Take the time to determine whether some immediate action must be taken and then take only that action.  It is important that you keep all, or at least most, of your options open at this time.  If you must remove an employee from the work area immediately because of some employment related reason, such as safety, security or confidentiality, then you may wish to look at a suspension of the person, whether paid or unpaid, to give yourself the time to cool down, review all of the facts and make a business decision which is devoid of emotion. I prefer a paid suspension since it does not have a readily apparent economic impact upon the employee and it gives management and incentive to pursue further investigation as a priority.  The good side to a suspension is that it can be used in situations where some form of harassment has been alleged against an employee and you really do not have the option of separating this employee from the immediate workplace.  Keep in mind that if you’re going to set a practice where you suspend an individual prior to termination you should, in most instances, make this procedure standard throughout your organization to avoid any future appearance of discriminatory action. Even if you suspend someone for a few days to give yourself time to review the full matter and give it due consideration the cost to you of a few days pay could save you a great deal of time, trouble and other costs in the long run.

Take the time to fully and carefully consider the action which you are going to take so that you can look further than just your knee jerk reaction to fire someone. This will give you the opportunity to look over the full situation and determine all of the ramifications of the action which you are considering. By careful consideration you will have a better chance to avoid making a mistake in the manner or reason for the termination. With the large number of rules, regulations and employment laws which are on the books you cannot afford to make a spur of the moment decision which has permanent ramifications without due consideration.  It is advisable to have the experienced advice of another person to whom you may confide all of the facts surrounding the matter.  This person should have the strength of character to make up their own mind based upon the facts which you present to them and give you their opinion of what they believe should be the action taken in the situation.  Please be sure to provide the facts in a neutral fashion without leaning to the left or the right in their presentation to limit the bias of the neutral opinion which you are seeking.  Also remember that unless you are speaking to an attorney who is acting in the course of his or her representation your discussion might be subject to disclosure in any future discovery taken in the event a lawsuit is filed.  Of course the other side of the coin is that if you decide not to follow the neutral advice you have obtained, unless it is from the attorney who is representing you and your company, then this neutral opinion could very well turn into a piece of evidence used against you by the disgruntled prior employee.  While this probably does not need said, do not get this opinion from someone in the workforce no matter how much you respect them.

Take the time before you take action to carefully review and consider the entire situation and then make a decision based upon good and sound business practices. Emotions such as anger, contempt, feelings of betrayal and even compassion do not have a place in making this decision.  Remember that the decision which you are making for this one individual is setting a precedent which may very well impact your dealings with all of your other employees whether they are employees who provide great value to the Company or other services or whether they do not.  Future actions which you take may and probably will be measured against those past actions which you have taken.  I have prepared many employer sided Position Statements to be provided to the Investigator in the course of EEOC or OCRC investigations and anyone who has participated in one of these investigations will agree that a major focus of the Investigator is upon past practice.  Therefore take care as to what precedents you set and be sure that the you and your company can live with them in the future. 

Take the time to decide whether you are setting up a precedent that you really want to use in future employment decisions.  When an employer approaches me for advice concerning the termination of an employee one of the first questions which I ask is whether the employer considers that employee an asset or liability to the Company.  If the answer is a liability then I ask the employer if this individual were your best employee would you be willing to terminate them based upon the facts in this case?  If the employer would not be willing to terminate their best employee based upon these facts, and assuming there are no additional facts which might be used to distinguish this matter from another, then I usually recommend to the employer that they use another form of discipline that they would be willing to use against that good employee under the same fact pattern.  Again, do not tie yourself to a precedent that you cannot live with. 

Most managers risen to a higher level in the Company have shown that they have the ability to make reasonable employment decisions.  Taking the time to make a good decision and getting good advice to support it only makes good business sense.  Slow things down, take necessary action but only that, take the time to think things through, get imput from a trusted source and establish only those precedents in policy that you can live with.  It is very difficult, and sometimes impossible, to un-ring a bell.

