The Employee Free Choice Act.

Posted By on March 11, 2009

Over the past few months you have probably had an opportunity to hear more than your really wanted to hear about the Employee Free Choice Act referred to often as the EFCA, or “card check.  Employers are speaking about the EFCA like it is the worst thing that could happen to their business and to their employees.  Unions speak about the act as if it is something of the greatest benefit to all.  As much as this matter has been hashed over by both sides I would like to take the opportunity to speak practically about this.  As an attorney I have represented a significant number of corporations and on one occasion I was involved on the periphery of a union’s attempt to organize.  Prior to becoming an attorney I worked in blue-collar work at a factory, where I worked 11 years, and there was a well-established union.  I even served as president of this small local of about 140 union members for a term of a year.  Therefore I have the benefit of seeing both sides of this question.  I know the kind of pressure that can occur in a factory or construction setting to go along with the other employees and not rock the boat.  Everyone is trying to get along, for the most part, because so much of your life is spent working with the other employees.  You must depend upon each other to get your job done and for your own safety so this camaraderie is something that is built right into the work force by necessity.

My father was a millwright working in a factory during the latter part of his working career.  But he applied a trade which he learned in the coal mines of West Virginia where he worked for over 20 years of his life as a younger man.  His stories about union organization were heartfelt and compelling when he described the conditions that he worked in before the coal fields, where he worked, were organized.  The union there was a necessity of life and while questions of wage and benefits were a part of the reason for organizing they were not the only concern.  There were real questions involving mine safety and the treatment of workers as human beings which were a strong concern.  The safety laws were not enforced and the worker was imposed upon on a regular basis.  Most of the workers life was controlled by the Company since the Company provided, in many instances, a place for the worker to live and issued script for wages which could only be redeemed at the Company’s store.  These workers needed a strong union to speak on their behalf because individually they had no power over their circumstances.  It is from this southern area of West Virginia that many of the stories of destruction and murder involved with union organization arose.

In 1935 the National Labor Relations Act was passed and it impacts the day to day dealing between the Company and the Employee’s by making union representation available and providing safeguards, for both the Company and the employee, in its application.  http://www.nlrb.gov/about_us/overview/national_labor_relations_act.aspx 

 It is not my purpose in this writing to provide a history of the labor movement but for reference purposes I have provided a link to a copy of the the National Labor Relations Act.  While the NLRA is not the sole provision regarding this matter I am looking no farther than it in regard to our discussion today.

 The union can be a good thing for both the employer and the employee when both are fair-minded and keep a mind to the fact that if an employer has a business which begins to become unprofitable it will probably cut back on benefits or wages and may close.  With the current state of our economy even a well-run business has no guarantees of continuing.   However, it should be the worker, without pressure upon him/her, who should be in a position to make the ultimate decision as to whether to unionize or to remain unorganized.  They should not to be set upon by a union representative who has particular skills to bend an argument or a person in a particular way when an opportunity to further reflect is not provided to the worker.

My greatest concern with the EFCA concerns the provision where the union only needs to obtain a majority of signatures to become a bargaining unit for a group of individuals.  At present in order to have the opportunity to vote upon a union 30% of the workers need to indicate their interest in being represented by a particular union.  When the votes are cast it only requires a majority in order to certify the Union.  There exist many safeguards in the NLRA which protect the employee’s right to both education and from an employer’s actions which overreach and chill this process  It seems to be a poor trade where you take the educational process out of the organizing campaign and provide a quick fix to a situation which is not really broken.

I think it is important that individuals have the opportunity to make a good clear decision as to whether they want a union to represent them when dealing with the employer.  An opportunity which is presented while under pressure is no real choice at all.  It is clear that pressure  could be brought to bear upon individuals one at a time in order to obtain their signature.  The system as it now exists provides the opportunity by means of a process where the union and the employer can both provide information, both pro and con, as to how a union will help or hinder the work force.  In order to make a decision people should have the opportunity to be fully educated in the choices and the impact of any choice which they make.  That is not provided by the EFCA.  This process of educating the worker cannot occur when by a simple majority a union can become certified as the bargaining unit for a group of workers without giving the workers an opportunity to  anonymously make their vote.  For an idea to survive and be strong it must be able to survive the counter argument and if the choice cannot survive a close look then in all probability it is something that the workers really did not want.  I believe  the bottom-line question is whether the workers think that they need a representative in order to deal with the employer in a constructive manner. 

Throughout this whole discussion little consideration is given to the employer who pays the wages and provides the workplace.  If a union comes to his place of business the employer still maintains the ability to sell the business, or close it down, and move on.  While the ability to move on has some restrictions, known commonly as a “runaway shop”, there still exists a lot of leeway for the employer to work within and when they are not given an opportunity to even participate in the process this may become even more of a concern.  Under current law if the Employer wishs a particular union it need only agree to be bound by the results of the initial signature petition and if a majority of the workers sign then the union is certified without ballot.  On occasion this provision has been subjected to some scrutiny as it provides some opportunity for collusion between the employer and the union. 

