THE BLOG
07/29/2016 01:07 pm ET Updated Jul 29, 2017

'No Angels In The Workplace'

It is a big crowd: over 100 people. The croissants have been consumed, the coffee cups emptied and refilled. On the dais are five employment attorneys: four speakers and a moderator.

The local bar association has sponsored this conference on the latest developments in employment law. Scanning the room, I can tell who represents employers and who is a plaintiffs' lawyer. We plaintiffs' attorneys are a motley bunch, clearly less affluent than our employer-side colleagues. We sport no Prada bags, Saville Row suits or Jimmy Choos. While I'm still in my corporate get-up - tailored suit, low-heeled pumps, leather tote bag - that's only because I've been out of the corporate world for only a couple of years. A few more seasons, and I'll resemble my less prosperous, plaintiff-side colleagues. Clearly, we are outnumbered at the seminar by employer lawyers.

The moderator introduces the speakers. Sure enough, but for a lone civil rights lawyer, all those on the dais represent employers, as in-house counsel or through white-shoe firms. Yet I am attending today's conference to learn strategies for representing my employee clients, most of whom are salaried, middle-class professionals. I am starting to wonder what the conference actually will be about.

I don't have to wait long for my answer. The first session is a 2-hour tutorial on how to fire employees without being sued, couched as a primer in the rigors of federal, state and local labor and employment law. Reading between the lines - including the speakers' repeated admonition that an employer "must obey the laws" - an attorney or shrewd employer can easily discern a protocol for avoiding even a meritorious wrongful termination charge.

I am saddened; doesn't anyone care about employees? Are the boss's interests the only ones worth protecting? Yet I soon realize that this is a protocol that everyone - particularly the employees whose rights may be at stake -- should know and understand. For that reason, I'm sharing what I learned. (Prada shoes: $900.00; learning how the game is played: priceless!)

The presentation begins with a PowerPoint presentation. On the first slide, in bold lettering, are three directives: (1) "Avoid the Halo Effect"; (2) "Document, Document, Document"; (3) "Plan Lay Offs Carefully." These, we are told, are the three commandments of liability-avoidance.

Next, we are given the set of facts - known to attorneys as a "hypothetical" - that the panel will use to explain the 3 commandments. The hypothetical describes an African-American woman with excellent credentials who, before being fired, had worked for her employer for over 5 years, garnering high praise in annual performance reviews. While on maternity leave, however, she was replaced by a white male employee. Upon returning, she was demoted. A few months later the company merged with another entity and the African-American woman lost her job.

Does the panel describe how a plaintiffs' attorney can successfully litigate this seemingly blatant example of illegal discrimination? No! The moderator tells us that, by following the three commandments, employers can escape such liability. Over the next two hours, we are told, we will learn how our clients may avoid the pitfalls that await the unwary - and, the panel presumes, entirely innocent - boss.

Avoiding the "halo" effect. Every performance review, a panelist warns, should include negative comments; no employee personnel file should contain solely positive reviews. A personnel file that contains only praise, she explains - i.e., creates a "halo" effect -- could become a legal land mine if the employee is later fired.

So when you receive a positive review and, still glowing, hear the words, "But of course, there's always room for improvement" - beware! Too modest and reasonable to lay claim to a halo, you may rely, "Of course there is room to improve; nobody is an angel!" You may then graciously accept the few, seemingly trivial criticisms that follow. Yet those apparently minor caveats remain in your personnel file, and can be weaponized into a powerful defense against a wrongful termination claim. You may then find that, not merely do you not have a halo, but what you thought was a halo is being portrayed by your former employer's lawyers as a large, pointy dunce cap.

"Document, Document, Document." A second speaker tells us that every infraction or performance lapse must be promptly and fully documented. Therefore, that occasional long lunch - your former roommate is in town and takes you out for sushi -- or the 24-hour deadline extension that your supervisor readily granted, unbeknownst to you may be recorded as a demerit. Because many states do not permit employees to review their personnel files, by the time that you learn about the chink in your halo, it may be far too late to effectively respond. Documenting minor infractions is another tool that employers use to create firewalls against lawsuits.

"Plans Layoffs Carefully." A panel member explains that, to survive a civil rights challenge, a layoff should include employees in "unprotected" classes - namely, young, non-disabled, straight white men. By laying off only a single employee, an African-American woman, the employer in the hypothetical had made a serious error. A departmental or - even better - company-wide "restructuring" could have averted what was now certain to be a lawsuit or EEOC charge. (In fact, so-called restructurings and internal reorganizations have become a common method of effecting lay-offs.)

By the time that we break for lunch, I am seriously depressed. Although each speaker has emphasized that employers must follow the law, together they have provided what is, in effect, a blueprint for breaking them. Between bites of pasta salad and sliced chicken, the attorneys at my table share war stories, describing the employee claims that they have defeated. For each defeated claim, I see a human being who, having lost a job and benefits, terrified that the family home will be next, frantically pitches resumes into the black hole of the internet. Confronted by an artfully constructed record and attorneys primed for a long, expensive battle, the employee surrenders, accepting a proffered (probably lousy) severance agreement, signing a gag clause and attempting to move on.

Of course, not every employer acts illegally, and some employees deserve to be demoted or fired. Moreover, a staff lay-off may be unavoidable and fairly conducted. It was clear from that seminar, however, that an employer who wants to avoid the laws can probably do so. Employees are not the only creatures undeserving of halos; I didn't see many angels in that seminar room.

I leave the conference feeling discouraged and isolated -- a pair of resoled Clarks pumps among a sea of Jimmy Choos. Nonetheless, the seminar has taught me the rules of the lay-off game, the first step in playing the game to win. Sharing those rules may very well be step two.