Dealing With Negative Employment Situations:

DEALING WITH NEGATIVE EMPLOYMENT SITUATIONS

Stetson University College of Law 22nd Annual National Conference on Law and Higher Education February 20, 2001

Jeffrey I. Chasen General Counsel & Senior Vice President, Claims/Litigation The AGOS Group, LLC Tulsa, OK

Beverly E. Ledbetter Vice President & General Counsel Brown University Providence, RI

In negative employment situations – including dismissal, reorganization or reductions in force, and denials of promotion – employees are raising claims of retaliation, infliction of emotional distress, or other wrongful conduct, and are increasingly seeking punitive damages. Through the use of case study materials (to be distributed on-site), this interactive session will discuss effective approaches and practical solutions that prevent legal disputes and send positive messages. I. LESSONS LEARNED THE HARD WAY

To a certain degree, any employer should anticipate various workplace challenges. However, a closer look at the diverse universe of negative employment situations reveals a troubling number of all-too-common ways that colleges and universities invite litigation and, too often, lose at trial. Frequently, the institution is “in the right” … but nevertheless faces the “wrong” outcome.

 Sometimes, an institution does the right thing, but does it the wrong way;  Sometimes, an institution does everything “by the book,” but ends up with a bad result;  Sometimes, an institution keeps its eye on the ball, but drops another one;  Sometimes, an institution follows the rule of law, but forgets the “Golden Rule”; and  Sometimes, no good deed goes unpunished.

Our collective experience dealing with hundreds of employment lawsuits against colleges and universities suggests at least 10 recurring themes, each of which typically results in more frequent and/or severe litigation. The following is a list of some “dumb things” that can happen, even to the smartest of institutions.

1. Dumb Thing: Don’t Follow Your Own Procedures 2. Dumber Thing: Don’t Create Procedures

Institutions generally create their employment procedures with the very best of intentions (e.g. to preserve cherished rights; to promote aspirational principles; to enhance legal compliance). Even so, many institutions frequently fail to follow their own procedures, often for very understandable reasons:  The procedures are too complex or elaborate;  The procedures reflect theory, not practicality;  The procedures conflict with other institutional requirements;  The procedures conflict with legal requirements; and  The procedures are implemented by human beings.

Still, nothing seems to inspire a greater sense of injustice (in the minds of plaintiffs, jurors and the public) than an institution’s failure to follow its own procedures … except, perhaps, if the institution intentionally chooses to ignore a risk or responsibility.

Even a failed attempt at risk management is typically superior to a conscious decision to strategically ignore an issue. If you’re in it for a penny, you’re in it for a pound.

3. Dumb Thing: No Documentation 4. Dumber Thing: Creative Writing

Some may view this issue as simply a matter of form over substance but, time and again, an institution’s failure to document can be costly. When an institution fails to document (a) what was (or was not) done and (b) why it was (not) done, everything from settlement negotiations to courtroom defense to appellate review is severely compromised.

That being said, documentation is effective only when the institution heeds the cliché: “Just the facts, ma’am.” The ability to document is a skill in its own right and, as a rule, calls for training and supervision.

Getting it right – and at the right time – is the critical challenge. Colleges and universities need to document the truth, the whole truth, and nothing but the truth. 5. Dumb Thing: React to Everything 6. Dumber Thing: Don’t Admit Anything

First things first – an institution should always seek to be proactive, rather than reactive. This principle does not require that the college or university always take some type of action, but the institutional defendant (or potential defendant) should maintain the greatest possible control over disputes in connection with its own mission.

Further, a productive strategy dictates that every action (by the plaintiff) need not result in an equal and opposite reaction (by the institution). Instead, the proactive institution focuses on the big picture, especially when the parties desire – or have – a continuing relationship (as is so often the case in the employment context).

However, despite the best of intentions, some colleges and universities on some occasions become overly focused on this point. In the name of strategy, institutions sometimes forego the expression of empathy and other acts of kindness that can do the most to prevent employment litigation (or at least make any disputes less destructive to all parties concerned).

Proactivity is completely consistent with both the mission and the operations of an educational institution. So is doing the right thing. 7. Dumb Thing: Failing to Seek Counsel 8. Dumber Thing: Relying Exclusively on Counsel

Employment litigation is famously (perhaps infamously) expensive. However, it has become apparent that generally the best way to reduce legal expense is to engage legal counsel earlier. This may seem counterintuitive, but the best lawyers know how to make themselves “unnecessary” as quickly as possible.

Institutions sometimes also fail to harness other valuable resources even closer to home. Seek the counsel of your in-house legal staff, risk management professionals and countless others on your campus with specific expertise in any given matter. An interdisciplinary team generally maximizes your ability to prevent – or, if need be, prevail in – litigation.

