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Welcome to The JoyPowered® Workspace Podcast, where we talk about embracing joy in the workplace. I’m Susan White, owner of Susan Tinder White Consulting, an HR consulting practice. With me is my co-host and dear friend JoDee Curtis, owner of Purple Ink, a large HR consulting firm.
Our topic today is “Employment Litigation: Lessons Learned.” My bet, JoDee, is that none of our listeners want to find themselves involved in employee litigation.
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Odds are, if you are a business leader or an HR professional long enough, you may have an applicant, an employee, or former employee feel mistreated at some point. If we aren’t able to work through their concerns, the situation could possibly get to the litigation stage. So in this episode, what we’re going to talk about is, first of all, proactive steps employers can take to prevent situations from getting to litigation.
Also practices employers can follow now that will pay off later if a complaint is filed.
And finally, we hope to get some insights on the employment litigation process for listeners who have never had the pleasure. So in order to do this, we’ve invited a subject matter expert: Kayla Ernst. Kayla Ernst is an attorney with Ice Miller’s labor and employment group. Kayla’s practice focuses on employment litigation. She represents employers in state and federal courts and before agencies such as the EEOC or the NLRB. Additionally, Kayla advises employers on a broad range of issues, including handling employee complaints, terminations, leaves, and accommodation issues, and she assists employers in the drafting and implementation of employment policies. So welcome, Kayla. We’re very glad to have you.
Thanks for having me.
So, number one question for us is: What type of litigation do you work on, and what type of clients do you represent, broadly speaking?
I represent employers for any type of litigation that is employment related, and that can be a lot of things, but the large majority of cases I work on are single plaintiff cases, so, typically, a current or former employee alleging some type of discrimination or retaliation, that they weren’t paid correctly, really any of those things, and often we get multiple claims in the same lawsuit. Typically, I work mostly in the private employment context and in any type of industry – manufacturing, industry, healthcare, construction, it’s pretty wide ranging. And maybe most relevant to our conversation today, I’ve represented employers who are getting a complaint for the very first time, clients who have experienced a high volume of litigation, and really anywhere in between.
Oh, my gosh, it’s got to keep it interesting. You’ve got a wide variety in your practice.
Yes. And it’s…it’s fun being an employment litigator, because the facts are always interesting. They’re always different. You never know what you’re gonna get. It’s always something new.
That’s a fact.
I bet. And Kayla, can you give us a bit of an overview of the litigation process for an employment law claim? Like, what…what happens?
It’s a lengthy process. So I’ll try to keep this to an overview, but it might be a little bit of a long answer, so I’ll warn you.
So first, before plaintiff can even file a lawsuit in court, there may be an administrative exhaustion requirement. And what that means is that for certain types of claims, employees have to file a complaint with the relevant state or federal agency before that person can file suit in court. So we see that a lot with discrimination or retaliation claims, where someone has to file a charge with the Equal Employment Opportunity Commission before they can go to court and they have to receive a notice of a right to sue from the EEOC before they can file in court. For other types of claims, the plaintiff can skip straight to court. You’ll see that more with wage and hour type claims or failure to pay proper wages. Then once we’re at the lawsuit stage, it starts with the plaintiff filing a complaint. At that point, the defendant, the employer can either file a motion to dismiss, and there’s…might be various grounds for that, it could be a jurisdictional issue, or just that on the basis of the complaint itself, they really haven’t stated a colorable claim. But more often, the defendant is filing an answer and asserting various defenses, so, essentially, answering each of the allegations in the complaint, if they’re denying them, admitting them, that type of thing. At that point, typically, the parties and the court will set deadlines for the case, and the first deadline is probably going to be discovery, because what follows next is a lengthy discovery process that both parties go through. And this is often the most painful part of the litigation early on and requires the most work on the part of the employer. And this is when the parties…it’s kind of the fact finding part of litigation. So this is when the plaintiff can request information and documents from the employer and vice versa. And it’s also when depositions occur, so the parties will take depositions of each other, managers, supervisors, relevant witnesses. And so that’s part of the longer…longer processes of litigation is really that discovery part. And it’s only after discovery is over that you get to kind of the parts of the case where you’re really deciding which way it’s gonna go. At that point, typically, defendants will file a motion for summary judgment. And what that means is that, now that you’ve discovered all these facts, now that you’ve got all the facts out there, even if you take all of the undisputed facts as true, what plaintiff is saying happened, as a matter of law, the employer is entitled to judgment. So that’s something you do before you even get to trial. So I know I’m going over this quickly, but…
It’s very helpful.
