It happened again, last week.  An employer was sued.

Wait, what’s that? A new lawsuit gets filed EVERY day against employers?  (Actually, in federal court, at least 11885 employment lawsuits were filed in 2017. Far more than one a day.)

But last week, there were a bunch of headlines – a new sexual harassment lawsuit filed against a major Connecticut employer.

(I’m not going to mention it here for reasons that will become apparent in a second).

News organizations ate the new lawsuit up picking up scurrilous allegations that were even denied by some of the people involved.

This, of course, isn’t the first time that this happened — that is, news organizations publishing the fact that a lawsuit was filed.

Why? Is it really news?

Reporters would say yes, the public has a right to know.  And in fairness to them, a new lawsuit may have some newsworthiness.

But I’d argue that many reports about lawsuits get published for far simpler reasons — they’re easy to write about.  The facts are laid out in a complaint; all that’s really needed is a few quotes and a response from the employers and the story writes itself.

Typically, the news stories aren’t even written on the fly; a lawyer may “tip off” the reporter that the lawsuit is coming and offer “exclusive” interview to the reporter that coincides with the lawsuit.

At that point, the employer is left to say that it doesn’t comment on pending legal matters or that it’s still “investigating” the claims.

And even when the employer files its motion to dismiss, or answer, or actual responsive pleading, the press has long since moved on.

Employers must recognize this and be prepared to either respond to the press quickly, or figure out your plan ahead of time.

Communications expert Andrea Obston goes one step further and notes that with social media, your company’s story is being told — so you might as well get involved in the conversation.

In today’s on-line world, it’s easy for anyone to tell your story.  Don’t let them.  Tell it yourself.  Tell it authentically and tell it often.  If you don’t, expect someone else to do it for you – whether you like it or not.

Employment lawsuits are easy news. You should understand that by now.   Knowing what to do next may at least position your company as something different than just today’s punching bag.

Employment lawsuits can be more than just legal matters nowadays; the pressure of the online world can be huge. Understanding the stakes now in play are important for employers to understand as they defend against such lawsuits.

Did you ever have an employee post a status update from his termination meeting with HR?

I wrote about it a few years ago.  It seemed shocking then, and if anything, we’ve only seemed to be shocked more and more as each new tweet or blog post gets distributed with some outrageous behavior from an employee (or sometimes an employer!).

It used to be that companies would have weeks, if not days, to respond to publicity.  Now, it’s hours or even minutes.

Companies want to preserve their culture and reputation — and their corresponding products and services — more than ever. One misstep can get the online outrage machine going.  heck, even McDonalds’ got into a online snafu when it released (and then promptly sold out of) a unique retro szechuan sauce.

This Thursday, my colleague Jarad Lucan and I will be talking about these issues at our annual Labor & Employment Fall Seminar.  It’s nearly sold out, but you can still see about registering here.

The program session is entitled: Culture Shock: Preserving and Protecting Your Company’s Culture and Reputation in the Digital Age.

And the description is as follows:

In today’s social-media-obsessed digital age, your company and its culture may be put on display for the world to see in mere moments. Whether it’s a Google engineer’s memo claiming gender differences, the sexual harassment scandals at Fox News or the Weinstein Companies, social media rants by employees, or employees participating in hate riots, it has never been more incumbent upon employers to address these issues immediately and appropriately. This session will review state and federal laws and provide employers with steps they can take to create and foster positive company culture and mitigate legal risks.

Of course, it goes without saying that some cultures that have been exposed to the harsh light of social media deserve to be discarded.  Over 20 employees were dismissed at Uber following a detailed sexual harassment investigation into some 215 claims.

Come join us this Thursday and hear about other stories of employees (and employers) behaving badly online and elsewhere.

 

For employers, there are a lot of things within your control. You can control how to discipline an employee and when to take certain steps including termination. You can control how much severance you offer that employee and whether to offer severance at all. 

But there is one thing that employers can’t control that can have a big impact on how an employee’s situation is resolved — who the employee hires as his or her attorney.

That factor is often overlooked by employers who want the matter to be decided purely on the “merits”.  Cases don’t work that way though.

Who the employee hires, can be the difference between resolving issues in a separation agreement amicably or a multi-year armageddon.  It can mean the difference between a battle based on facts and a battle based on emotion.  It can be the difference of spending $2000 or $200,000 in your outside counsel fees.

All based, in part, on the choice of an attorney.

For employers, you may not be able to control who your employee hires, but you can control how you deal with that attorney.   If you’re unfamiliar with him or her, ask around.  Does that attorney have a tendency to take lousy cases and puff them up as if they’ve got a lottery case on his or her hands? Or does the attorney have a reputation for weeding out frivolous cases and mainly taking cases that have some merit to them?

Does the attorney typically take contingency fee cases or does the lawyer require some type of blended rate, thus cutting down on a winner-takes-all mentality?  Does the attorney have a reputation for settling right before trial or a reputation for fairly valuing cases early on?

It is also important to understand whether the case the attorney is bringing is an isolated one or the start of many. Does a message need to be sent to the attorney that you are not easy pickings for nuisance value suits?

Above all else, understand your opposition.  Just like attorneys in general, there are some great plaintiff’s attorneys and some lousy ones.  Some are publicity seekers while some get publicity based on their reputation.  Knowing who you are dealing with can help suggest a path going forward.

Of course, that’s not the only consideration for you to consider: some good attorneys take “bad” cases and some mediocre attorneys stumble onto “good” cases; but for employers, don’t overlook the attorney because I can assure you: that attorney is looking right at you.