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If you make these mistakes, you’re headed for court …
The inside scoop from a plaintiff’s attorney

     The number one mistake employers make when faced with an employment complaint is having a "bunker mentality," says Joe Garrison, who has practiced law on behalf of employees for twenty years and is a principal in the New Haven law firm of Garrison Phelan Levin-Epstein Chimes & Richardson, PC. We did something and we’re going to back it at all costs, sometimes even if it’s a decision that was made by a supervisor who’s been a marginal performer—that attitude can be dangerous for an employer, warns Garrison.

     Garrison shared his perspective recently with a group of human resource and legal professionals at CBIA’s Employment Law Update. His firm generally rejects nine out of 10 employees who approach them and Garrison has a reputation for winning, which means that he has a pretty good idea of what makes a good case.

Other warning signs
So what does Garrison look for when he’s evaluating a potential case? He mentioned the following:

  • Differential treatment. Were members of a protected class treated less favorably than non-members?
  • Not paying what an employee has earned. Firing an employee close to the employee’s vesting in something or achieving something he or she’s been working toward, such as stock options, incentive pay, commissions, etc.
  • No notice or warning. Despite employment at will, says Garrison, most people (meaning most potential jurors) think that employers should give some sort of warning before terminating an employee; progressive discipline is an indication of fairness.
  • Abusive or harassing treatment. Garrison noted a case where he got a $150,000 verdict for an employee who had been escorted out of the employer’s premises by security guards; everyone mistakenly thought that the employee had stolen something.
  • Not doing a serious, impartial investigation.

Some final tips
     When an employment related dispute first surfaces, think about mediation, suggests Garrison. It’s a non-binding settlement process that typically runs about $3000, much less than the cost of litigation because it saves attorney’s fees and management time. The fee is split by the parties; they pick a neutral mediator and get a neutral evaluation.

     Also, says Garrison, forget anything you’ve heard about contingency fees. If an employee’s lawyers are working on contingency, it means that they think they have a good case and are going to win more money than if they charge on an hourly basis.

     Finally, think about settling. As anyone who’s been through litigation knows, it can be quite stressful. Everything your human resources staff and managers have done is magnified and scrutinized; everyone loses two or three years to the process. If you have any doubt at all about what happened, advises Garrison, then settle.