So, once you file a motion for summary judgment, if the judge decides that in the employer’s favor on all claims, then the case is dismissed, but the plaintiff can appeal it to a higher court. If the judge decides that some but not all of the claims should be dismissed, then those claims would still go forward to trial. So that’s kind of the broad overview. As you may or may not know, going to trial rarely actually happens.
Yeah, I was gonna ask you, do you have a percentage from how many of the cases or the clients that you deal with does it make it through all of those steps and you actually sit in front of a judge or jury?
So for me, in my personal experience, 0% have made it.
Yeah, I’ve seen…and that’s…that’s not uncommon. I’ve seen statistics that over 90% do not make it to trial, employment discrimination cases, because the parties settle or it gets decided on summary judgment, which is that process I just…just described, so.
Amazing. We often hear that the cost of going to trial is so expensive that employers have to do a cost benefit analysis. Do we go ahead and settle, even if we feel like we’re right, as opposed to spending the fee that, you know, the attorney fees and all the work and time of our executives and our HR people trying to defend something?
Yeah, it’s a hard decision to make, because, you know, employers often feel very strongly in their defense, and they don’t want to settle, because it feels like they’re admitting something. But it really just comes down to a business decision, because some employers can do everything right, and they can get complaints filed against them, and they can really save the financial burden of legal costs and also, you know, other administrative, emotional burdens. It can really take a toll, litigation can.
Absolutely. And can I ask this… Like, of the people that – I guess they’re plaintiffs, who brought forth the case, how often is it that they’re represented by attorneys that are doing it on contingency? Or is that…is that very common? Or are these folks actually paying out of pocket per hour, just like the…usually the employer is doing?
I would say, the majority of cases are on a contingency fee basis. We don’t always know that for sure, but it seems to come out that way for the cases that we do settle because of the portion that goes to their attorney.
Yeah, which means, for any of our listeners, which, most of you, I’m sure, know, it means that if the plaintiff wins, then their attorney’s going to get paid. And if they don’t win, they don’t get paid. Or do you…do sometimes the employers, as part of the agreement, just say, “we’ll go ahead and pay the attorney fees”? Or how does that work? Is that sometimes part of the agreement?
Sure. So I think – and…and I have to…I’m not a plaintiff’s attorney, so I know it’s speculating a little, but – I think there’s typically some type of retainer that just to get the plaintiff’s attorney to represent you and things like deposition costs, the plaintiff might have to – some of the cost stuff, not just the attorney work – they might have to put up some of that cost. So it does play into the settlement amount, because, you know, once the plaintiff’s attorneys have invested some time in these cases, if they let this case settle for such a low amount, they’re getting a really low amount, so they might do that if they figure out it’s a really bad case, or they might keep pushing it so they can get a little bit more.
Interesting. Having been an HR person on the employer side, as litigation would emerge, it was like, oh, my gosh, all of our time and resources being spent. And the plaintiff, we assumed, may have had an attorney – just by reputation – on contingency. It felt like they had nothing to lose and we had everything to lose. But, you know, I’m sure it works out in the end. And I…. The good news is it makes the opportunity for employees that they feel like they were not treated fairly to have an avenue.
Yeah, it’s kind of unavoidable in terms of how costs work out, and a lot of plaintiffs just can’t afford an hourly rate, is what it…what it comes down to.
