Calling All Employers: Don’t Be This Guy!


Calling All Employers: Don’t Be This Guy!

By Robyn McKibbin, Esq.

This article was originally written for Stone | Dean’s At Issue Newsletter, Fall 2016. You can find the entire issue, as well as our library of past At Issues, by visiting the link here:

Stone | Dean recently obtained a six-figure arbitration award on behalf of a wrongfully terminated employee, plus attorney’s fees and costs. Stone | Dean advises employers on how to avoid employment disputes and aggressively defends them if litigation cannot be avoided. This case was a textbook example of how employers should not behave.

Our client (“Jane”) was hired for an AP/ AR position and general HR duties. Her immediate supervisor was the company owner (to protect the “guilty” we will call him “Joe”). A second supervisor was the company’s outside accountant (CPA). Jane was classified by Joe as exempt but spent the majority of her time running errands for Joe, i.e., picking up prescriptions for Joe and his mother, washing Joe’s car, paying allowance and bills for Joe’s daughters. Jane did not have any issue performing Executive Assistant tasks. However, a considerable amount of overtime hours was required to complete such tasks, which exacerbated Jane’s multiple sclerosis. But Joe did not like Jane leaving work at 5:30 p.m. to attend doctor’s appointment to treat her MS. His temper tantrums caused her to stop treating during the week.

Jane’s HR duties were essentially limited to creating employee files. She did not create policies or procedures, hire or fire employees, or set pay rates. Joe created all of the office policies and procedures most, if not all of which were unlawful.

Throughout her employment, Jane raised concerns about the company’s policies and practices and was repeatedly told not to “rock the boat” or “go against the grain.” Her complaints about wage and hour violations and health and safety issues were met with open resentment. Joe wanted things done his way and did not like being challenged. He often barked that she “works” for him; not the other way around.

In addition to the arbitrator ruling Jane was misclassified entitling Jane to overtime wages and penalties, Jane also prevailed on her sexual harassment/hostile work environment claim. Jane was “tasked” with reviewing and organizing Joe’s personal and business email accounts. That alone would not be problematic, but the accounts were riddled with pornographic material and Joe knew it when he instructed Jane to “archive” them. Joe emphatically testified during arbitration that Jane was instructed to save the porn and not delete it.

Joe also made numerous inappropriate comments in the workplace. During a job interview, Joe asked the candidate whether she would change her name. When she inquired “Why?” he replied, “Because it sounds like a terrorist’s name.” The applicant’s name was “Isis.” Further, when Jane asked Joe how the interview went, Joe replied that she was not a qualified candidate because she was black.

Joe also said things like “Mexicans don’t know anything” and “cannot speak English”; he made anti-Semitic comments and several “jokes” about President Obama based on his race. Notably, Jane is Mexican. Her children’s father and former in-laws are Jewish and her brother-in-law is black. Joe’s “jokes” were found subjectively and objectively offensive.

Jane spoke to the CPA about Joe’s inappropriate comments in the workplace. The CPA told Jane that she had counselled Joe to no avail.

Jane also proved that she was wrongfully terminated. Joe terminated Jane after about six (6) months of employment claiming they had “communication problems.” At arbitration, Joe alleged that Jane was terminated because of performance problems. However, no performance issues were documented. Further, Jane had a 90-day performance review and was given a raise. Joe then argued that she was fired because she made defamatory statements about him to one of his clients. Neither argument was credible.

The evidence showed that after her termination, Joe asked CPA whether she thought the company may have exposure for terminating Jane. CPA thought there was some risk. In an effort to try to intimidate Jane and dissuade her from pursuing any claim against the company, Joe instructed his attorney to send a cease and desist letter. Jane was accused of disclosing confidential financial information to other employees and “perhaps also to nonemployees.” No specific information was referenced. No employee or nonemployee was identified. At arbitration, the company did not present any evidence of the purported disclosures. Joe also failed to articulate any information that was allegedly leaked.

Joe did one thing right in the lawsuit. He agreed to participate in an early mediation before costs and fees began to mount. Unfortunately, Joe did not participate in good faith. If he had, he could have settled the matter for a low five-figure number. Instead, he’s out tens of thousands of dollars in attorney’s fees, arbitration costs and fees, and now has to satisfy Jane’s high six-figure judgment.

The “takeaways” should be obvious. If not, you’d best call Stone | Dean’s Employment Law Practice Group immediately!

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