How to Lose An Unloseable Employment Law Case Gregory A. Hearing, Esq.

1. By: Gregory A. Hearing, Esq. Thompson, Sizemore, Gonzalez & Hearing, P.A. [email_address] (813) 273-0050 How to Lose An Unloseable Employment Law Case

2. One plaintiff’s attorney lists the following in his Top Ten ways to win an employment law case: “ 4. Choose a case with defective/inept human resource department . Look for a case with a bad human resource administrator or defective discrimination/retaliation policy that is not actually implemented, (a "paper HR policy"). Such improper handling of known acts of discrimination in the work place combined with acts of retaliation against employees who complain of discrimination make for good damage awards. I call these inept HR administrators ‘ dinosaurs ’. . . .” Source: McGovern, Glenn C., My Top 10 Ways to Win An Employment Case , Law Office of Glenn C. McGovern Metairie, La, http://www.glennmcgovern.com/CM/Custom/My-Top-10-Ways-To-Win-An-Employment-Case.asp. H.R. From A Plaintiff’s Perspective

3. Don’t Be A Dinosaur!!

6. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails

9. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions

10. Surefire Ways to Lose Unmonitored Post-Termination Employee Actions Employers must monitor employees after they are terminated. Terminated employees may access, alter, or delete documents that may be critical for proving an employer’s defense to claims by a former employee.

11. Surefire Ways to Lose Unmonitored Post-Termination Employee Actions Illustration: An employee is terminated from his managerial position after violating the company’s anti-solicitation policy. After termination, the employer does not cut off the employee’s access to relevant documents pertaining to solicitation activities. The employee deletes/destroys significant documents, including e-mails, and .pdf’s, pertaining to the solicitation issue. The employer does not have copies of pertinent files used in the decision to terminate the employee.

14. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony

15. Surefire Ways to Lose Unemployment Hearing Testimony Unemployment hearings, if taken lightly, may come back to haunt employers in a later lawsuit filed by an employee who previously sought unemployment compensation. Witness testimony during unemployment hearings is sworn testimony that may be used in a subsequent case. Employers can lose a case through one sentence in an unemployment hearing transcript. Employers must adequately prepare witnesses. Do not take the unemployment hearing lightly.

16. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously

20. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions

22. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations

24. Surefire Ways to Lose Inaccurate Performance Evaluations Illustration : An employee is not performing her daily assigned tasks. The employee’s supervisor discusses the problem with the employee and places the employee on a Performance Improvement Plan (“PIP”). The employee shows very little progress on the PIP. Instead of issuing a negative performance evaluation, the supervisor gives the employee a positive evaluation as a “motivating” strategy. The employee’s performance continues to decline and the supervisor terminates the employee. The employee later brings an age discrimination claim, and points to the positive evaluation to show she was performing satisfactorily and to prove discriminatory animus. The POINT: complete performance evaluations accurately!

25. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals

26. Surefire Ways to Lose Information Does Not Reach Appropriate Individuals An H.R. department must stress to all managers and supervisors the importance of reporting employee requests/complaints/issues to appropriate individuals in the H.R. department. Without funneling such information to H.R., the employer cannot address an employee’s request/complaint/issue. Thus, an issue that could have been addressed easily flies under the radar until it later surfaces as a lawsuit.

27. Surefire Ways to Lose Information Does Not Reach Appropriate Individuals Illustration : An employee mentions to his supervisor that he believes he has a disability and needs an accommodation. The employee fills out an accommodation request form and provides it to the supervisor. The supervisor, who is constantly busy, forgets to forward the request to H.R. The accommodation would have been relatively simple to provide, but the employee does not receive it. The employee later brings an ADA suit against the employer based on its failure to accommodate.

28. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals 8. Mishandling the EEOC

29. Surefire Ways to Lose Mishandling the EEOC An employer’s decision not to respond to a charge of discrimination filed with the EEOC or other state agency may prevent an employer from easily disposing of a case. Providing a sound position statement often results in no action by the state agency or EEOC, causing the would-be-plaintiff to “go away.”

30. Surefire Ways To Lose Mishandling the EEOC Employers must verify that the statements and facts set forth in a position statement are accurate and supported by evidence. Where the statements in a position statement are later recanted/changed by an employer, or are eventually disproven through discovery, a plaintiff will often rely on these inaccuracies to show pretext in a discrimination suit. Don’t let an employee argue: “You said I was fired for tardiness in your position statement, now you’re saying it was because I was drinking on the job. Clearly, your change of position shows that you did not have a legitimate non-discriminatory basis for firing me.”

31. Surefire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals 8. Mishandling the EEOC 9. Failure to Discipline Employees

32. Other Surefire Ways to Lose . . . Failure to Discipline Employees Poor performers cause more than just productivity problems. As mentioned previously, inexperienced or untrained managers often dread the difficult task of confronting poor performers and explaining their shortcomings as employees. Failing to discipline an employee can create unanticipated consequences for employers.

