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D O S W E A T T H E S M A L L S T U F F – L IT T L E H R
M IS TA K E S T H A T C A N C A U S E B IG P R O B L E M S
M it c h e ll W . Q u ic k ,
Es q.
A m y S c h m id t J o n e s ,
Es q.
M a y 3 , 2 0 12

THE DETAILS MATTER

 PAYING ATTENTION TO THE NUTS AND BOLTS OF
EVERYDAY HUMAN RESOURCES TASKS IS OFTEN
THE KEY TO PREVENTING AND/OR WINNING
LAWSUITS

 FEWER LAWSUITS = MORE JOB SECURITY FOR
YOU

05/16/12 Michael Best & Friedrich LLP © 2

THE CASE OF THE MISSING DECIMAL POINT

 JPMORGAN SUED – OFFER LETTER TO TRADER
FAILED TO INCLUDE DECIMAL POINT
 TRADER THOUGHT HE WAS BEING PAID $24
MILLION RAND, INSTEAD OF $2.4 MILLION RAND
 IN U.S. DOLLARS – ABOUT A $3 MILLION DOLLAR
DIFFERENCE
 COMPANY DISCOVERED IT, AND RETRACTED
OFER BEFORE HE STARTED
 HE REFUSED TO START AND SUED


THE CASE OF THE MISSING DECIMAL POINT

 RESULT – EMPLOYEE LOST AT TRIAL
 COURT HELD EMPLOYEE ACTED WITH “EYES
WIDE OPEN”
 CAUSE FOR CELEBRATION?
 NOT SO MUCH – BIG ATTORNEY’S FEES, WASTE
OF TIME, AND BAD PRESS


WEAPONS OF CASE DESTRUCTION

 TELEPHONES

 MAIL

 COMPUTERS


PHONE TIPS

 NEVER TALK WITH A LAWYER REPRESENTING AN
EMPLOYEE OVER THE PHONE

 EVERYTHING YOU SAY IS EVIDENCE THAT WILL BE
USED AGAINST YOU

 YOU COULD BE TAPED

 YOU ARE NOT GOING TO TALK THE LAWYER OUT OF
BRINGING THE CASE


PHONE TIPS

 IF YOU HAVE COMPANY COUNSEL, THE LAWYER
PROBABLY SHOULD NOT CONTACT YOU

 THE SAME RULES APPLY FOR CALLS WITH ATTORNEYS
FROM GOVERNMENT AGENCIES

 TELL THE LAWYER TO CALL OR WRITE YOUR LAWYER


PHONE TIPS

 SAVE ALL VOICEMAILS IF POSSIBLE, AND ALSO
TRANSCRIBE THEM

 FOREVER PRESERVE ANY STATEMENTS OF QUITTING,
INSUBORDINATION, OR THREATS

 SAVE ANY “EXCUSES” FOR ABSENCES WHEN YOU
KNOW YOU ARE LIKELY TERMINATING THE EMPLOYEE

 SAVE ANY UNIQUE ACCOMODATION REQUESTS


PHONE TIPS

 DON’T TALK WITH AN AGENCY INVESTIGATOR
OVER THE PHONE BEFORE RECEIVING A LETTER
CONFIRMING AGENCY INVOLVEMENT

 ANYTHING YOU SAY IS EVIDENCE, AND IF CAUGHT OFF
GUARD, YOU MIGHT SAY SOMETHING INACCURATE

 DO YOU KNOW THE PERSON IS ACTUALLY FROM A
GOVT. AGENCY, OR IS IT ACTUALLY THE EMPLOYEE’S
FRIEND OR LAWYER?


PHONE TIPS

 DON’T DELETE TEXTS FROM EMPLOYEES

 FOREVER PRESERVE ANY STATEMENTS OF QUITTING,
INSUBORDINATION, OR THREATS

 SAVE ANY EXCUSES FOR ABSENCES WHEN YOU KNOW
YOU ARE LIKELY TERMINATING THE EMPLOYEE

 SAVE ANY UNIQUE ACCOMMODATION REQUESTS


PHONE TIPS

 DON’T TALK WITH AN EMPLOYEE’S FAMILY
MEMBERS
 OFTEN TIMES THEY ARE FISHING FOR
INFORMATION TO USE AGAINST THE
COMPANY (SUCH AS A PROMISE OR
ADMISSION)
 OFTEN ARGUE AND ACT AS THE
EMPLOYEE’S ADVOCATE – NOTHING GOOD
COMES FROM THIS