Whatever the employer’s reason for terminating you it is important that you get that reason or reasons right at the time of the first notice of the separation, and get it in writing if at all possible, so that you may attempt to tie the employer’s hands and establish the reason(s) when all of the circumstances are fresh. While this appears to be common sense it is often difficult for an employee to ask for this type of complete confirmation at the time of the termination because so much is going on. You are hurt, frightened and many times feel betrayed by the employer and this situation is one where you probably wish to get away from it as soon as possible. You may wish to take the time to get this information for a number of reasons, immediately, so that you or anyone else may review the situation when it first occurred.

If you wait until later and ask this question then you are inviting the employer to obtain the counsel of many other people before making the response to you. What you are looking for is a written reason, at or prior to the time of the termination, from the person who is actually terminating you as to why you are being terminated so that you do not receive a later response, which could be written by the employer’s attorney, as to the reason for termination which may include all potential reasons for the separation instead of just the real reason(s) which formed the basis for the termination. If you give the employer the opportunity to set up all defenses to a termination you might never get the one real reason that you are actually looking for. There is no benefit to you and you will find it very difficult justifying in your mind how you lost a job where every possible reason for your separation is set out in front of you.  Further, when you look for new employment it would be best to know exactly why you were separated so that when a new prospective employer looks at your prior work record you may accurately describe the reason for the termination and are not faced with explaining a reason for prior separation which is provided by your prior employer which does not match the reason you thought existed and which may impact your ability to obtain a new job. Secondly, by obtaining the employer’s reasoning at an early date it may make it easier for you to have your attorney review your separation to determine if you were misused in violation of any of the employment laws. Additionally, you may find it necessary to apply for unemployment where if the Employer can establish “just cause”, in many States,  for your termination you might find yourself ineligible to draw the benefit. Remember, part of the reason for your termination might be cost savings and any benefit which you may draw will in all probability cost the Employer more money by increased unemployment premium.

You probably got a feeling from the reason given for your termination as to whether the employer is being completely truthful with you. You have the best chance at determining the truth right at the time of termination and get it from the mouth of the person who is actually terminating you, again, in writing if at all possible. If there is going to be any question regarding your termination then it is important to get an attorney involved early on and in fact prior to your actual termination. Many of the mistakes which come back later to haunt someone who was wrongfully terminated occur at the early stages before an attorney becomes involved. If you can obtain a complete copy of your employment file it would be best to do so now so that you can pretty much freeze it’s contents. You really do not want the Employer to add additional documentation to your file later even if they are doing so in good faith. The documents used in determining your termination should exist at the time of the termination as they form the basis for the Employer’s decision. It is much harder for an Employer to defend the basis for a termination where everything is word of mouth and some Employer’s may decide to only set the reasoning to writing when they see a problem has arisen. While this type of documentation makes sense when a problem arises it should be treated as that, not as something created at the time of the termination.  This is not to say that all Employer’s take this type of action, but rather, why take the chance.

Many times an Employer will wish to have an exit interview before you leave. In many instances it might be best if you do not become angry and refuse the interview.  You may use the exit interview to cooly and calmly get all of the facts of the matter including the basis for the termination as well as the name of the person who has directed your termination. Take careful notes and include all people who were present at this interview as well as what was said. Weigh everything that you are going to say as if it were something which someday might be repeated to support the Employer’s decision. Be very careful about signing anything especially at these last stages and an attorney’s advice could be valuable in this regard. If a personal contract or a Union is involved make sure all terms of the Agreement are met, by both sides, and demand that the Union defend you and your rights. Have a Union representative present at all meetings with the Company including the exit interview. It could make it simpler for a Union to disregard a member if you are not vocal with them in demanding their help. Remember that if you do not follow all of the requirements under either your personal contract or the Union contract you might have substantial difficulty in pursuing any future remedy. If Administrative remedies exist many Courts wish to see you fully exhaust them before you seek help from them and may bar you from seeking relief if you do not. States differ in their requirements under the law so it is best if you know early on what they are and remember there are Federal Employment Laws which might be applicable. You are in a much better position where you require compliance, and do so yourself, than if you are silent and complain later.  Again, the need for competent legal counsel to advise you could work in your best interests and is highly advisable.

