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August 3, 2021

News West

West Coast News Network

Doing the Right Thing Versus Proving You Did the Right Thing

In the words of a mediator in a recent case, “at least you get a discount for not being an @ssh%le.”

Yes, many employers actually try to, and even succeed in doing the right thing.  But doing the right thing, and proving you did the right thing are diametrically opposed concepts.  And proving you did the right thing when plaintiff’s counsel and their client pick apart every aspect of everything you did is an uphill battle.  Unfortunately for many employers it is harder than it should be, and good people running an honest business wind up being extorted $$$ to settle cases because it is too costly (emotionally as well as financially) to risk litigation.

This concept comes up in my practice quite often, and it is a shame.  I wish it were easier to do business in California, and more cost effective to fight claims that have a valid legal defense.  But often it isn’t.

So what steps can an employer take to avoid such a shakedown, where it is many multiples more expensive to win in litigation than to settle?  There are some options (none perfect, and each with pros and cons):

  1. Pay for an EPLI policy with a low deductible, and litigate at the carrier’s expense.
  2. Provide every exiting employee a separation agreement in exchange for a release (and hope they sign without asking for more).
  3. Implement an arbitration agreement with a mediation option at the employer’s expense; at least you will get the other side talking early and a chance to resolve things before heading into full-on litigation mode.
  4. Document everything.  I mean it.  Every performance conversation.  Every discussion about a doctor’s note and work restrictions in an interactive process log.  Have an accommodation log to show how employees are consistently accommodated.
  5. Conduct periodic audits of your paystubs and payroll practices.
  6. Train new managers on the proper protocols during onboarding and periodically thereafter.
  7. Update your handbook annually.
  8. And please, stop texting your employees, they save all the bad stuff and delete the good stuff.

Or, you can just hope karma works, and that good things happen to good people, and if you do get sued, you get the “not an @ssh%le” discount.