By Jim Baer
In 1991, when Thurgood Marshall, the first African-American to serve on the U.S. Supreme Court decided to retire, the court swung in an all new direction under President George Herbert Walker Bush.
Marshall was the champion of the Civil Rights movement in America.
When President Bush’s nomination of Clarence Thomas moved to the floor of the Senate, the proceedings took a sudden and dramatic turn. Anita Hill, law professor
at the University of Oklahoma came forward with
accusations of sexual harassment by the candidate
in consideration.
Though Thomas won a narrow 52-48 confirmation by the Senate, the decision had long-term consequences for Thomas and how the decisions of future courts
would be viewed. According to Equal Employment Opportunity Commission filings, sexual harassment cases have more than doubled, from 6,127 in 1991 to 15,342 in 1996. Over the same time span, awards to victims have nearly quadrupled from $7.7 million to $27.8 million.
Local labor attorneys in St. Louis wrestle with hiring/firing—
discrimination law cases along with harassment, whistle blowing and a variety of issues every working day of the year.
The general consensus of eight local surveyed attorneys is that cases are moving rapidly from Federal to Missouri courts, and more favorable judgments are being made based on less evidence. Summary Judgment has become a weeding out process, and court systems are urging these judgments to be used only in rare cases.
The local labor attorneys are counseling their clients more, holding more seminars and urging supervising managers and human resource personnel to document copiously. Brad Kafka, who chairs the labor department at Gallop, Johnson & Neuman says they conduct numerous seminars to reduce risk management and cut the growing number of handled legal cases for their clients. “We’ve done this for years. Nothing is new, other than the fact we present the information now on Power Point rather than using an overhead (projector).”
Here’s an overview of how labor law is being handled by some of St. Louis’ largest and most successful firms:
| Armstrong Teasdale LLP |
Robert Kaiser, who heads the labor department, says the firm’s goal is to try and be practical with their many clients. “We try and recast legal questions in the form of a practical consequence. We give practical advice, not just legal advice. It can cost $5,000 to settle a particular case and $10,000 to win the same one.”
“The climate for employers is less
hospitable today and it is now easier to bring claims (to court) and easier to settle earlier,” he says.
“There is a small segment of players out there who try and figure ways to not have
to work. We follow the 90/10 percent rule. Ten percent of employees today take up
90 percent of the employer’s time settling
a variety of labor-related cases.”
Managers cannot let problems slide, Kaiser indicates. “Too often, managers try and work around problems and letting them slide always comes back to haunt the employer,” he says. |
| Bryan Cave LLP |
Charles Jellinek, deputy leader of the firm’s Labor and Employment Group, says more and more employee related cases are reaching juries in Missouri, and Missouri has no cap on punitive or compensatory claims (emotional distress).
“We counsel our clients to be much more careful today. As far as trends are concerned, Jellinek is seeing more cases related to race and religion, with Muslims and Middle East-erners bringing more cases into court in the post 9/11 era.
“All kinds of EEOC training is going on these days. We are hitting home our clients with advice about a heightened awareness of the Missouri Human Rights Act. Discipline and termination are more important than ever. Individuals today can be liable just
the same as their company. An individual can be sued as a bigot today by a plaintiff,” says Jellinek.
“We stress keeping paper in the files (of all employees) and files in the drawer.”
Going on, “This is usually not the problem of the bigger companies today. This is more a problem for growing small and mid-sized companies.” Jellinek points out that any company today with 50 or more employees must offer a full range of Family and Medical Leave options to employees.
“Wage and hour compliance is another issue that is getting a lot of attention,” he says. |
| Ogletree, Deakins, Nash, Smoak & Stewart |
Tim Garnett was recruited from Kinder-Morgan, a major petroleum products and natural gas company in Houston
to handle employment issues in St. Louis. The firm represents companies, not
individuals with the exception of Right to Compete contracts.
Garnett sees a downward trend in
litigation because companies are more attuned today to quality of life issues. He rattled off some of the perks that make employees happier and less prone to sue.
“Companies generally are hiring and training supervisors better today to recognize problems and resolve issues quickly. Sexual harassment is always a big issue in the work place. Companies tend to run leaner today than they did in the 80s and they are often finding ways to cut excess work hours.”
“What is compensable time is always
a hot topic,” says Garnett. “There are
certainly cases that challenge what is considered meal time in the work place.
If a receptionist is sitting at her desk and answering calls while trying to eat lunch, than that is considered compensatory work time. California has gone so far as establishing a defined meal period statute,” he says.
Another trend-setting issue is the use
of the electronic communications systems
of companies.