Yes, economic times are hard and a lot of people are losing their jobs but this fact alone does not mean the reason for your job loss was proper under the law. Take the time and maintain your composure at this most painful time so that any damage which might occur to you is limited to the loss of the job itself and does impact other benefits and did not arise from an unlawful termination.  The best time for legal advice is prior to entering the final stages of a termination, not after it’s occurence, as the Attorney may be able to diffuse the entire situation depending upon all of the circumstances rather than just review the circumstances and documents after it has occured.  Even if the attorney cannot diffuse the situation you can obtain that specific advice that only an attorney who you personally hire can provide.

Categories: Employment and Labor Law.
Tags: administrative remedy, discrimination, exit interview, labor laws, prospective employer, reason for

     When an attorney handles a personal injury case they must always be mindful of the bottom line since no matter how well the case is handled and the recovery is maximized what usually matters to the client is what they walk away from when the matter is finally brought to conclusion.  People have a lot of common sense and you cannot explain to them that while you were able to recover a sum of money which is substantially greater than the normal recovery in that type of case the bottom-line recovery for the client might only be a few dollars.  If you are working on one of these hybrid cases you must have a thorough understanding of now the Ohio worker’s compensation subrogation statute works.  You will need to deal with the Bureau of worker’s compensation not only in regard to the actual payments which they have made for medical expenses but also a future projection as to what additional medical expenses will be incurred during the life of the claim, after the personal injury settlement, as well as a projection of what you might be able to recover in other ways including in a future percentage of permanent partial claim which you, or another attorney, might be making long after the personal injury case is settled.

     Damages in a personal injury case are predominantly made up of:
     1.  Present medical expenses.
     2.  Future medical expenses.
     3.  Permanency of the injury.
     4.  Present pain and suffering.
     5.  Future pain and suffering.
     6.  Reduction in Quality of Life.
     7.  The impact of the injury upon some third person (Consortium).
     8.  Wage loss both past and future.
     9.  Other forms and types of damages specific to the facts and applicable law in the case.

     Commonly, damages in a workers compensation case are somewhat different as they do not include pain and suffering, reduction in the quality of life or consortium.  This distinction is fundamental since the method of arguing the Personal Injury side of the case can have great impact upon the bottom line recovery which is had by the client.  When arguing the Personal Injury case it is important that you understand that any focus which is made on other than Pain and Suffering, Reduction in Quality of Life or Consortium may impair your ability to argue reduction in the amount of the Worker’s Compensation subrogation claim.  A Doctor who cannot provide a prognosis in a case or phrases his opinion as guarded leaves room for the Attorney to argue a poor future for the Injured party so while the absence of the prognosis does not necessarily damage the personal injury case, and a guarded prognosis might in fact help it, the opinion or lack may cause the claim for Worker’s Compensation to increase.  A Doctor who provides a good prognosis injures the value of the Personal Injury part of the case but leaves room for the Attorney to argue for a reduction in the subrogation claim as far as future expenses and permanent disability is concerned.  

