No one will ever mistake the Connecticut Legal Conference, run by the Connecticut Bar Association, for, say a glitzy gaming conference. But if you were fortunate to attend, you had the opportunity to hear some pretty good speakers talk about employment law for several hours.
Among the topics were a discussion on the Ellen Pao case, a discussion of the “Obama Effect” on race relations in the workplace, and a recap of other notable employment law cases from the last year.
For me, one of the most interesting discussions came from Wayne Outten – the incoming chair of the ABA Labor & Employment Law Section, and an accomplished plaintiff’s lawyer. His talk focused on the lawyer as “problem-solver” which he said was critical in employment law cases.
He said that he often tells his clients (employees at companies) that self-help is their first best option. It’s something I’ve preached as well. Once you get lawyers involved, you can never de-escalate a situation.
I’ve often preached about how employers need to be “fair” in the decisions. He said that for employees, he advocates the same thing.
But he also pulled back the curtain on the advice he gives to employees too; he plants a seed for employees to use in their negotiations (and again, it’s a well-known device). He suggests that the employee tell the employer that he’s met with an employment lawyer and that lawyer said he or she has a good case, but that the employee is the “reasonable” one and wants to work things out directly with the employer. It’s the veiled threat approach.
For those that haven’t heard Wayne speak before, he also provided a top 10 list that he’s given for many years on the ways for employers to avoid getting sued. Among them:
- Be fair and reasonable in all your dealings with employees. Follow the Golden Rule: Treat every employee the way you would want to be treated — that is, fairly. Treat every employee so as to bring out the best that person has to offer.
- Consider alternative dispute resolution techniques. When the foregoing approaches fail to avert or resolve a particular dispute, consider using such alternative dispute resolution procedures as peer review, early neutral evaluation, mediation and non-binding arbitration. (Use of ADR procedures should always be truly voluntary — not crammed down on employees as a condition of initial or continued employment.)
- Be nice to plaintiffs’ attorneys. When you get a telephone call or letter from a lawyer representing a current or former employee, consider it an opportunity to engage in mutual problem-solving. Consider meeting with the employee and his or her counsel to exchange views on what happened and how the situation might be remedied. Such discussions may avert litigation.
For employers, there’s wisdom in this advice.