An Ounce of Prevention: A Plaintiff Employment Lawyer’s Sincere Advice to HR

by George Kounoupis

For over 25 years Attorney Kounoupis 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.

Human resources issues are highly prevalent in the business environment, and thus there is a steady barrage of HR seminars and conferences. Knowledge of the laws and regulations is easier than ever with such consultants and online resources. However longer, wisdom in the area of HR is harder to acquire.

In this vein, therefore, allow me some general observations gained from a valuable perspective: that of a 30-year plaintiff employment lawyer-for practical purposes the “adversary” (although we should all be interested solely in obtaining fairness and justice in the workplace).

We can begin with the question of who comes to see me? Employees, of all ranks, come to see me, “chiefs, cooks, and bottle washers” and in all protected categories: age, gender, race, ethnicity, religion, disability, sexual preference, whistleblowers, etc.… As varied as they may be, they all mainly have one unifying characteristic: They feel disrespected. You can spot the employee who will cause “a problem” by seeing who feels profoundly disrespected.

When do employees come to see me? It is useful to note that they often come when they are threatened, disciplined, fearful, angry- long before they are fired. Accordingly, in such cases, HR managers should be mindful that there is a high chance of a retaliation or hostile work environment case being filed since behind the employee’s interactions there is the watchful eye of counsel and counsel’s guidance.

he best advice in my experience is holistic. It comes from understanding that for most employees a job is not just a paycheck but also a source of dignity and self-esteem. They must be able to go home and look their family in the eye. Most long-time, employees feel they have provided loyalty and claim a deep sense of betrayal when disrespected, treated unfairly or bullied. (“I missed my kids’ birthdays for this!”). In my view, the best and most effective HR manager does not focus only on what is legal but humanizes the workplace. This type of HR professional is very valuable and a formidable opponent to the Plaintiffs lawyer in litigation and in front of the jury. Such an HR professional has avoided the pitfalls of threats, bullying, and abuse of power and has acted with sensitivity and respect for the human element. Rather than using organizational power to beat down and intimidate employees, there is a use of such power sparingly to raise consciousness and bring out the better natures of employees.

A sensitivity to the human element also picks up problems early. In most cases, potential victims signal their dissatisfaction early, and harassment will frequently test their boundaries before committing a violative act.

On a more practical level, of course, HR managers cannot get by solely by humanizing the workplace- they must also know the law. They must know how to communicate their knowledge of the workplace law as it applies to real life situations. They must know how to conduct a timely and reasonable investigation. For example, some concepts, such as when is “offensive to a reasonable woman” can most effectively be taught by skits and real-life vignettes and examples of such situations.

In terms of HR, most commonly observed pitfalls I would mention: lying, covering up, bullying, exaggerating discipline and not understanding what retaliation is, improperly applied “PIP’s.” Common legal errors and misconceptions include: not realizing how to jointly apply ADA/FMLA; not understanding ADA’s interactive process or “regarded as” ADA violations; not understanding gender discrimination vs. sexual harassment; thinking severe and persuasive for hostile work environment rather than or; not understanding the “reasonable woman” standard; not understanding the scope of circumstantial evidence of causation in such cases; not understanding stereotype evidence; not understanding how sexual preference cases can be brought- and other numerous areas of confusion.

Ultimately, if things degenerate to the worst conclusion potentially for all, what resonates with juries are three themes in employment cases: respect, responsibility, and use or abuse of power. In conclusion, human beings do not evolve at the same rate as technology, and so there will be continuing conflicts in the workplace caused by emotions and human weaknesses, ego, desires, prejudices, and lusts. Complex HR issues and conflicts will persist in the workplace where adults spend a great part of their life, and as a result, great care sensitivity and training is required.

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