can Get It - the Motion to Dismiss

What it is. The gist of a motion to dismiss is this: "Your honor, even if everything the plaintiff says in the lawsuit is true, he has not accused our client of doing anything for which the law provides a remedy."

Here's an example. I sue you, and in my lawsuit, I accuse you of giving me a dirty look. Maybe you didn't give me a dirty look, or maybe you did. Even if you did, I can't sue you for that. (At least, not this week.) So, your lawyer would file a motion to dismiss my lawsuit on the ground that I had "failed to state a claim for which relief may be granted."

The upside. If you win (and you would, in this extreme example), the case is over* and you got out of it for a relative song because you didn't have to go through discovery and motions and a big trial.  :-)

*Subject to the plaintiff's right of appeal.

The downside. Because a motion to dismiss is filed so early, the court has to accept everything the plaintiff says as true and pretty much has to give the plaintiff the benefit of the doubt on everything. If the statute of limitations hasn't run out, and maybe even if it has, the judge will give the plaintiff "leave to amend," which lets the plaintiff rewrite the lawsuit so that it states a claim. Usually the judge will dismiss some of the plaintiff's claims but leave others in the case, which means that the motion didn't end the lawsuit. If the defendant loses on its motion to dismiss, in whole or in part, the case goes back for litigation, including discovery, summary judgment, and trial, with all the associated time, expense, and hassle. So the defendant may have incurred significant legal fees and caused delay for very little, if any, benefit.  :-(

Summary Judgment - the Old Reliable

What it is. A motion for summary judgment is filed later, after both sides have filed their pleadings with the court, and after the parties have engaged in discovery (depositions, written questions and requests for documents, and that kind of stuff).

Here's an example. I sue you and say you discriminated against me because I'm an over-40 female. Age and sex discrimination are clearly illegal, so my lawsuit has alleged some illegal conduct on your part, unlike my "dirty look" lawsuit. (A little more than that may be required, but that's a topic for another post.) You take my deposition, and in my deposition I admit that my boss asked me to catch up on my filing and that I told him to take a long walk off a short pier but using significantly more colorful language that I can't include in a family blog. I was fired that afternoon for insubordination and abusive language.

You can't say that my lawsuit fails to state a claim because it does, but you can file a motion for summary judgment.

The upside. On a motion for summary judgment, you can present to the court my deposition testimony, your witnesses' testimony, and other evidence to show that "there is no genuine issue of material fact" that I was discharged for a perfectly legitimate reason. The court will still have to side with the "non-moving party" (in this example, me) on any disputed fact, but it can accept undisputed facts that are in your favor, and even your evidence where I said, "I don't know" or "no me recuerdo." The court doesn't make any judgments about who is more "believable."

Your chances of success on summary judgment are dramatically greater than on a motion to dismiss because you can actually tell a little of your side of the story. If you lose, you go on to trial, but if you win, the case is over.* The court will not give the plaintiff a chance to rewrite her lawsuit at this late stage. And the court will frequently throw out the whole enchilada, too, instead of just a few claims.   :-)

*Subject to the plaintiff's right of appeal.

The downside. You have to go through the time, expense and hassle of the discovery process before you file.  :-(

The Dreaded Trial

Aiiiieeeeeeeeeee! Nooooooooooooooooo . . . 

What it is. I assume you know what a "trial" is.

Here's an example. I sue for age and sex discrimination, and you take my deposition. I say that I heard the CEO say, "I do not want any old biddies over 40 working in this company, and I vow with every fiber of my being to get rid of them all, no matter what it takes." The CEO and 50 bishops deny that he ever said this, and they all insist that I was fired for being a mediocre performer. I do indeed have some lackluster performance reviews.

Here we have a major "material fact dispute," right? If I'm telling the truth, the CEO has admitted to age and sex discrimination. If he's he's telling the truth, then he hasn't, and he has every right to fire a mediocre performer, as long as he isn't doing it for an illegal reason.

So, with this fact dispute, the court cannot grant your motion to dismiss, and it can't grant your motion for summary judgment, either. This is what trials are for.

The upside. (Trying hard here!) At trial, you will have the chance to tell your side of the story, including the parts where I disagree with you. The judge or a jury will decide whom they believe.

The downside. At trial, I get to tell my side of the story, including the parts where you disagree with me. The judge or a jury will decide whom they believe. For me (the hypothetical plaintiff), that's ok. If I lose, I'm no worse off than I was before, especially if my lawyer represented me on a contingent fee basis (you don't pay unless we win!). But for you (the defendant employer), a lot is at stake. A trial is a gamble. You have to worry about, not only the facts, but also how I will come across to a jury as well as how your folks will. In this lousy economy, will the jury side with your CEO?

True story - years ago, we had a witness, a genuinely nice guy, who was despised by the jury because he was squinting during his testimony, which made him look dishonest. In fact, he was squinting because he was wearing new "hard" contact lenses. (I told you this was years ago.) At trial, you have to worry about things like this. At summary judgment, you don't because everything is submitted "on paper" (actually, electronically), possibly with some live arguments by the lawyers.

In addition, a trial is the most time-consuming, expensive hassle of them all, even if you win in the end. 

So, now that you've read that, you may be wondering, Then what's so bad about a motion to dismiss, which will give us one more opportunity to avoid trial?

Great question, but a topic for another post. To be continued . . .