     If you are dealing with a low limits policy, where the potential for actual recovery is limited by the collectibility of any judgment,  it is important the Attorney knowingly make a decision as to whether he should tactically avoid focusing the damage argument on other than Pain and Suffering , Consortium and Lost Quality of Life since a damages allocation to matters which are subject to Worker’s Compensation subrogation only operate to increase that claim by limiting your argument toward reduction.  In situations where the potential for recovery is not limited, except by all of the actual damages suffered by the Injured party, there is no real reason, of significant import, to limit the direction of argument for any viable claim.  In many instances the BWC Actuarial calculation setting value for a future Permanent partial award or future medical expense appears to be very reasonable but keep an eye on it as that could change at any time.  The focus in those situations should not necessary be on limiting reasonable subrogation since you really will be hard pressed to argue a particular form of damage and then deny a subrogation claim for that same damage.  In some instances the Attorney does not have the opportunity to be selective in the argument as the severity of the injuries themselves make the argument without the Attorney’s direction.  In these instances the Attorney might look toward a fairness type of argument pointing toward the Injured Parties failure to make a full recovery to attempt a reduction in the subrogation claim.  I do not wish to over simplify this matter I simply wish to point out that you may need to provide the person who is handling the BWC Subrogation claim all of part of your Settlement Package to the Liability Carrier in order to support your argument and obtain any substantial reduction in the BWC Subrogation claim.  I am a firm believer that you can and should fully maximize your clients Net recovery while at all times avoiding any type of fraud or misrepresentation to any other party or entity involved in the process.  Read the subrogation statute carefully when handling one of these hybrid cases and let it guide you as it has a specific method to be used where subrogation is concerned and I did not approach this Article to dissect its terms.  Further, the question of employer intentional tort or other cause of action may be involved which should also be part of any case review and those topics also exceed the scope of this Article.

     It is important that we keep in mind that the true value of a hybrid type case may lie in the Worker’s Compensation claim itself so that while we may make a tactical decision to avoid an argument favoring certain types of damages we must be careful that we do not damage the Worker’s Compensation case in any zeal to increase the recovery in the Personal Injury case by limiting the Worker’s Compensation subrogation claim.  It is a sometimes difficult balance the practitioner must be particularly aware of in order to represent a client to the best of our ability.  Often, a decision needs to be made, of course avoiding fraud or misrepresentation in all instances,  as to which claim provides the most benefit to the Client.  The caution is that a practitioner must keep themselves fully aware of all elements of an injury claim and not just with the part they are most familiar with.  There are a number of other instances where Worker’s Compensation and other causes are mixed together to make these hybrid forms and I would appreciate it if anyone could briefly share their experience or advice for the benefit of all.  It seems to me that subrogation has become an important if not major portion of many types of personal injury cases no matter how it is formed.  This area can be a real hot bed of opinion and I invite all comments.

     As an employer you are simply going to have to realize that while common sense and fair dealing with your employees is extremely important it is not the sole answer to labor related questions.  The time of using an evenhanded approach with all employees and then adding an additional level of review when you are dealing with an employee in a protected class is simply not enough.  If you are fortunate enough to have an in-house general counsel then in the past that attorney would advise you, almost as an aside, regarding labor questions.  While it is better to have an attorney, even one not specifically skilled in labor and employment law, review your employment related actions as things currently exist that itself can be a recipe for disaster.  It is simply unsafe to rely upon the advice of attorneys who are trained to handle your contract and other business related matters unless they have  specialized training in the field of labor and employment.  Your labor and employment law advisor needs to have the time and focus to keep themselves updated in this regularly changing area on almost a daily basis so that you are not simply obtaining the black letter interpretation of the law today but also you must be able to make an informed projection as to where the law will be tomorrow.  It is going to be difficult to spend assets which are greatly needed elsewhere in growing and maintaining your business in the sales and manufacturing end by reallocating these funds to areas which do not in themselves produce.  However, those expenses which in themselves do not generate income are not something which is new.  For years you have used outside tax preparers and accountants to assist you in areas outside of your practical ability to perform and knowledge.  It is my opinion that the expenses which you incur in the proactive avoidance of employment difficulties is money much better spent than just reacting to a problem which has already occurred.