By its very name, and the general understanding of people for the purpose of its being, a union describes a group of individuals working in a concerted manner to obtain a goal which is in keeping with the majority opinion.  How can this group survive to work together meaningfully if they are  pressed upon to enter into the union without giving due consideration to all of the facts?  Naturally, it is hard to give credence to the employer’s arguments against the EFCA because of the well-known distaste which employers have for unions.  Therefore you would assume the employer would be against any provision which made organization easier.  It is also well known that unions have an agenda which bases their strength upon the size of their membership and therefore anything that would ease the burden of having a union certified in the workplace would be to their advantage.

The employee fair choice act is a poor bargain for both the employer and the employee and the only one winning is the union which is seeking recognition.  In order to be a true union it must have the support and cooperation of the workers and if they have been pressed into making a poor choice then the representative union will have neither.  The employer is being entirely sidestepped in this process and has no place in educating the worker regarding the issue from their standpoint.   If the EFCA is passed I would expect  the question of de-certifying a union will come up on a much more regular basis.  I exerpt from the NLRA reference above as follows:

(e) [Secret ballot; limitation of elections] (1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and labor organization made pursuant to section 8(a)(3) [section 158(a)(3) of this title], of a petition alleging they desire that such authorization be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

The question of whether the bargaining unit really supports the union has the potential to reduce the strength of the unions bargaining position and make the employer reluctant in its dealings with the union.  Our Government has more than enough problems on its plate that it must address and I think this effort to fix a clock that is not broken is both ill-advised and ill-conceived.  I really do not expect the EFCA to pass muster in the Senate as I believe they recognize that the time they are spending on this matter could be spent more profitably elsewhere.   As always I invite your comments.

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Employee or Independant Contractor?

Posted By on March 5, 2009

When I sat down to write this I thought that I would bring the various laws together to discuss the physical distinction between an employer  and an Independent Contractor.  However when I went out on the Internet and looked to see what others had been doing it appears there are a large number of checklists, quotes and articles tearing apart and explaining this distinction. What I would like to do here today is briefly speak about the impact of the actual status upon the Independent Contractor, contractor, employee and the employer.    The question of whether someone is an Independent Contractor or an employee is becoming more and more of a controversy.  What I would like to do is develop this theme over time and approach it from a number of different directions.  While I do have a general concept in this I would like to take this opportunity to ask readers of this article to provide some suggestion as to where you would like to see this discussion go since ultimately you are the target.  It would be really great if employers/employees and independent contractors/contractors were to communicate with me, in the comments section for this post,  to provide more balance to the article.   

Just a few years ago worker’s compensation insurance premium was in most instances about 25% of what it is today.  Businesses are cutting to the bone trying to survive our current economic plight and they are looking at things like overtime, payroll taxes, workers compensation premium and a multitude of other items.  Each of these items, and many more, distinguish the costs of an employee versus an independent contractor.  These costs are part of every job and product which is built and if the builder/contractor can shift all or a majority of them to someone else then it increases their potential for profit.

Even as our economy seems to fall apart agencies more closely focus upon the accuracy of the contractors designation of an Independent Contractor.  The fallout from this close scrutiny provides more and more protection for the employee which protections are not necessarily offered to the Independent Contractor.  There was a time and it wasn’t too long ago that an employer could have a Worker sign a written Independent Contractor agreement, provide the worker with a 1099 and not provide a timetable for the times when an employee had to be at work and begin to establish a fairly decent position to argue that the employee was an Independent Contractor. You could basically take a checklist, pretty much the same one the IRS used to determine Independent Contractor status, and structure the basis for establishing the Independent Contractor relationship so the employer could be fairly comfortable in the designation.  Times have really changed and the Independent Contractor designation is becoming much more difficult to prove out and the total reliance upon a checklist is probably misplaced by both of the parties.  Audits by the Ohio Bureau of Workers Compensation, the Ohio Department of Job and Family services and others often call into question the designation by looking beyond what is said in the Agreement and what is done administratively and cut down to the actual practices between the Contractor and the Independent Contractor.  However, the benefit of establishing the Independent Contractor status is so great that a contractor is still willing to run that fine line between Independent Contractor and employee taking on the potential for fines and repayment for past unpaid benefits in the process.

