Picking Bad Fights

Posted on April 26, 2017 in Consulting

Employers often spur challenging litigation or government investigations by picking a fight with a former employee over an unworthy issue.   The fight might involve an employee taking something that does not belong to them and typically not of any real value (e.g., a uniform or some small company tool).  Similarly, a business may feel compelled to send a cease and desist letter with no intention of filing suit to enforce the non-compete the employee signed.  Perhaps the most common dispute relates to docking an employee’s final paycheck and soon thereafter the DOL appears for a random audit or OSHA shows up for an inspection.

Today I write to discuss some tips employers should consider before they send a letter that spurs a former employee to pursue a claim in court or with a government agency.

Call the Lawyer First

If your thinking this advice results in more work for me and obvious self-promotion, not true.  In reality, I have for twenty plus years frequently persuaded clients to make choices that avoid litigation and decrease legal fees. A 30 minute conversation with your attorney can generally pinpoint the concerns that might warrant an employer backing off a petty issue to avoid a real fight.

Know Your Exposure

Nearly every DOL audit, and subsequent review of overtime obligations, comes from an anonymous phone call to the DOL from a disgruntled former employee.  The DOL never pays any attention to the integrity of the caller.  The government could not care less that the employee, by way of example, was smoking marijuana while driving or stole from the company.  (Both are true stories.)  Thus, an employer needs to think about whether it is prepared to open its time records and payroll before launching into a controversy against an angry former employee.

Likewise, many EEOC Charges of Discrimination stem from fights employers start.  One extreme example proves my point.   A client forwarded an EEOC Charge with allegations of sexual misconduct so detailed that I was embarrassed to have it lying on my desk.  The Charge was filed long after the employee quit and within 30 days of the company sending her a letter informing her that she should not be in communication with clients of her former employer.  The company was not intending to fight the non-solicitation of clients provision and only wanted to scare the woman away from competing.  It did not bode well for the employer.

Assess the Potential Gain

Employers need to know what they want to achieve and be committed to the position before they start a battle with a former employee.  Having the last word or trying to send a message is rarely a worthy purpose.   The business should assess the real cost of the fight and be willing to engage in the war, not the battle.

The Lesson:  slow down and think before you poke a former employee.