     Unless you are fortunate enough to have an attorney on your general counsel staff who has the specialized training in labor and employment law you are going to need to arrange for the services of an attorney whose focus is in that field.  You really need to have a relationship with an employment attorney where you can, at a minimum, pick up a phone and call them with your employment related questions as they arise and without substantial delay.  Little is accomplished where you have positioned yourself to make a very lucrative business deal and then lose the profit, or your business itself, due to a labor related suit by a disgruntled employee.  As a business owner you should realize first the need and then make the decision of how to fill it.  Your workforce may be substantial enough and your problems with them of such volume that you may wish to hire an in-house attorney who has the special knowledge in the field of labor and employment to advise you accurately in order to avoid the many pitfalls.  In many instances the employer will not have the size or a volume of problems in this area which is significant enough to warrant the hiring of an attorney specialist to work in-house to simply service this area.  Then you will have a couple of choices to make.  One would be to attempt to hire an attorney who has the capability to act as your general counsel in those matters which are business related including labor and employment.  This will be a challenging position to fill and you must accept that this attorney will be spending a substantial amount of time each day in order to maintain their knowledge of this area of law as well as those other areas where you are seeking assistance.  Another choice would be to put a labor and employment attorney into an outside general counsel position where you recognize that your work will only take up a portion of the attorney’s time.  In so doing you can leave the attorney free to seek out other business relationships to fill up their workweek.  In that vein you may wish to put the labor attorney on a monthly retainer or choose to pay them by the hour worked.    There is  give and take in whatever the method that you choose to incorporate a labor attorney into your business process.  Where you hire a labor attorney in-house then you will gain the opportunity to step across the hall and immediately ask your question which will limit the inherent delay in the business decision process.  Again, you may wish to pay for services as they are provided on an hourly basis.   The downside to this type of arrangement is the natural inclination to avoid making the call or setting the office meeting and incurring the expense in many instances where you do not realize the potential exposure which may be incurred due to your action or inaction.  As I stated above, another possible means of dealing with outside general counsel would be to pay them on a monthly retainer basis where you have a large number of quickly answered questions which require their expertise but your requests do not close down their practice for large portions of the labor attorney’s day.  Where an arrangement is made for a set fee each month the labor attorney has an incentive to average out the services provided and will recognize the benefit of a steady source of income whether they act or not.  The employer is much more likely to use the attorney’s services and avoid problems at the outset where the attorney’s retainer must be paid whether they are used or not.  This steady payment of monthly retainer has seemed to me to provide the most value for the employer and attorney alike.  Of course, if the average use of the attorney becomes substantially higher on a regular basis then he will seek to renegotiate the retainer amount.  There may be other ways to structure attorney’s fees which are limited only by the imagination of the parties.

     What ever your decision I would suggest to you a decision should be made before the problem arises.  An employer needs access to current and accurate information regarding these labor and employment situations and actions in order to make the correct decision.  The cost associated with the defense of these matters not to mention any costs involved in an adverse finding is hard to determine so that they may be taken into account in any business plan.  A business plan which incorporates the proactive use of the attorney’s services is something which can be planned.  Avoiding the problem is always the best choice since the costs associated with defending these matters can be tremendous as not only do damages, your own attorney’s fees and court costs come into play but you also may have exposure for the Plaintiff’s attorney fees, punitive damages and other costs depending upon the source of the dispute.

    The time is past where an employer can simply treat his employees fairly and expect to have few, if any, labor problems with them.  Cookie cutter approaches are of questionable value where these matters are each driven individually by the specific facts of the case.  A proactive approach to labor and employment matters, which incorporates an ongoing plan of action and a quick response to individual complaints, would seem to me to make the most long term business sense.   Mistakes will undoubtably happen and you must be in the best position to limit damages in their wake and delay in taking action or making a decision can be the difference between just correcting the error at a minimum cost and facing a full-blown legal action.  The Internet is available to almost everyone and Employees are, for the most part, extremely well educated in their rights.  Your business is too important to base its continued existence upon a roll of the dice.