PHONE TIPS

 YOU HAVE NO LEGAL OBLIGATION TO TALK TO
THEM (UNLESS EMPLOYEE IS A MINOR OR CALLER
IS GUARDIAN)

 EXPLAIN YOU WILL TALK TO THE EMPLOYEE, BUT
CANNOT TALK TO THEM BECAUSE IT IS A
CONFIDENTIAL, PERSONNEL MATTER

 DISCUSSING CONFIDENTIAL EMPLOYEE
INFORMATION COULD LEAD TO A PRIVACY CLAIM


MAIL TIPS

 SIGN AND MAKE A COPY OF SIGNED COPY FOR
THE FILE OF ALL IMPORTANT DOCUMENTS YOU
MAIL OUT TO EMPLOYEES
 Termination letters
 FMLA letters
 COBRA Forms/cover letter
 Offers of employment
 Responses to accommodation requests


MAIL TIPS

 SEND ALL IMPORTANT DOCUMENTS BY REGULAR
AND CERTIFIED MAIL AND INDICATE MEANS OF
DELIVERY ON THE LETTER
 Termination letters
 FMLA letters
 COBRA Forms/cover letter
 Offers of employment
 Responses to accommodation requests


MAIL TIPS

 KEEP ALL SIGNED RECEIPTS OF MAIL SENT
 THIS IS YOUR PROOF THE EMPLOYEE GOT NOTICE
 CAN START THE STATUTE OF LIMITATIONS RUNNING


MAIL TIPS

 MAKE SURE YOU KEEP ALL LEGAL DOCUMENTS
SERVED ON YOU BY MAIL OR OTHERWISE, AND
IMMEDIATELY NOTIFY LEGAL COUNSEL
 Two guy sued Pepsi for “stealing their idea”
of selling purified bottled water
 Pepsi misplaced paperwork, didn’t answer
or show up for court
 Default judgment – $1.26 BILLION


MAIL TIPS

 The Lesson: some documents are more
important than others, and are not “junk
mail”
 Do not assume your lawyer was served the
same day or knows about the lawsuit
 EEOC Charges, ERD Complaints, Wage
Claims, Personnel Record Requests, etc.
have short deadlines and need immediate
response


COMPUTER TIPS

 PROOFREAD AND SPELLCHECK ALL KEY
DOCUMENTS
 Pacific Yellow Pages ran an ad for a travel company
that stated the travel firm specialized in providing
EROTIC travel services
 It should have said EXOTIC
 Company lost a LOT of clients
 Sued for $10 million


COMPUTER TIPS

 READ AND RE-READ THAT EMAIL BEFORE SENDING


COMPUTER TIPS

 A UK Company, Aviva Investors, had
previously announced they were going to
eliminate 12% of their workforce (160
positions)
 The Company sent out an email to an
employee that spelled out the requirements
of the employee’s confidentiality agreement


COMPUTER TIPS

 The email also included the line: “I WOULD
LIKE TO TAKE THIS OPPORTUNITY TO
THANK YOU AND WISH YOU ALL THE BEST
FOR THE FUTURE”
 The problem? The email went to all 1,300 of
the Company’s employees
 The lesson – avoid itchy trigger fingers on
the keyboard


COMPUTER TIPS

 Watch your tone and maintain professionalism. All
caps and multiple exclamation points do not present
the picture of a level-headed employer.
 Some subjects and sentiments are not well-suited to e-
mail exchanges.
 Discussion of legal risk associated with action
 Expressions of frustration or annoyance


COMPUTER TIPS

 An example from the C-Suite: Today’s e-mail becomes tomorrow’s
PR nightmare.

From: Ben Baldanza [mailto:Ben.Baldanza@SpiritAir.com]
Sent: Monday, August 20, 2007 1:02 PM
To: (removed by alex), Christy; Martin (removed by alex); Tony
(removed by alex); John (removed by alex); Pasquale (removed by
alex)
Subject: Re: Complaint

Please respond, Pasquale, but we owe him nothing as far as I'm
concerned. Let him tell the world how bad we are. He's never flown
us before anyway and will be back when we save him a penny.


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