Daniel Schwartz, an attorney with the firm Shipman & Goodwin, LLP, is an attorney I have read for a number of years. He has been blogging for 9 years and has consistently produced great content. In a post he did the other day he talked about frivolous, or not so frivolous, lawsuits. I wanted to point out a couple of his points on subjects I have written about before.
At-will is not so at-will
I have told people that they should not hang their hat on the fact that they happen to live in a state where “at-will” in force. Many states will say that they are “at-will” and then offer many reasons why you cannot enforce it. Schwartz says “Frankly, I would have most employers just forget about that phrase ‘at-will employment.’ Yes, it’s needed for offer letters and contracts….But relying on it for your decision-making process is going to lead to disappointment.” He points out, as have I, that the better reason to get rid of someone is a documented, justified business reason, such as poor performance. He says further, the truth is, “Here’s a secret — in any employment discrimination suit, courts are still going to require employers to provide a legitimate, nondiscriminatory reason for the decision.” Make sure you have a genuine nondiscriminatory reason for terminating someone beyond “Just because we can.”
People will lie to you
As I wrote in a post the other day (Don’t be a dupe for someone else’s ill will), supervisors and employee can and will lie to protect their own positions or interests. HR often becomes the dupe for a lying employee. Schwartz writes “..when a lawsuit is brought, consider having outside counsel take a fresh look at the allegations and the employment decision. Sometimes, managers will open up to a third-party and you’ll discover that the rock-solid case you had for an employee’s firing, isn’t so clearcut after all.”
There is a lot of money in nuisance
When an employee goes to an attorney to file a complaint against you it is possible that even if the attorney thinks there may be no merit in the complaining ex-employee’s case they know that companies may be willing to write a settlement check just to get rid of the nuisance. The expenses can add up quickly for thousands or even tens of thousands of dollars. Those darn lawyers want to get paid for working on your behalf, and no one ever has a cheap attorney. In fact you don’t really want to have a cheap attorney. Schwartz says “Frivolous or not, you will still have spent money to defend your decision. Be prepared for this eventuality when making your employment decisions and deciding whether or not to offer severance in exchange for a release.” The lesson is that the better your decision making the easier it becomes to defend for fewer dollars.
Read Daniel Schwartz excellent blog post to learn more about the points I made here in addition information about the law not being rocket science and a great point about fairness. You will be glad you did. Find his blog post here at Maybe That Lawsuit Brought By Your Employee Isn’t So Frivolous.