This question should be in the forefront of the minds of not just the employer’s but also the workers.  A worker who has been designated as an independent contractor is not just having some intangible right taken away from them but is really having money taken right out of their pocket.  This is not just some question for debate but something that is impacting every worker who is currently classified as in Independent Contractor. This worker will have to come up with 50% (self-employment tax) of the amount paid for Social Security and Medicare out of his wages each year.  At the same time that worker, if he wants some protection, will also need to find the money to pay for his own worker’s compensation coverage and he must provide this coverage for those who he employs, unless they also are Independent Contractors.  You have undoubtedly heard about the Fair Labor Standards Act and other federal and state based, minimum wage laws and other wage regulations, rules and orders.  When the employer/contractor is dealing with an Independent Contractor he does not have to worry about paying that contractor a minimum wage, unless prevailing wage controls the job site, since he is not paying for the number of hours worked but rather the completion of a particular job.   Neither does the general contractor need to worry about overtime payment, except for his own employees, again because hours worked are not the concern.  The Independent Contractor also needs to obtain some type of liability insurance to cover his actions at the job site should he injure some third party or cause property damage and in many instances the Contractor will require proof of such insurance before he hires the Independent Contractor.  The list goes on and on showing the burden to the Independent Contractor that he would not have to bear if he were an employee.

As I have stated the employer must bear all of these costs if the person is an employee.  I really do not think it is fair to look at the Contractor and assume because they are the main hirer on the job that they can necessarily bear the financial burden themselves.  It is not unusual for a General Contractor to have only a few real employees and rely upon his ability to hire Independent Contractors to meet the work goals in any project.  And when they are bidding a job if everyone else is hiring Independent Contractor’s to fulfill the agreement they are probably going to have a competition problem when they make their bid if they are not doing likewise.  The real key being the Independent Contractor’s ability to perform the work at a charge less than all of the cost’s of hiring an employee, supporting and managing him.

There is a real purpose and need for the Independent Contractor classification and as long as it is truly a clear Independent Contractor situation a great deal of benefit can be obtained by both parties.  An Independent Contractor probably provides his services to many contractors doing a job here and a job there in order to fill their day or their week with work.  If they were truly an employee then if the employer did not have work they would be laid off or carried by the Employer at a cost.  Further the Independent Contractor is in a very good position to contain his costs and become particularly proficient in a narrow niche area and by doing so to maximize his profit.  The real problem in these type of agreements comes where the contractor who is  hiring the Independent Contractor wishes to have his cake and eat it too by imposing more control upon the Independent Contractor than is permissible to maintain the distinction.  This lack of control is one of the primary downsides to hiring an Independent Contractor.  The contractor must wait for the Independent Contractor to perform his job, within the terms of any agreement which they have between them.  It is often difficult for the contractor to specify exactly when they will need the independent contractor which makes it difficult to provide a certain date, in any oral or written agreement between them, for the Independent Contractor to perform their services.  The limitation of control over the Independent Contractor is certainly not a benefit to the Contractor because the more control he has the easier it is to keep a job move forward without interruption.

Then you have a bad economy, especially in the construction business,  and many of the Independent Contractors are fighting for the shrinking amount of construction work which is still going on.  The general contractor  needs only set back and let the  Independent Contractors fight between themselves cutting their bids to the finest of margins in order to obtain some work to fill their week.  On the upside if an Independent Contractor is particularly proficient in what he does then he may be able to charge a premium for his work which might not be available to a general employee.   Even if the Independent Contractor cannot charge a premium if they are proficient a premium is built in where they are able to do the work more quickly than another and get more jobs done each week.

Things are not all glossy for the general contractor either.  The State and Federal Government is looking closer and closer as to whether the worker  is indeed an Independent Contractor.  Not necessarily just to protect the worker but also to make the revenue stream from payroll taxes and other employment related charges be more stable.

When it is all said and done the rules imposed in maintaining the distinction between and Independent Contractor and an Employee are a protection for those individuals which as I stated above can provide benefits to both parties in the relationship and likewise impose some burden.

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Workers Compensation and Statutory Subrogation

Posted By on February 27, 2009

If you have been injured in an automobile accident while at work you may have an obligation to pay back any sum of money which was paid for your medical expenses or other costs which the Ohio Bureau of Workers Compensation or a Self-Insured Employer has paid to or for you.  This repayment right is generally referred to as subrogation.

In many instances the Bureau does not immediately realize that you should be paying them back out of your settlement but that does not let you off of the hook.  If you are not careful you might hurry to settle the case and not be aware of this obligation yourself.  You might think that the Bureau has just missed it and think that you will not need to pay them.  If you do not handle this matter properly it could be very costly to you and you cannot count on the Liability Carrier to watch out for your interests.   In most, if not all, releases which the liability carrier has you sign when you settle your case there is a paragraph which requires you to repay them if they incur any liability when they pay you for your injuries.  Therefore, if the Bureau comes to you for repayment, or later sues both you and the carrier, the carrier will probably file a claim against you to indemnify them if they are held to be liable to the Bureau for repayment.

