The Dialogue — one of the more popular recurring posts — returns for the third time. Does that mean the third time’s the charm? Or is it three strikes and we’re out? In any event, Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, P.C. returns for this installment where an employee-side and employer-side attorney discuss the issues of the day. Today’s topic discusses the lay of the land when an employee files a complaint against his or her current employer. Well, that and Unicorn Frappuccinos….

unicornsNina Pirrotti: It is that time, once again for the two of us to lock horns, I mean engage in a spirited discussion about, how we both help our clients to navigate thorny issues which arise in the workplace.    One such issue is how to advise our clients when an employee has alleged discrimination while she is still employed with the very employer she is accusing of wrongdoing.  Wow.  I feel a knot forming in my stomach just contemplating it!   

There are many complexities inherent in this scenario at each stage, from how the complaint is initially expressed, to the manner in which it is investigated, to whether the employee who complains should stay or go (or something in the middle like a leave of absence) to various resolution options.  In fact, I feel so strongly that employees and employers often botch one or more facets of this fraught situation  that I proposed it as a subject for a panel at NELA’s annual employment conference this June and I will be speaking on that panel!

I think I will start the ball rolling by saying that my biggest fear is that clients who remain working in a hostile work environment often feel so powerless and outraged by their situation that they are vulnerable to doing everything wrong from making more frequent mistakes to lashing out at supervisors or peers or far worse.   I used to save my admonishments about refraining from such behavior for my less sophisticated clients until it became clear that my C-Suite executive clients were just as likely to partake.   Now, no matter who my clients are, a big part of my counseling session revolves around how they should conduct themselves in the workplace.  If anything, I want them to strive even harder to be consummate professionals, above reproach.   My most common refrain is:  Do not arm your employer with a legitimate justification for terminating you!

There is so much to territory to explore here, Dan, but, could you highlight for me one or more of your biggest concerns when a client comes to you and says one of its employees has alleged discrimination or harassment in the workplace?

Dan Schwartz: Locking horns, eh? Perhaps you’ve had one too many Unicorn Frappuccinos (R.I.P.)  from Starbucks.  Alas, I do tend to agree with you that this is one area where rainbows and happy endings are rare.

When I hear about current employees who bring suit against their employers, I tend to think an apt comparison may be the spouse that files for divorce but the couple still has to live in the same house.  It’s awkward.  Everyone is walking on eggshells.

The fact is that one big concern I have for employers in this situation is to avoid a retaliation claim.  You say you encourage employees to be “above reproach” and I wish that were always the case, but sometimes employers will get these types of claims and they’re in the midst of either terminating or disciplining an employee — what then? If they do so after the claim, they’re opening themselves up to a retaliation claim. And we know how nasty those can be.  (Documentation is critical.)

But if it’s a harassment complaint that the employer gets, it typically becomes a real fire drill — drop everything and begin an investigation. That investigation may or may not need your client’s help, Nina. So what do you do in that situation where an investigation pops up?

Nina: Ok – you got me.  I couldn’t resist looking up the Unicorn Frappuccino on Google after my husband assured me you weren’t making it up.  This is how Starbucks describes it:  “Magical flavors start off sweet and fruity transforming to pleasantly sour. Swirl it to reveal a color-changing spectacle of purple and pink.”    It sounds like a liquid nightmare.  Hmmm could the Unicorn Frappucinno’s “magical flavors” be a metaphor for the very type of employer-employee relationships of which we are speaking?! Continue Reading The Dialogue: Workplace Complaints and Happy Endings As Rare As Unicorn Frappuccinos?

From time to time, this blog features unedited interviews with people in the labor and employment arena who may be of interest to Connecticut employers.  Today, I’m very pleased to have Nina Pirrotti address a few questions for the blog.

Nina is an attorney with the lawfirm of Garrison, Levin-Epstein, Chimes, Richardson & Fitzgerald, P.C.  A graduate of Wesleyan University and Yale Law School, Nina joined that lawfirm in 2007, but has years of experience both at a major lawfirm and as a prosecutor in New York City.  Now, she mainly represents employees in all types of employment litigation matters; as such, companies in Connecticut may be on the opposing side of Nina and her firm at some point.

But of greater interest may be that she is the current President of the Connecticut Employment Lawyers Association (which she will tell us more about).   I will be speaking to that group next week on the management-side perspectives to employment litigation.  My sincere thanks to Nina for the invitation to speak to that group and to answer a few questions here for the reader.

1. Thanks for your time Nina. First off, can you tell us a little more about the organization that you chair?

I am the President of the Connecticut Employment Lawyer’s Association (“CT- NELA”), an affiliate of the National Employment Association “NELA”). Our state chapter’s interests are aligned with NELA: we are devoted to protecting and advancing the rights of employees in the workplace. CELA facilitates that goal in a number of ways. We prepare amicus briefs for cases in which a proper interpretation of the law may be critical to employee rights, have an active list serv, well-attended monthly meetings featuring speakers and presentations on a variety of topics relevant to the work that we do, and are about to launch a new website that will contain a number of resources helpful to our members and employees alike. The new website address, which should be up and running by mid October, is:  [Ed. note: It is now up.]

2. As an attorney who mainly represents employees, are their common misconceptions about the work you do by companies? Or, in other words, what should companies know about the work you do?

Companies should know that my firm (and, I would suspect, most other plaintiffs’ employment law firms) scrutinizes every prospective client’s case that comes through our office, pick only a select few prospective clients to interview and agree to represent even fewer. By the time we have decided to represent a client, we have reached an informed decision that he/she has a viable case.

3. What is a common mistake or two that you see companies make when dealing with their employees?

One of the most common mistakes I see companies make is failing to engage the employee in an interactive dialogue in order to assess whether or not they can reasonably accommodate the employee’s disability.

4. In terms of dealing with employees that are being laid off, are their complaints you’ve heard from your clients about the way the employer treated him or her that could’ve been avoided or improved upon?

I had a client whose employer called her the day after she gave birth to inform her that she was being laid off. She received the news as she lay in her hospital bed. I would advise employers to ensure they use neutral criteria in their lay off decisions and, once the decision is made, convey it with compassion. I would also recommend that employers do everything in their power to facilitate the employee’s transition to another job. This includes a personalized letter of reference and, if economically feasible, outplacement counseling.

5. For separation agreements, what are some terms that you advise your clients to seek in the agreement? Are there any provisions that employers try to put in that you advise are "deal-breakers" for your clients?

The focus of separation agreements is usually on determining the appropriate amount of compensation and that figure varies depending upon a variety of factors such as the market, employment history and reason for termination. We look at all of those factors and seek to maximize the amount paid. We frown upon liquidated damages clauses and attempts to introduce covenants not to compete/solicit where none were agreed upon during employment but no provisions are per se deal breakers.