“The personal use of computers, cell phones and pda’s are all coming under
consideration. Just like the telephone
system, these forms of electronic communication can be abused,” says Garnett.
“Investigators are looking for email trails all the time,” he says. |
| Husch & Eppenberger LLC (now Husch Blackwell Sanders LLP) |
Alene Haskell has dealt with employee issues for 27 years and has a special expertise in family and medical Leave issues.
“The Family and Medical Leave Act have been around for 10 years and is an old statute. Problems lie where companies have 50 or more employees and have to comply with the act. Most put this information in a handbook. Employees taking leave must have a physicians’ certification. Employers have rights to stop (medical and family) leave from going on forever.
“The total leave time is 12 weeks and an employer can choose if it is going to be a calendar year or a rolling year. Employees taking advantage of this leave (policy) must have worked at least 1, 250 hours and during leave, even unpaid, the job must be held open,” she says. “Employers must treat employees even-handed and not mechanically. Supervisors and HR people need to be very well versed on the Family Leave Act,” she says. |
| Lewis, Rice &
Fingerish LC |
Neal Perryman is a veteran of the labor department there. “Wrongful discharge and whistle blowers are finding their way into the courts,” says Perryman. “Claimants are earning damages from at-will employers and they are difficult to defend,” he says.
“We do a lot of up-front counseling with our clients. Arbitration can be just as expensive as trying a case so we deal with a lot of day-to-day counseling to avoid court cases,” he says. “The cost of defending clients and companies in court is dramatically increased these days.”
“Today, I see the larger companies hiring more sophisticated human resource personnel to be more familiar with the law. Unfortu-nately, people’s egos are tied up in their jobs and people (claimants) never want to admit they failed. We find that employers will never want to terminate good employees. “Labor-related laws have dramatically changed the last five years, and there’s just a lot to be gained by less actions,” he reasons. |
| Gallop, Johnson, Neuman LC |
Brad Kafka is the chair of the labor department. Kafka says most issues boil down to one central question. We ask our clients time and again “Would you hire this person again?”
Hiring and firing issues at Gallop, Johnson is big today. “We are interested in the do’s and don’t of hiring and firing by our clients. We encourage ordinary diligence, by that we stress checking references, doing drug screening and background investigations. We encourage getting everything in writing and nothing extra.”
“For those considering firing employees, we find that issues revolve often around documentation and performance issues. Paperwork must be consistent, and discipline must be handled fairly. “
Kafka says a medical leave can be as simple as a migraine headache. “This issue was mentioned on the floor of Congress in conjunction with the creation of the Family and Medical Leave Act,” he says.
The other major issue showing importance these days is in the area of
non-compete employment contracts. “We are seeing a lot of non-compete issues challenged these days. The courts are viewing these contracts with great skepticism, especially when the employee in question was asked to leave. The only issues that really matter now are customer contacts and proprietary information of the company in question,” says Kafka. |
| Thompson Coburn LLP |
Chuck Poplstein is vice chair of
the labor & employment department. The hot button issue at Thompson Coburn is retaliation claims.
Poplstein explains: “We are seeing more retaliation claims by employees. They are the whistle blowers. Wage and hour cases are becoming more frequent too,” he says.
Poplstein says the problems occur as start-up-companies begin to expand. “The first level of new companies is comprised of people close to the company and share common philosophies of growth and development. We see problems begin to occur when companies hire the next wave of staff. Companies must be careful to hire people who work well as a team and
work within a defined system. Companies with bigger budgets have to run the
company differently.”
To stay clear of legal issues, companies need to exhibit good hiring decisions. “Everyone has to accept the fact that
all sized companies have a certain percentage of personnel issues and in every
company, managers have to manage,” he says in conclusion.
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| Blackwell Sanders LLP (now Husch Blackwell Sanders LLP) |
Randy Thompson is vice chair of the employment department. Thompson deals with a lot of family leave issues, revolving around mental problems. “It can be alcohol, drug, stress, depression, physical more than objective issues. Some want to abuse the system and leave at the most inconvenient times. Vague and ambiguous standards can certainly be the basis of a retaliation claim,” he says.
“Companies must maintain good paper trails on their employees. These paper trails can save or burn a company. Emails are important to this issue. Employers are obligated to verify and document discharge information and it must be supportive. We find most managers show a tendency to avoid confrontation and rather not deliver bad news.” Going on, “Our goal is to help our clients avoid litigation. We conduct a lot of seminars and do a lot of training. Most cases never get to trial, but some cases just have to be tried,” says Thompson. |
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