The Ohio law concerning this automatic right of repayment may be found at ORC 4123.931.  I highly recommend that you hire competent legal counsel to help you in these type of cases so that you do not proceed to settle the claim and then find out later you must repay someone out of the money which you have received.  You could be in the position later where because of your actions you wind up giving the Bureau a good part of your settlement from the accident.  While we are talking about it you probably have a obligation to your own health insurance carrier to pay them back if they have paid any of your medical bills.

Sometimes the Bureau of Workers Compensation will pick up the information that this is a subrogated claim and send you a notice telling you what action you should take.  Other times the Bureau will not become aware that this is a subrogated claim.  In either instance you still may be liable to the Bureau and it is simply not worth it to take such a chance on losing what money you might have received.  If you approach the Bureau about the settlement before  you actually settle the case then you may have the opportunity to work it out with them.  For example, you may have a case which has some problems with it where the Bureau may agree to accept a lesser amount of the money which they are owed.  However if you approach the Bureau after the case is settled you have already given up part of your bargaining power with them.

You will see that I have recommended to you that you hire an attorney.  There is no way that I can express this opinion without seeming to be self serving in this recommendation but it is something which needs to be said.  There are a lot of things the do-it-yourselfer can do in life but this is really not one of them.   It may be some help to you in making your decision regarding hiring an attorney to know that most attorneys will hire an attorney to represent them in their own personal matters especially if the legal question is outside of their area of expertise.

I did not prepare this article in order to convince you to hire an attorney.  The bottom line here is that you need to know what you are doing in these matters and to be sure to discuss the question of subrogation of the Bureau of Worker’s Compensation claim for repayment fully with the attorney which you hire to represent you.  I would certainly invite comments to this Article.

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Is a Workers Compensation Permanent Partial Award really permanent?

Posted By on February 27, 2009

          I have been working in the field of Ohio Worker’s Compensation for about 18 years now.    Recently, I became involved in a case where the Bureau of  Worker’s Compensation is looking to set aside an award which they made two years ago for a percentage of disability ( this particular matter deals with a functional loss of use of a body part without amputation).  This award was made under Ohio Revised Code 4123.57 (B) which is titled Partial Disability Compensation.  This seemed to be a rather unusual matter so I checked into it with other Ohio attorneys whose practices centered in worker’s compensation and they had never heard of the Bureau taking that type of action for this type of award. 

          Ohio Revised Code 4123.57 (Partial disability compensation) basically provides for the recovery of a percentage of “whole person” disability under two statutory themes.  The first, under ORC 4123.57(A), involves an actual percentage of disability which is calculated using the American Medical Associations Guides to the Evaluation of Permanent Impairment 5th ed. to provide a determination of the percentage of permanent disability which has been suffered to the Injured Worker’s whole body due to the injuries allowed in the Claim.  The second theme, found in the same Section of the Statute under ORC 4123.57 (B) which sets the value, expressed in weeks,  for parts of the body which have been amputated or, as construed by the Courts, which have suffered such damage that they are of no functional use.  Under the second theme if some incidental use still exists an award still may be granted.  It is under this second theme and under its functional loss portion that the matter which we are discussing is concerned. 

          It is not unusual for the Bureau to try to terminate permanent total disability where circumstances have changed and a person becomes able to work again.  Ohio Revised Code 4123.58 which is titled Compensation for permanent total disability controls these type of awards and they are much like Social Security Disability since they require a person to be unable to work (at least not significantly) in order to qualify for the benefit.  In fact, there is an  Ohio Statute, found at ORC 4123.52, which gives the Industrial Commission, which is a branch of the Ohio Bureau of Worker’s Compensation,  “Continuing Jurisdiction” so they may reopen a case under certain circumstances.

          In this particular matter the Bureau is alleging “new and changed circumstances” as the reason for their exercise of continuing jurisdiction to re-open and set aside this award for total loss of use of a body part.   However, in this case it is not a question of being able to work, which is the central question in terminating a permanent total payment.  The question here involves an alleged improvement in the current percentage of disability from that which existed at the time of the original award.    There is no question that at the time that the award was given the Injured Worker was entitled to it.  A Partial disability compensation award is given measured on the date of examination, or other date during the application process, without concern for a persons ability to work.  In essence, the bureau awarded this Injured Worker a sum of money for his functional loss of use of a portion of his body at a particular place and time. 

          I can understand that if an Injured Worker is being paid on a regular basis because they cannot return to work and then that worker becomes able to work that the Bureau might be able to inquire into and if proper stop future payments.  Permanent Total Disability also provides that a person must remain qualified to receive current payments.  The injured worker is well aware of this continuing requirement concerning the extent of their disability and accepts their payments with the understanding that if they ever physically improve sufficiently they may be disqualified from receiving future payments and they are really not entitled to receive payments from the time that they become able to work gainfully.