33. Surefire Ways to Lose Failure to Discipline Employees Don’t give an employee a basis to challenge an adverse employment action by saying: “ I have been doing it that way for 20 years and no one said it was wrong. What changed?” “ I had no idea I wasn’t doing a good job.” Trying to be a “nice boss” or “letting the small stuff slide” may turn an otherwise defensible case sour. Remember the saying, “No Good Deed Goes Unpunished.”

34. Other Sure Fire Ways to Lose An Employment Law Case 1. Naturally Reactive/Knee-Jerk E-mails 2. Unmonitored Post-Termination Employee Actions 3. Unemployment Hearing Testimony 4. Not Taking Employee Complaints Seriously 5. Failure to Document Actions 6. Inaccurate Performance Evaluations 7. Information Does Not Reach Appropriate Individuals 8. Mishandling the EEOC 9. Failure to Discipline Employees 10. E-Discovery/Spoliation

35. Electronic Discovery* With the rapid introduction of technological advancements over the last two decades, the practice of law has changed substantially. Electronically Stored Information (“ESI”) and electronic discovery are quickly becoming normal and routine issues in civil cases. Think about it : Almost everyone uses a computer at work and most documents/information now originate as electronic documents. *For an in-depth review of the e-discovery issues discussed in this presentation, see Jeffrey J. Fowler & William H. Dance, Preserving Electronically Stored Information: A Practical Approach , BNA’s E-Discovery Portfolio Series, No. 3 (2007).

40. E-Discovery Spoli what? E-Discovery and the applicable procedural rules/case law regarding e-Discovery have changed the way litigation is conducted and the obligations imposed on litigants regarding preservation of ESI. Litigants who fail to “follow the rules” or take the necessary actions to preserve ESI can be sanctioned for “spoliating evidence.” Spoliation : 1) The intentional destruction, mutilation, alteration, or concealment of evidence, usually a document; 2) The taking of a benefit properly belonging to another (Black’s Law Dictionary, 9th ed. 2009). Spoliation is a serious matter .

44. Electronic Discovery Case Illustrations Strasser v. Yalamanchi , 783 So. 2d 1087 (Fla. 4th DCA 2001) (an appropriate remedy for destruction of a hard drive containing relevant ESI includes instructing the jury of the pre-trial discovery conduct of the offending party ). 2. Entry of default/dismissal Gillett v. Michigan Farm Bureau , 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009) (plaintiff in a sexual harassment case admitted he deleted potentially relevant e-mails prior to filing the case. As a sanction for spoliation, the court dismissed the plaintiff’s case ). Krumwiede v. Brighton Associates, L.L.C. , 2006 WL 1308629 (N.D. Ill. May 8, 2006) (plaintiff’s destruction of data amounted to spoliation. Computer experts analyzed the plaintiff’s computer and found that the plaintiff performed maintenance, including defragmentation, on the computer after the court issued a preservation order. The court held that the actions constituted a willful attempt to frustrate discovery, entered a default judgment against the plaintiff , and awarded the defendant attorney’s fees and costs ).

45. Electronic Discovery Case Illustrations 3. Shifting Evidentiary Burdens Coleman Holdings, Inc. v. Morgan Stanley & Co., Inc. , 2005 WL 679071 (Fla. 15th Cir. Mar. 1, 2005) (holding that defendant spoliated evidence by overwriting e-mails when it had knowledge of litigation. As a sanction, the court shifted the burden of proof on the issue of fraud to the defendant ). 4. Denying Prevailing Party Attorney’s Fees Broccoli v. Echostar Communications Corp. , 229 F.R.D. 506 (D. Md. 2005) (Involving breach of contract claims and sexual harassment claim. Jury found for the plaintiff on the contract claim, but not on the sexual harassment claim. Post-trial, the judge refused to award defendant attorney’s fees on the sexual harassment claim, reasoning that the defendant’s spoliation of evidence led to the plaintiff’s loss of the sexual harassment claim).

51. Electronic Discovery Satisfying the Duty to Preserve Once a duty to preserve is established, courts provide guidance on what employers must do to meet the duty: I) First, the party (and the party’s counsel) must “ become fully familiar with the client’s document retention policies” and “ speak with ‘key players’ in the litigation” to understand how ESI is stored.” Zubulake v. UBS Warburg , 229 F.R.D. 422 (S.D.N.Y. July 20, 2004).

59. Electronic Discovery Litigation Hold Sample Portion of a Litigation Hold: MANDATORY DOCUMENT RETENTION NOTICE This notice suspends the Company’s general Document Retention Policy & Procedures concerning all documents described below, which must be retained in connection with the matter John Doe v. The Company. The Company is implementing a mandatory document retention requirement to preserve documents that may be relevant or related to this matter. Please review this memorandum carefully and adhere to the mandatory document retention policy outlined herein. This notice supersedes any other Document Retention Notice received regarding this matter.

65. Gregory A. Hearing, Esq. Thompson, Sizemore, Gonzalez & Hearing, P.A. 201 N. Franklin Street, Suite 1600 Tampa, FL 33602 [email_address] (813) 273-0050