And Kayla, we hope all employers are compliant with the law, but are there other steps employers can take to avoid litigation?
Yes. So, as I mentioned, sometimes employers can do everything right and they could still get sued. And to some extent, employment litigation is part of doing business. But of course, following the law is important, so updating policies, investing in training for managers and supervisors goes a long way. But there are other things outside of the law that can help avoid litigation down the road, and it can really start at the front end with hiring, really investing in your hiring and recruiting and finding the right person. I know that’s easier said than done, because at the end of the day, sometimes there’s a job to fill and you know, an employer has to find someone to fill the job. If you find the right person to start with that’s a good fit, it’s less likely that that employment relationship is going to break down or there’s going to be performance issues. And I think a lot of it boils down to just communication. When I first started practicing, it was mind boggling to me, quite honestly, that some of these plaintiffs were bringing these types of lawsuits, because I just, like…I couldn’t see where the discrimination was or where they were getting this. So it was easy for me to jump to conclusions that, you know, the plaintiffs must know what they’re doing. They don’t have any evidence, and they’re just trying to get money from the company. And I’m not saying there aren’t plaintiffs like that. But kind of as I went along, I learned that there are a lot of plaintiffs that do genuinely feel they were discriminated against, and a lot of that might have been due to a breakdown in communication between the company the employees. So somewhere along the way, there was that breakdown, right? So if an employee’s performance reviews are positive, or even satisfactory, and then they get terminated for reasons that aren’t entirely clear to them, they may very well – and I’ve seen this happen, it becomes clear, when you take their deposition, they jumped to the conclusion about why they were fired, if they were the only person in a protected class in their group that got fired, and no one else did. I mean, I understand. That’s an easy assumption to make. So it’s really about supervisors and managers having those hard conversations about performance issues when they happen and in addition to making decisions for lawful reasons, also communicating the reason for why a certain adverse action’s being taken.
I really believe that if people in the workplace really communicated very, very well, they would not need us HR people, because communication is…is…really can get broken down. And I can see, unfortunately, sometimes it does lead to litigation. So Kayla, any words of wisdom for the business leaders that are listening or HR professionals, anything that you would give us as advice that’s practical or tactical?
So I’m stealing this concept from my colleague, Mike Tooley. He’s been an employment counselor for over 30 years, and he talks about it in terms of workplace wellness, so I’m stealing this from him. And that is, it comes down to employee morale, having a healthy workplace. So thinking about it this way: How many of us strive to have healthy lifestyles, to increase our quality of life, we take the steps to reduce chances of health problems or painful surgeries down the road. And so, you know, in order to survive, we drink water, we sleep, we eat food, but we also make a lot of other healthy choices to take care of ourselves. So thinking about the workplace that…that way, too, is…is helpful. Workplace wellness. So there’s various steps that employers can take to promote a healthy workplace where employees feel engaged, like they’re treated fairly, they feel safe. And so the painful surgery down the road would be litigation in this scenario. But thinking about it holistically and that, you know, it’s the unhappy employees that are bringing complaints. So.
That’s great advice. I love the analogy there. And Kayla, how can our listeners reach out to you if they are interested in engaging you or talking about some of their litigation concerns?
Well, they can email me. My email is Kayla dot Ernst at Ice Miller dot com. If you go to Ice Miller’s website, you can probably easily find me. And my phone number there is 317-236-2411. Employment litigation is something I’m very passionate about. I know it’s not the most fun for employers, but I really like being their advocate in these scenarios and making a hard situation less difficult, so happy to always discuss any of these issues.
That’s great. And we’ll put your contact information in our show notes for this episode, so listeners can find you as easy as possible. Well, thank you so much for coming, Kayla.
Thank you both.
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Susan, we have a listener question from a listener in Indiana. They said, “One of the goals our leadership team gave me for this year is to create a succession planning process to ensure we have successors ready to replace everyone in our C-suite. I don’t know where to begin. For a couple of the roles, there are internal candidates who I think are natural fits, but for the rest of them, I don’t see anyone as possibilities.”