          This is not the case where an injured worker has received an award of Permanent Partial Disability.  The injured worker receives a one time lump sum payment, in the majority of circumstances, and does not have an opportunity for any additional payment unless their condition worsens causing them additional disability.  In many instances where the injured worker seeks an increase of permanent partial disability they must present their own doctor’s opinion to establish their condition has worsened since the last such award before they may even file the application for an increase in permanent partial disability.    But in those instances the worker will still be examined by a doctor hired by the Bureau for purposes of determining their current percentage of disability to determine if they are entitled to any additional award. 

          As an example of how this new policy might work against an injured worker who might be seeking an increase in permanent partial disability.  Assume that the Injured Worker has received an initial payment for permanent partial disability under their claim.  Then later that same worker files for an increase in their permanent partial disability.   Then the injured worker is examined by the Bureau of Workers Compensation again and a determination is made regarding that persons current percentage of disability.  If the injured worker has an increased disability they may be entitled to an increase in the permanent partial disability to which they are entitled.  However, if the doctor determines they are entitled to a lesser percentage of disability does that mean that now, because the Bureau of Worker’s Compensation decision to change their policy, they could be required to pay back any difference to the Bureau?  Remember, any additional award is just that and the worker is not entitled to be paid twice for the same percentage of disability for which they have already been paid in the prior award.   The amount of prior disability is taken out of any subsequent award before it is disbursed to the Injured Worker.  What a risk the injured worker could be taking in attempting to assert a right which they believe they might have for an increased amount of disability.  Even when the worker’s own doctor has provided a report which states increased disability since the last award they may face a ruling at hearing finding a lesser disability.  It would seem a fairly simple procedural matter for the Bureau of Worker’s Compensation to wait out the appeal period, where a finding of a lesser percentage of permanent partial disability issues, and then file a Motion for an Overpayment under the first award of Permanent Partial Disability based upon the new lesser percentage of disability finding.

A New Ohio Workers Compensation disability policy is appearing.

          The Bureau of Workers Compensation now alleges the injured worker regained a portion of this functional loss of use and therefore is not entitled to the entire award.  This raises some very interesting questions for the injured worker and attorney alike.  Most attorneys who work in his field are paid by taking a percentage of the permanent partial award as their fee.  The attorney takes this fee at the time of award and then disburses the remainder, less any costs involved, to the injured worker.  If these awards are not permanent and a client recovers from the injury, after the award is made,  will she need to pay back the entire percentage of improvement  to the bureau of worker’s compensation.  This would also include a portion of the Attorney’s fee which was based, in most instances, upon the entire amount of the initial award.  Of course if fraud, mistake or potential other very limited situations are not involved then the obligation to repay any sum would be charged against the receipt of future benefits.  (and then only against some types of benefit).  Still I do not think that an injured worker will appreciate the fact that at a time when she needs the help of full worker’s compensation benefits, in the future, those benefits could be reduced for a period of time until she has paid back any sum that the Bureau of Worker’s Compensation has determined to be an overpayment.   This matter seems to be one which could have substantial impact upon practitioners and injured workers alike.   As an interesting note there could also be an impact upon the Bureau if this increases Motion practice and litigation.

What could be the impact of this “New Policy” initiative to the Injured Worker or the Bureau of Worker’s Compensation itself?

          It seems to me that if the Bureau of Worker’s Compensation is going to take these type of actions that it will discourage people who are injured at work in attempting a full recovery from their injuries.  That is not to say that an injured worker will not attempt to recover from the injury but rather it could discourage them at a time when they could use all of the support which they can muster.   Further, it could easily discourage a worker from seeking an increase in their prior disability award where a new decision could put them into a position where the new disability determination causes the Bureau of Worker’s Compensation to obtain an over payment order against them for the money which they have already received.  Additionally,  it raises a question regarding the fee which the Attorney earned in the initial determination of percentage of disability if that award is then later reduced.   The question of finality to any judgment is raised in this scenario and it does not have a good answer to it.  In prior use the exercise of continuing jurisdiction by the Ohio Industrial Commission (which itself is the enforcement arm of the Ohio Bureau of Worker’s Compensation) seemed to be mostly limited to providing oversight over Permanent Total Awards, to permit an increase in Permanent Partial Awards, to permit book keeping and other error type corrections and to my recollection for other minimally intrusive reasons.  There is no real problem where the Commission is using its “continuing jurisdiction” when dealing with mistakes or fraud since for those situations it only makes common sense that a tool should exist, with reasonable limits upon it, to provide fairness to the process.  After all the State Fund should not have its funds stripped away wrongfully and it is not the Lottery. 

