I see a lot of emotions working in employment law. Domestic lawyers and criminal lawyers see more, but employment law is probably next…after all, it involves people and, for some of them, their jobs and their reputations. Many of the emotions are quite understandable under the circumstances. But what do you do with those emotions, and what does your lawyer have to do with it?
Let’s start with some situations where I see the emotions. Most readers will be familiar with some of them:
- An employee has unexpectedly called in sick, and the employee’s team is up against a big deadline. The manager and other teammates are frustrated. This is a frequent occurrence with this employee and they’re all tired of it. Sometimes (not always) this is coupled with a feeling that the absent employee is not really as sick as she says; that’s doubly frustrating.
- A former employee has become employed by a competitor, perhaps in violation of a noncompete or nonsolicitation agreement. (But it’s aggravating whether there’s an agreement or not.)
- Your company is the subject of some governmental investigation, perhaps a wage/hour audit from the Department of Labor. You know that other companies like you are doing it the same way you are and they have not gotten in trouble. It stinks to be on the wrong end of selective enforcement. (traffic ticket, anybody?)
- A former employee is lying in some sort of legal proceeding, or even just out in the marketplace, about some situation the employee had with the company.
- While we almost exclusively represent employers, we do represent executives in severance situations. As anybody who has been put in that position involuntarily knows, that’s upsetting.
That’s a lot of examples, but I want to give readers maximum opportunity to identify with at least one of these situations. Even if you don’t, it should be easy to see – those situations are legitimately frustrating. Being frustrated doesn’t make you a bad person.
Now picture yourself going to a lawyer for advice. You’re not a lawyer, but you know you’ve been done wrong, and you want somebody to do something about it, because you deserve it. Let’s look at two ways that conversation can go.
One is that the lawyer can amplify your emotions, tell you how right you are, and get to work following your first instinct. Let’s take that first bullet point with the employee health issue. You’re the employer and you want to fire her right now. Of course you can, the lawyer says – coming to work is part of the job. Go ahead and let her go.
At that moment, everybody feels better. You feel better because you’ve been validated and you are finally going to get rid of that employee. And that feels good to the lawyer too – contrary to some reports, we are people too, and it is gratifying to have the client hang up the phone and be happy. It’s actually not fun to tell a client, I understand where you’re coming from, but I think you’re WRONG. And that comfortable, short-term outcome might be the end of it – the company and the lawyer both win.
But sometimes…they don’t win. The second way that conversation might go is for the lawyer to be experienced and confident enough to say, “OK, I completely understand how you’re feeling, but let’s step back and make sure we are protecting the company in the long run.”
Firing employees with health issues too quickly is the biggest mistake I see employers make over and over. They may have rights under the disability discrimination laws, your company policies, a union contract or, if you’re big enough, the Family and Medical Leave Act. Certainly not all employee health issues raise those legal issues, but more do than many employers expect, and getting it wrong can cost you a lot of money. The good news is, you can often successfully manage those issues to a satisfactory conclusion. You just have to separate your short-term emotion from the decision-making process and manage them first.
It’s beyond the scope of this space to play out each one of those bullet points like that. But I could. Some clients think they want a lawyer to validate their short-term emotions: Are you on my side or not? But experience shows us over and over that hasty and/or emotional decision-making does not pay off in employment law situations, and clients will benefit if they welcome and listen to the pushback.
The emotions are normal. But there is not much point in you paying what you have to pay for legal advice just to have the lawyer tell you what you want to hear, especially what you want to hear when you’re understandably upset. How has the lawyer seen it play out before? Are there bad case scenarios you need to be considering? How likely are they?
So by all means, get your frustrations off your chest, then take a deep breath and invite some candid input on your choices and next steps.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
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