Network Magazine’s goal is to be on the cutting edge in offering insights into business opportunities and pitfalls. One of the greatest liability risks of any business is employee lawsuits. These are not only expensive but also disruptive and can influence employee morale and productivity. In this article, therefore, we sought out one of the most highly regarded and top-ranked worker-side employment “Super Lawyers” in the State. This is a lawyer who may very likely sue your business and who has been identified as the “guy your company doesn’t want to get contacted by”. For over 25 years he has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future. Below he provides his candid insight into how employers usually get themselves in trouble with employees.
NETWORK: What is the one biggest mistakes you would say employers make?
KOUNOUPIS: That is a tough one, because there are so many. If I was pressed to identify one, I would say firing an employee for false or made up reasons. This, by itself opens up so many avenues for liability that I have to place it very high on the list.
NETWORK: Isn’t it true that Pennsylvania is an “at-will” state, so you can fire anybody for anything?
KOUNOUPIS: Technically, this is true – but this is another employer pitfall. It’s like saying, “everything is legal which is not illegal”. The fact is that there are a myriad of ways to get in trouble in terminating an employee. It doesn’t really matter whether you actually believe your reason is valid or that you feel that you are not acting illegally. Employers also confuse the term “right to work” with “at will”. They are different because “right to work” has to do with being forced to join a union.
NETWORK: If the employer doesn’t do anything wrong, why should it be concerned?
KOUNOUPIS: This is where employment law is different and herein also lies the reason why great care needs to be exercised. Employment law is not “negligence” based. It doesn’t matter if you didn’t know the law. These laws are formed as social legislation designed to counter imbalances in society. The law anticipates that no employer will admit to discrimination or retaliation. So the circumstances of the firing will be carefully examined to seek out true “motivation”. You don’t need to even be aware you are discriminating to be found liable if you apply stereotypical notions about your employees. The jury will be asked to infer “motivation” from false and inconsistent employer reasons alone, or from some careless comments made by your supervisor.
NETWORK: Well, isn’t a good rule of thumb to just treat everyone equally?
KOUNOUPIS: No, the law requires that some people in the workplace be treated differently and/or accommodated – such as in the case of the disabled or in the case of religious accommodations.
NETWORK: What areas of employment law are you seeing the most cases in?
KOUNOUPIS: We are seeing a lot of age discrimination cases we are still seeing sexual harassment and gender discrimination cases, race cases and disability accommodation and leave cases. We are seeing caregiver discrimination cases for people taking care of disabled spouses and children under both ADA and FMLA. However, the most common cases are still retaliation cases. These are dangerous because juries may tend to believe that no one truly still has discrimination in their hearts, but they can easily relate to “let’s get her because she is going to get a lawyer and be a troublemaker etc…”
NETWORK: What are some of the other most common misconceptions of employers?
KOUNOUPIS: A common one is that the only medical leave employees are entitled to, is FMLA leave. In fact, employees may be entitled to more leave under the ADA. Another is that they do not have to be concerned about employees joining to complain about work conditions if they are a non-union workplace. This is also incorrect and can lead to an NLRB unfair labor practice. Another common one is believing they can avoid liability if the discriminator is not the one doing the firing. The law has a theory called “cat’s paw” that will allow the jury to infer that a discriminating or harassing manager “influenced” the employment decision. Another misconception is that calling someone a manager or salaried, means that they are exempt from the FLSA laws and overtime regulations. They are not. Employers are also still underestimating the liability risk of misclassifying employees as independent contractors. Also, more and more we see non-compete agreements which are non-enforceable because employers do not understand that these have strict legal pre- conditions. Yet another misconception is that their HR doesn’t have to do anything about discrimination and harassment if the employee doesn’t want anything done. The duty to properly and promptly investigate is critical and not based on the employees’ wishes.
NETWORK: What hot, cutting edge issues are there in employment law?
KOUNOUPIS: Well, LGBT issues are in the forefront. While technically it is not yet illegal under Federal or State law to discriminate on this basis, many employers violate these laws by utilizing or employing stereotypical notions of gender roles. Also, social media issues are very much in our practice now as well as concerns about the protection of proprietary data.
NETWORK: Turning to the other side, what are some of the misconceptions of employees?
KOUNOUPIS: The biggest one is that I hate my boss or he hates me or my boss is unfair or cruel. Do I have a case? No you do not, just because of that reason. Nor can you be insubordinate to your managers because you do not agree with their business judgments. Another one is, the First Amendment protects my right to speak my mind in the workplace. Not with a private employer, it does not. I also hear from many employees who believe that HR has to keep what they say confidential. That’s not true. Employees also believe that it is illegal for employers to give a bad reference for some reason.
NETWORK: What are your final brief words of advice to employers, if you had to distill it?
KOUNOUPIS: Don’t make up reasons for firing people; conduct full and impartial investigations; have uniformly enforced and applied policies; and retain counsel to advise you before acting rashly. Also, a lot of the people who come to my office are mad at the way they have been treated. Try to treat people with dignity, especially recognizing the years of loyalty they may have given your company. Finally, if you are really concerned that liability may exist, (every time you fire someone in a “protected category” age, gender, disability, care-giver, pregnant, female, whistle-blower etc…) offer and negotiate a fair severance package in exchange for a full release.