          The Bureau of Worker’s Compensation itself is buying into an area of extreme controversy if it claims it now has continuing jurisdiction to redetermine, at any given time for as long as the period for continuing jurisdiction may be exercised, many of the prior permanent partial disability cases which it has determined simply upon the basis of the existence of “new and changed circumstances”.  In effect, a finding in this case adverse to the injured worker, will also provide a definition for “new and changed circumstances” which includes a decrease in the current percentage of existing physical disability as one type of new and changed circumstances which is actionable.  With the four-fold increase of Worker’s Compensation premium over the last few years I would expect many Employers to be very interested in the outcome of this matter.  After all, percentage of permanent partial awards make up  part of the claim expenses which go into calculating their insurance premiums.  I also wonder if the Bureau Actuaries who calculate the reserves which are to be set on each claim will also be considering the estimated recovery rate for particular types of injury as well as any future expense reductions which occur when over payments are set off against future benefits.   This could be the birth of a new legal niche triggered by these future “Decrease in Permanent Partial Disability Cases” ?   I would really be interested in any comments which anyone has on this subject.

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Employee Performance Evaluations

Posted By on February 21, 2009

The time of year for annual performance evaluations has probably passed and you were given a fairly favorable if not excellent performance evaluation at least as far as what was put in writing.  Your manager might have spoken to you about areas where you could use a little improvement but that is probably not reflected in the written evaluation or  it was so downplayed that you do not pay very much attention to it.  Now with the uncertain economy you have been hearing rumors of a layoff of employees which might be coming but you know that  because of your performance evaluations that you have little reason to fear the loss of your job.  You know in the past that the Company has always determined layoffs based upon performance rather than seniority or for some other reason.  A short time passes and a meeting is held or you receive a letter and you find out that you have been selected for layoff out of the group of workers which make up your department.  You have been informed the reason for choosing you for termination is your sub-standard performance in the department.  You say that cannot be as all of your performance evaluations were above average, excellent or outstanding and you have never been disciplined.  You realize that if the manager gave you areas to concentrate on for improvement that you have been working on them and the manager has not indicated dissatisfaction or he has indicated approval. Now as an employee you try to think of the real reason why your employer has selected you to be terminated.  The only thing that comes to mind is that you belong to a racial minority or you have spoken out in favor of the union, maybe you have complained about something which the Company has done to you or another you think is unfair or many other reasons which are not performance related.  As your mind keeps rolling over all of the real or imagined reasons that the Company is treating you this way you begin to think that you been treated unfairly. You know that the real reason cannot be your performance so you start trying to find out the real reason.

In our current economic times this story is probably playing out on a regular basis throughout our country.  The laid-off or terminated  employee now must deal with a job loss and financial uncertainty.  Now added to that the employee cannot justify in their own mind the reason for their job loss.  The employee expects that their performance evaluation was done accurately so they can only assume there is some other reason for what the Company has done.

As a labor attorney who finds myself dealing with these situations the area of performance evaluations is often important in determining whether there is some support for an employee’s claim they have been wrongfully disciplined or terminated.  Sometimes the Company loses sight of the purpose for the performance evaluation and they become simply another task for a manager to perform. Many managers do not wish to indicate poor performance by the employee since they must work with them on a daily basis and it also reflects upon their department.  These managers understand that if an employee has been performing substandard work they will need to take some action or risk a reprimand by their own supervisor.  For whatever reason the manager does not wish to take any action.  Many managers are not correctly trained in the method and purpose for the performance evaluation and downplay the importance of it.  Therefore rather than risking a confrontation with the employee or a comment from upper management regarding an employee’s performance the manager simply rubber stamps the performance review with above average or excellent marks and hopes to work through any problem, if one does in fact exist,  in a more informal manner.  To be fair to the Company there are some employees who have performed their work in a poor manner but because of the faulty performance review process the records which they themselves generated do not support their position.  To be equally fair with the employee they have given part of their life to their work and deserve to be given a truthful reason for their Separation from Employment.  Whatever the excuse the employee now has every reason to believe the Company is not being truthful in the way they are dealing with them.

If you are an employee who has been provided with above average or excellent performance reviews over a period of time and then you find yourself terminated or disciplined with one or more of the reasons stated for your termination as being poor performance then it would be only reasonable for you to think that there is some other reason for your termination. You have a number of choices and decisions to make and you understand that what ever action that you are going to take, if any, you must do so quickly.  The Company may have provided you with some form of severance package and asks that you sign a release in order to get it.  If you have a close relationship with your immediate supervisor you might inquire of them and be satisfied in their explanation to you.  You also might approach the Human Resources Department to question them.  If you have access to someone in upper management you may take the opportunity to inquire in that direction.  Or you might question someone else in the Company where you trust that their response will be accurate.  If you are satisfied with the answers, assuming anyone was willing to speak with you,  that you receive then you may stop there, if you believe the people that you spoke with, and go on with rebuilding your life.  If not, and you decide to take this matter farther, then you must determine whether to speak with the Ohio Civil Rights Commission (or the applicable State Agency in your State), the Federal EEOC or employ an attorney.  Whatever your decision you must make it promptly as a statute of limitations may apply requiring you to take any proper action within 180 days of the discriminatory act.  In some instances, such as a discriminatory action taken related to your filing of an Ohio Worker’s Compensation claim, you are required to take action within 90 days.