Colleges and universities (and largely any other institutional defendants) sometimes take this advice to a fault. Specifically, institutions have a natural tendency to rely so much on legal counsel that they essentially abdicate and ultimately defer completely to their trusted (and indeed trustworthy) “hired gun.”

Although the client should not micromanage the legal (or other) professional, it is equally important that the client remain an active member of the team. Indeed, the true legal professional not only welcomes the client’s input, but understands that such input enhances the professional’s own efforts to develop and implement the best possible strategy for the client. In proper balance, the whole is greater than the sum of the parts … and all parties can share in the benefits. 9. Dumb Thing: Litigate, Don’t Mitigate 10. Dumber Thing: Common Law, Not Common Sense

There are cases to take to trial, and cases that will never see the inside of a courtroom. By almost all accounts, over 95% of lawsuits will be resolved without a trial.

Knowing whether the case at hand is one to try or one to settle allows the institution to pursue the optimal strategy, which means maximizing:

 Success in the courthouse;  Collegiality on the campus; and  Efficiency on the bottom line.

It is often said – and all-too-often true – that no one wins a lawsuit. The costs, including (and sometimes especially) non-economic burdens, can be devastating, even destructive to our educational mission. And while the “rule of law” is of unquestionable importance, so too is the Golden Rule.

Accordingly, preventing lawsuits – but only to the extent we are also preserving institutional principles – is the goal. There are generally desirable opportunities to mitigate rather than litigate a dispute. And in those cases when litigation really is the best alternative, the institution will have the resources and energy to achieve the best possible outcome.

Colleges and universities need to win the battle and the war. Our paramount value will always be education, not litigation. II. FIVE CORE PRINCIPLES

Although the facts of each case may differ, virtually all negative employment situations present a common set of obstacles and opportunities. More than anything else, these situations call for proactive management of the risks – and potential rewards – presented.

As part of its “Smart Risk Management” protocol for colleges, universities and other similar employers, The AGOS Group has defined “five core principles” for navigating negative employment situations:

1. No Tolerance; 2. Observation; 3. Communication; 4. Empathy; and 5. Fairness.

Again, while each situation is unique and deserving of special care and handling, these principles form a general framework for analysis and action.

1. No Tolerance – Colleges and universities obviously cannot tolerate workplace (or other forms of) wrongdoing. While there must be uniformity on this point, our institutions must also employ creativity and flexibility in the handling of negative employment situations. In that spirit, one can contrast the increasingly perceived inflexibility of “zero tolerance” policies, which are often portrayed as nonsensical overreactions to technical violations of institutional policy, and a “no tolerance” philosophy, which calls for an appropriate set of responses to each situation. 2. Observation – Colleges and universities often benefit from taking an objective, proactive look at their policies, procedures and practices. Institutions can learn a great deal from the views of administration as well as those more directly affected in the workplace. Additionally, as a negative employment situation develops, continued efforts of observation will help mitigate a dispute, creating a positive and productive culture of risk management on campus.

3. Communication – Perhaps the single greatest source of employment problems – as well as the single greatest tool for problem solving – is communication. The most valuable efforts at communication adhere to the 4 Cs: candid, clear, collegial and concise. Above all, the focus is on the quality, rather than quantity, of the interaction.

4. Empathy & 5. Fairness – These are especially intangible principles, but are critical nonetheless. Typically, the most negative employment situations violate not only the law, but also these fundamental values. Colleges and universities cannot – and should not – act out of sympathy; however, our institutions will benefit by demonstrating (and, if need be, documenting) their commitment to empathy and fairness. III. PRACTICAL SOLUTIONS

Colleges and universities can implement a number of complimentary strategies to contend with, if not prevent, negative employment situations. Indeed, prevention should be the primary goal, with the likelihood of better outcomes even when the preventative efforts fall short.

The most important strategy for prevention is training. Administrators and all other supervisors and employees need training about the law as well as (and perhaps more importantly) institutional policies and procedures, including the internal avenues of relief.

These policies and procedures require careful consideration when created and equally careful compliance when implemented. A vital component is documentation, including a process for making institutional promises (e.g. contracts; agreements) and a system for establishing proof (e.g. of compliance).

Ultimately, the goal is a peaceful workplace so that the institution and its mission can prosper. It is vital for an institution to keep control of its internal affairs, especially given the external forces that are seemingly always present (e.g. press).

An educational institution’s most precious resource is the “human resource.” It is clear that a negative employment situation represents a critical threat to a campus and its constituencies. Fortunately, it is equally clear that the institution’s preventative and proactive efforts provide an opportunity to enhance the well-being of its administrators, faculty, staff and students.