     If you were injured in a work related accident in Ohio and you had no problems with your workers compensation claim you may not have become aware of the fact that you are entitled to payment for any permanent injury which you sustained related to the allowed conditions in your claim.  There are few employers who will take the time to advise their employees that if they file an application for permanent partial disability they may be entitled to a payment of compensation.       We must remember that this is a cost associated with the claim that goes into the calculation of the amount of insurance premiums which the employer will pay each year.  Therefore there is no incentive for an employer to speak to the employee about these matters.

     A benefit that a “good employer” gets from treating his employees well shows up when the injured do not feel the need to seek out an attorney to advise them in regard to their workers compensation case.  If the employer sees that temporary total disability and medical expenses are paid to the injured worker then the employee is many times satisfied and does not look further unless they have information they might be due additional compensation.  Further, in many cases, the employee feels they are being disloyal to the employer by filing the claim or seeking any additional compensation.  I do not see where loyalty would be involved as it appears to me to be more of a business decision than one of loyalty but again it is a personal choice.

     That is not to say that in each and every case an individual may be entitled to additional compensation beyond a wage loss type reimbursement and their actual medical expenses, but how will you know unless you ask?  Some employers go so far as to advise their employees that they will take care of them and there is no real need to have anyone else involved in their claim.  Let us give them the benefit of the doubt and say that their intent is pure and they really do simply wish to help their employees.  The employer will often pay their fair share of the costs associated with the claim and then hopefully get the employee back to work as soon as possible and as cheaply as possible.  The employer may see the entry of your attorney in the matter as a complication which they would rather avoid.  Keep in mind the employer probably has an attorney to advise them.  While the people in charge of the Workers Compensation system will provide you with some information they are limited in what they can do for you.  They are not attorneys and are not permitted to provide you with legal advice.

      Undoubtably, there are some employers out there who actively seek to disuade their employees from seeking the advice of an attorney for reasons other than increasing any complexity in the workers compensation claim.   After all, there is more than just an indirect benefit to the employer when the employee does not increase the cost of the claim by filing for additional compensation.  Further, the facts surrounding the claim may merit other forms of compensation and/or benefits which both the employer and the employee might not be aware of.  Remember, the employer does not have an obligation to the employee to fully educate them in the Workers Compensation process or the benefits to which they are entitled.  Employees are, in many instances, familiar with Health Insurance where they are provided with a booklet which simply and clearly describes the obligations of the carrier.  In Workers Compensation there are pamphlets available but you usually need to know what to ask for in order to obtain them.

     If you have a permanent disability, in any measurable amount, you may be entitled to an additional amount of compensation due to this permanent disability.  You do not need to be impaired to the point that you are unable to work and in some instances the permanent disability which you suffer from may be something that is barely noticeable to you if at all.  Often an inury will limit the range of motion of say your arm or your spine.  Once you become accustomed to this loss you may think little of it.  This loss could very well be compensable to you.   Take note that it is not mandatory that you have an attorney in order to file this application but it is advisable to have one since they understand the process.  The workers compensation fund is established for the benefit of the worker but you will be paid nothing more than what you are due and in many instances you must actually apply for a particular benefit.  If  you are dealing with a “good employer” then they will not begrudge you making an application for permanent partial disability for the permanent loss which you sustained in the course and scope of your employment with them.  The work which you provided caused the disability which you sustained.   You performed the work for the employer’s benefit so you are not seeking anything for which value has not been given.

    Some workers have the misconception that if they file for permanent partial disability they will be settling their claim and they do not wish to do that.  However, this is not the case and the claim will will remain, at least for a period in time as stated in the law, open unless you take steps to actually settle it.

     If you have any question please seek counsel from an attorney competent in this field to obtain any additional compensation to which you might be due.  Many attorneys will waive any initial consultation fee in these cases since most take a fee contingent upon recovery.    Remember,  you are the one who will live with any lingering after effects of this accident.