As an employee if you are placed in this undesirable situation then it is important that you make your inquiries and seek competent legal help at a very early date or you will risk losing any benefit or protection which the law might allow to you.  If you are the employer you can see that it is important that the managers who will be performing performance evaluations must be properly trained so that you may rely upon their evaluation in making your determinations as to any reduction in force.  Reductions in Force can be complex and you should coordinate them with the aid of legal counsel.  In closing it is suggested to any employer that “An ounce of prevention is worth a pound of cure”.  This is a difficult time for both the Employee and the Employer and every effort should be made to avoid making the situation more difficult.

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The Business and Practice of Law

Posted By on January 24, 2009

I belong to the American Inns of Court specifically a local Inn known as the Scanlon Inn of Court.  It is a nationwide organization which is dedicated to the profession of law not just the business side of it.  When I say business side I do not mean to infer something that leaves a “bad taste” in your mouth.  I am just trying to emphasize that an attorney must deal with at least two potentially opposed concepts when he or she goes into practice.  The Inn attempts to bring both of these concepts into focus and merge them.  It only makes sense and any business coach will tell you that a business needs to move forward in a common direction with a common thought.  If your concept of business is not in keeping with your concept of professionalism it would have to detract from how the business operates as a whole.  These concepts apply as much to the Firm Attorney as they do the Solo.

The business side of law requires you to be an entrepreneur in what you do.  It is important that you be abreast of the newest marketing skills and keep an eye on your bottom line.  A great number of very intelligent people are out there who will help you educate yourself on these skills so I will not belabor the point.  If you cannot make your business viable you certainly cannot develop the “professional side” of the practice.  You must survive and learn to walk before you can grow.

Law as a profession is more esoteric.  This is where you combine your good business practices with your moral compass which I believe exists inside of each of us even the most jaded.   Law as a profession is less based upon learning and more based upon following this compass.  A person well versed in the law can do a lot of things with it and not all of it is fair or good even if it is legal.  We are constantly immersed in the concept of “Zealously representing our clients” but what does that really mean?  We would all do well to look into each our own hearts to help determine where zealous representation will lead us.  The Attorney who will do anything to win the case is the epitome of “Zealous representation” and the only caveat we impose upon him limits his actions to be within the Law and our Ethics requirements.  I believe we should hold ourselves to an even higher standard which is less measurable and even harder to implement.  We should measure every action which we take against that standard.  I will be the first to say that I do not always follow my moral compass right down to the last letter.  When the law is written which favors my client it is my responsibility and my duty to use it and do so to the best of my ability.  Still we could take that extra amount of time with our clients to indicate that while the actions we are taking are legal they are not fair.  If there exists a fairer way of obtaining the desired results then we should take the time to explore it with our clients.  We each have a responsibility to each other and to the client and public that I believe is connected in “doing right” by everyone we come across.  That concept is going to tear at us sometimes when we must pursue a course of action that hurts another in order to further our clients interests.  If we have that client that wants to hurt another just because he can we do a disservice to ourselves and our profession by being a party to it.  There simply must come a time when you reach a certain point, which is probably different in all of us, that our moral compass tells us we are not “doing right” and that should be the time when we either educate our client as to our way of thinking or divest ourselves of that client for our own moral salvation.  How many times have you heard someone tell a story of how much damage they did to someone in our justice system just by using the law against them.  Yes we need to be able to make the hard calls and handle matters in which someone will lose and someone will win but the way and purpose of our actions needs to be reviewed by ourselves.  Results matter but they are not everything that matters.

At the end of the day we should be able to at least say we did something of good for that day or say nothing at all.  I am not trying to say that I am an angel.  Winning that tough case is good for the ego and motivates us in our business but how much more so when it is done in a spirit of professionalism.  I think that just by dealing in the business in which we deal that a certain amount of callousness and lack of empathy will by necessity need to wear off on us.  Certainly if our heart is too soft we would not be able to stand up to the lack of fairness which we see in the world on a day to day basis.  Those who equate justice and fairness are missing the point of the law.  We can be fair in our overall dealing with each other but when justice is sought it is based upon a foundation of time and prior experiences.

In the end let us look toward not only the business of law but step a little farther forward into the profession which we have also chosen for ourselves.  I think most of us would not only wish to be known as a successful business person but a reputable attorney and one who tries to be fair in his dealings with everyone.  In the end fairness is the goal which should be sought and doing justice when fairness fails.  Keep in mind that everything you do for a client becomes a part of that clients knowledge of what an Attorney really is and we should not complain too loudly of the low esteem by which we are held in the public eye when we are the source of the information upon which that opinion is built.  A sprinkling of fairness in our day to day course of dealing would work wonders in our image.  We should remember that we are not just Attorneys at Law but we are also Counselors and I believe there is a difference of more that just semantics in that statement.   chuck cochran

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The Practice of Law and Giving something back.