Yes, I would say that this question comes up a lot in my consulting practices with businesses who…they’ve just grown and grown, and yet, they’ve really not done anything really, very strategically or intentionally about building a bench of successors. So we’ve done a couple of podcasts on this topic, both of them in 2017. The first one is called “The Importance of Succession Planning,” and we really talked about the why you want to do it, and maybe the how you want to do it. And then we had a kind of an encore presentation where we added interviews with different business leaders who have been building succession plans themselves to get some real practical advice, and that one we launched November 20 of 2017. So I encourage you to go back and take a listen to those. But for anyone who is with us, perhaps, for the first time today, I would think…. If you’re thinking about how do we start succession planning, I would probably think about: Do I want to do it myself or do I want to bring in a consultant? Depending on your scale, the scope of what you need to do, and really how other…how busy you are otherwise, I think it’s going to help drive that decision. But if I was to come in and help you or if you were going to do it on your own, I would recommend starting with determining: What are the leadership behavioral competencies that anybody at your senior level, or in your case the C-suite, what do they need to have? What’s universal? What are those behavioral competencies that if you’re going to be at this table, you need to really have command of? Then I would, for the critical roles in the organization that you really want to have succession plans set up for, probably everyone in your C-suite, I would determine the technical competencies that are unique to each of those roles. And there’s lots of ways you can do this, which certainly we go into in the other podcasts. But once you have those technical and behavioral leadership competencies designed and developed, then you want to think about: Who’s the pool of potential internal candidates, in the short term and in the long term? Because succession planning really is for the long term. So you may have people that are ready in the next 18 months, but you may have others that are…maybe their horizon is closer to four or five years. I would try to incorporate all of that thinking into your succession planning so you have a deep bench that might be a little bit longer than the next couple of years. And then you need to really assess all of the internal candidates against those leadership and technical competencies that you have developed. As a leadership team, you’re then going to talk it through and you’re going to determine who are the most viable candidates and build a timeline. I would then think about each of those candidates. What are their strengths? What are their weaknesses? Maybe they’re not, you know, at the level that they are ready right away for some of the technical competencies or even the leadership competencies, but what are the things, experiences we can give them to get them ready? What are the opportunities that we really need to do some real strong development on? So with that, your…part of your succession plan is really building development plans for individuals. And then probably most importantly is not to just do it once, put it on a shelf, and forget about it. You need to be working those development plans. At least annually, you need to update, sit down, have a conversation with your executive management team. Are we really developing the people? Are they progressing, the people that we think are going to be viable future successors, or have some of them left, or is there new emerging talent that might be even better qualified? So, it’s an ongoing process. Once you start it, you really want to commit that it’s going to be part of your talent strategy.
Wow. Great advice, Susan.
Alright, it’s time for in the news. FlexJobs did a survey of 2,181 pandemic remote employees between March 17 and April 5, 2021 asking their preferences regarding returning to their company offices post-pandemic. The results really surprised me, JoDee. 65% of those respondents want to remain as remote employees, 33% prefer a hybrid model, and only 2% in the survey want to return to the office full time.
Wow. 2%! That’s incredible.
What could be alarming even more for employers and HR professionals who are counting on a return to everyone back into the workplace is that 58% said they would definitely look for a new job instead of returning to a company worksite full time. 31% said they weren’t sure if they would go back in. And 11% said remote work isn’t a deal breaker, so they will comply. Pretty small compliance numbers.
So JoDee, why don’t you share the reasons the respondents said they prefer remote work?
So 84% said they liked not commuting, and 75% cited cost savings, which I think we’ve all experienced, so I get it.
Absolutely. I bought a lot more tops but no pants in this virtual world. Right? The reasons that were given by respondents against working remotely, which we know is a very small number, but the reasons they cited as they were against working remotely full time: 35% said the inability to unplug. Work is always with you. 28%, distractions at home. And 28% also said technology problems.
Yeah, all understandable.
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