Six Ways To Get Yourself Sued

As an employment lawyer, I have two recurring nightmares.

    In the first, I am at the courthouse to try an employment-discrimination case that I know I cannot lose. I’ve got good facts, good witnesses, good law, and the judge acted as if she liked me at the pretrial conference.

    This is going to be a slam dunk, a piece of cake. As I sit at counsel table, I swivel in my chair to view the potential jury panel. Uh-oh. The jurors include my ex-wife, her parents, several former law partners and the airline ticket agent I yelled at in 1989.

    My client looks on in disbelief as I pull out my checkbook and write a personal check to the plaintiff for the full amount of his claim.

    “This one’s on me,” I tell my client. Then I wake up in a cold sweat. The only way I can get back to sleep is to count–like sheep–the zeros on the check I’ve written.

    My second nightmare is as painful as the first. I dream I am corporate counsel for a large manufacturer. We’re a good company, and profitable, but to compete in today’s economy, we run a pretty tight ship. One morning, the company president calls me.

    “I just got a voice mail from my secretary, Laura. She’s been off work for nearly two months because of her carpal tunnel problems, but now her doctor says she can come back to work for a few hours every day if we redesign her workstation.”

    “Great,” I say. “We’ve missed Laura.”

    “No, we haven’t,” says the president. “Laura was always a pain in the keister, and I haven’t missed her a bit. I like the temporary secretary better. And what I realized while Laura has been gone is that she didn’t work very hard and was overpaid for what she did. She’s just gaming the system,” he continues.

    “I want you to call Laura and tell her we can’t use her. She’s fired. Then we can hire the temp, and Laura can sit home and collect unemployment for a while.”

    I’ve never made it past this point in the dream; I just sit up straight and scream. For an employment lawyer, a return-to-work situation like this is scarier than my other nightmare.

    In real life, these situations occur more frequently than any manager would like to admit. Very recently, a jury in Colorado awarded more than $8 million to a plaintiff who was not allowed to return to work several years after recovering from a brain aneurysm. And the company had to pay the plaintiff’s attorneys’ fees and costs.

    Employers that have been through these return-to-work situations can testify that they are the quicksand of the workplace desert. With no visible solid ground, the slightest misstep can be fatal.

    The array of laws from which “Laura” can choose to sue her employer is vast. Mr. President, consider the following before you hand Laura her final paycheck:

    The Americans With Disabilities Act. The ADA prohibits adverse job action against an employee who is able to perform the essential functions of a job with reasonable accommodation. Depending on the job’s “essential functions,” a redesigned workstation, reduced hours or intermittent leave may constitute a reasonable accommodation.

    If Laura’s requested accommodations are reasonable and won’t break the bank, the president has to back off and let her return to work.

    Family and Medical Leave Act. The FMLA protects employees from an employer’s interference with requested leave and retaliation for exercising FMLA rights. A valid FMLA leave requires the employer to reinstate a returning employee to his previous job.

    Employees who exercise their right to sue for an FMLA violation may also sue the manager who made the decision to terminate them.

    In Laura’s case, the president’s time would be well spent in evaluating her requested return to the workplace in the FMLA context to ensure that Laura’s federally protected FMLA rights are not violated. If Laura’s leave is a valid FMLA leave, she is entitled to her previous job regardless of how poor an employee she was before she took leave.

    Workers’ compensation. Although workers’ compensation laws vary from state to state, there is one constant. If an employee is unable to work because of a workplace injury, he will receive a substantial increase in workers’ compensation benefits.

    This may fall into the “that’s the least of our worries” category in Laura’s situation, but workers’ compensation settlements can result in long-term increases in insurance premiums or significant expenditures for companies that are self-insured.

    Wrongful discharge. In many states, an employee cannot be terminated because she files a workers’ compensation claim. The tort of “retaliatory discharge” allows an employee to recover her lost wages, money damages for humiliation, punitive damages to punish the wayward employer and, in some cases, attorneys’ fees.

    The president’s decision to fire Laura because he believes she is “gaming the system” will give the term “game playing” a whole new meaning for the company coffers, both in dollars spent and in lost time. And chances are that if Laura knows how to “game” the workers’ compensation system, she’s also pretty adept at “gaming” the judicial system as well.

    Breach of implied contract. In some states, an employee has a cause of action against her employer if the employer violates its own internal policies on how employees are to be treated. Employee-handbook policies for workers’ compensation, paid time off, sick leave and other absences can be used effectively against a company at trial, especially if the company violated the policy in terminating an employee who, by policy, had additional time off available.

    Watching a plaintiff’s attorney wave the offending policy under the nose of the human resources director at trial is akin to watching someone–the employer–get beat up with his own stick. The president must remember that he is in a chess game, not a boxing match, and must think carefully before making a move.

    A careful review of the handbook and the company’s policies regarding leave and return to work is definitely in order. Taking the time to comply with company policies is also probably a good idea for the president.

    Written contract. Returning an employee to work may also involve following the terms of a collective-bargaining agreement, a written employment contract, or some other agreement between the employer and the employee.

    The president is smart not to break the terms of any such agreement.

    I know there are others. But listing them would only make my nightmare worse. And explaining each of these laws and the employee’s rights and protections to a company president hell-bent on firing an employee is overwhelming.

    On my best nights, I can get back to sleep by dreaming of giving the under performing employee her job back. It doesn’t matter that she doesn’t do the job very well.

    On my worst nights, I visualize firing Laura, then stare at the ceiling and count, like sheep, the number of days until the statute of limitations runs out for Laura to file her lawsuit.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, November 2004, pp. 16-18 — Subscribe Now!