A multidisciplinary approach to employment litigation

As the reader is likely aware, there are few experiences as soul crushing as being trapped in a job where a supervisor is abusive, unsupportive, unpredictable, or some combination thereof. Accordingly, the factual topography of an employment case finding itself in litigation is quite different from, say, a personal injury case. This is especially true when considering that personal injury cases predominantly involve injuries caused by strangers not motivated by personal animus. In stark contrast, many employment cases involve a high degree of personal animosity – oftentimes bilateral – and more importantly, involve an evidentiary cover-up or tacit agreement to promulgate a false narrative about the underlying basis for an adverse action. These important, practical bookends to any prospective employment case lend themselves well to a multidisciplinary approach to case and client management in employment matters bound for litigation.

The author’s experience in social work prior to embarking on a legal career has had an outsized influence over his philosophy of client management. Further, it has proven true that the best plaintiffs are the ones who are extremely hesitant to sue their employers; usually electing to seek legal counsel after having exhausted all other plausible alternatives.

Like most lawyers in our position, we have had our fair share of “bad boss” experiences. The majority of individuals similarly situated will navigate the stress and discomfort of regular dealings with unpleasant supervisors, however, there do exist circumstances where the reality and finality of a bad job situation will defy even the most level-headed attempts at safe navigation. When these “adverse employment actions,” including those wrongful termination events occur, they are the effective and practical end of the employer-employee dialogue, sometimes resulting in the transition from employee to adverse party. Beyond the legal scope of this transition period, humanistic factors glaringly come into play. For most, the loss of a job, termination under grim auspices, and/or accusations of workplace impropriety are life-altering events that come with substantial psychological baggage and potential trauma.

Under these circumstances, the author has found that approaching new engagements with affected employees from a clinical perspective has led to better outcomes in the areas of client and case management. A prominent example is understanding what the potential client is seeking to achieve through representation and assuring that client and firm values are well aligned. A prospective client seeking to clear their name or obtain an outcome that would aid them in meeting their family’s financial obligations would be better suited to litigation than those clients solely utilizing litigation to inflict pain upon those they feel have wronged them.

Another important client consideration during this critical period is the need for personal validation. Being situated in the vortex of a traumatic life event, aggrieved employees often want someone to connect with in a way that makes them feel valued, but most importantly: believed. This permits the listener (intake attorney or otherwise) to establish a rapport with the client, allowing a client’s emergence from a state of crisis and initiating a relationship of trust with the attorneys to help carry the emotional weight of often yearslong traumatic events.

A further effective technique is to explicitly tell the client to give themselves permission to decouple from the crisis state, i.e., that they have done their job and put the case in the hands of experienced counsel. A conversation with this tone and proper circumstances can be cathartic for the client; often leading to an outpour of emotion that has been suppressed, potentially for years. This is a meaningful step in an investment towards a mutually respectful and beneficial working relationship between attorney and client.

As the baton is handed from the client to the attorney, the practical concerns attendant to litigation takes precedence over the person-facing concerns set forth above. However, there is one strongly emotional aspect of the case that tends to show up frequently in employment litigation - an amount of personal animosity that manifests in a punitive adverse employment action against an undeserving subordinate, but more importantly: in the subsequent coverup. As a former business fraud litigator and Certified Fraud Examiner, the author has frequently observed – and intends to elucidate – this common thread permeating employment litigation.

In 1971, the Stanford Prison Experiment set forth the proposition that power and authority have the very real potential of bringing out the worst in people. This was not a novel theory, as the bulk of modern jurisprudence owes its existence to our shared belief that those in power should not misuse it to their own benefit or to the misfortune of those not similarly situated. Simply put, bosses shouldn’t be able to needlessly abuse subordinates simply because the subordinate is financially dependent on their employer. Alas, this often remains the case.

The author has found that once the “bad boss” has elected to unjustifiably punish a subordinate financially, a false factual narrative must manifest itself to classify the adverse employment action as being lawful and reasonable. This desire to create a fictitious narrative leads to the creation of evidence of wrongful animus not based upon an objective and contemporaneous memorialization of the factual terms of employment. Sometimes, the lack of relevant and contemporaneous documentation can also be proof of wrongful animus, as an employer’s failure to investigate an employee’s complaint establishes pretext, because an inadequate investigation is evidence of such. See Nazir v. American Airlines, 178 Cal.4th 243 at 178-283 (2009). A lack of investigation can serve as evidence that the employer “did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when [the employee] made [the] complaint.” Mendoza v. Western Medical Center Santa Ana, 222 Cal.4th 1334, 1344 (2014).

In recalling the Nixon-era saying that “it’s not the crime, it’s the coverup,” it becomes evident that implementing a litigation strategy leveraging the fact that the weakest point in the defense’s aegis will always be the documents evidencing a concocted factual narrative not borne out by facts. Secondarily, the weak spot could be the lack of a serious and proportional investigation per Nazir and Mendoza. It is this focus, in conjunction with a culture of individualistic client management, that provides the best and clearest path to victory in these types of employment cases.