Posted By on January 14, 2009

     Labor and Employment Law is the center of my practice and I often have an opportunity to educate my clients during the course of my representation.  Many of us do this and it does not particularly distinguish my practice from that of many of you.  However, what do we do about the “Education” of the Law Student or the newly minted Attorney?  Law School does not prepare the Student to actually go out into the community and fully understand the “How to” aspects of practicing law.  We, as Attorneys, need to take a more active role in their education.  In these days of “take care of yourself first” we often spend a great deal of time in the Attorney business doing just that. I would like to speak about something which I did last year for another, why I did it and share with you what it left with me.
I signed up with the Akron Bar Association to be a Mentor for a Law Student in their Mentor program. This is the first time that I took an Official position as a Mentor for a Law Student but it was not the first time where I “mentored” a new Attorney or have myself been “mentored”.  Over the years I have had the opportunity to share stories and advice with attorneys in wide areas of the law and my practice. I do not hold this up to a light to point at my virtues since this is something that most of us probably do. As an aside these type of interactions are often greatly beneficial to both sides and are at the least entertaining.  What I would like to point out is that the feeling of worth which comes from these types of action are greatly multiplied when you take them into a structured program such as the Mentoring programs set up by many of the Law Schools. When we provide advice on a sporadic basis to another Attorney we take with us the knowledge that we are giving something back to our profession and we establish a tenuous link with the Attorney which we helped.   This is a reciprocal process which I have often used to obtain information and advice from other Attorneys.  If you think about it there are probably many Attorneys who you know that you could  call with a question and fully expect they will help you with an Answer or at least a direction in which to look.  When advice is provided in a structured program, such as that found in a Law School Mentoring Program,  you have the opportunity to establish a strong link with the future Attorney and give yourself the opportunity to influence the actions of someone, who in all probability, will one day be part of your peer group.  These future Attorneys do not have the social links that we for the most part take for granted so what you are giving to them is cherished.
     The Medical profession provides for early stage mentoring in its internship programs but the Law does not provide for this structured type of review of the newly minted Attorney’s actions. Yes, if an Attorney fresh out of Law School goes to work at a Law Firm he will be mentored. However, the reason for the mentoring might not be totally altruistic and the Mentee knows that oversight is strongly grounded in business purpose. That is not to say that Firm Mentors are a heartless bunch, far from it, I am just saying that the advice which is given is colored by the underlying need to provide benefit to the Firm through advising the new Attorneys which have been associated with it. As most of us understand, the concept of “Secondary Gain” often rises in the course of litigation as a basis for discounting the severity of damages or the veracity of a witness. It takes little imagination to realize that a Mentee would probably incorporate a discount to any advice they receive when it comes in a business context. An additional layer of resistance will need to be overcome by the Mentor since the listener will need to answer the question of whether the advice is being offered to help them personally or being provided mostly for purposes of advancing the Law Firm’s agenda.
     It is my opinion that a voluntary Mentoring program where you advise the Law Student and you have no other association with this individual has the best chance of at least exposing someone to your values and procedures, which hopefully, are the shared values which we wish to see in our Profession.   These programs where you are dealing with the Student before he or she becomes an Attorney are, in my belief, of great import since you are writing on a fairly clean slate.  That is not to say that my goal is to create a lot of “mini me’s” out there in practice.   I would not credit myself with having that much influence over anyone, nor would I wish to.  I am just saying that it gives me an opening to speak to someone about the Practice of Law instead of the Business of Law and have the listener’s full attention and willingness to participate in the conversation. The Scenario is almost perfect since you have a speaker whose whole purpose is to help and a listener whose purpose it is to learn. It would take some stretch of the imagination to bring the thought of “Secondary Gain” into the equation to the same extent as when the Business of Law is at the least a secondary consideration in the conversation.
     These Law Students  are hungry for information and it is the obligation if not the moral duty of Attorneys who have been in the profession for awhile to give back what we have been given, as well as what we have learned and sometimes earned, to these people.
Please take the opportunity when it presents itself to help these Law Students to learn something about the Profession when you are given the chance. It can do nothing but help you in life and it will help all of us in turn.
     If you have in interest in becoming part of the Mentoring process you need only contact a local Law School and determine if they have a Mentoring program in which you can contribute and make a difference in what is “Our Profession”.   I have just been contacted by the Law School for this years round of Mentoring and find myself looking forward to this challenge.  Thank you for taking the time to read what I have written and I hope you have found something worthwhile to think about from what has been said.   Chuck Cochran

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