The State Bar Association of North Dakota Winter 2013 Gavel Magazine | Page 33

cases, it may be inevitable that the client will pay us as lawyers and pay damages to the plaintiff/former employee. 6. “I don’t understand this EEOC charge, that employee LOVED us ... ” Er, no, obviously, the employee did not love you. But, often I find that employers have a nostalgic view of a former employee’s relationship with the company. This is often followed by a belief that someone else is “putting the former employee up” to filing a charge (e.g., a wife, a co-worker, the EEOC itself, etc.) This kind of wishful thinking may lead the client to falsely believe that the former employee will suddenly come to his or her senses and drop the matter. In some cases, it may prompt your client to attempt to contact the former employee himself, often with disastrous results. The reality is that terminations are often fraught with emotion and many an employee who seemed to accept a termination initially will later file a claim. These claims are often serious and we as lawyers need to help our clients accept the new reality of the adversarial relationship with someone they previously may have viewed as an ally or friend. risky and poorly documented employment decisions. Our job is to educate that while the words “at will” may be powerful, they are not magic words that will salvage all situations. “But we have always done it that way ... “ A great example is the client who tells you “we have always treated our secretary as exempt” and she has never complained about not receiving overtime, why should the client change now. The old saw “too soon we get old, too late we get smart” is sometimes true, but not always. It is almost universally better to correct known compliance problems now than to continue bad practices merely because no one has complained or the client has always done it that way. “How do we get around ... ? “ This phrase is usually followed by a question on how to avoid compliance with an unpopular regulatory provision or law. The reality is that there is often more than one way to comply with the multitude of laws and regulations impacting today’s workplace. But, some provisions are simply non negotiable and not amenable to “creative” solutions. Clients who approach problems with the attitude of how to avoid compliance rather than how to fully comply in a way that works for their particularworkplace are heading toward trouble. 8. These are simply a few of the client truisms that I and many others have encountered in practice. Our job as lawyers is to anticipate them and see the train bearing down on our clients before the disaster occurs. That requires both spotting the warning signs of a problem and convincing our clients that taking another path is in their best interests. No small task. 9. 7. “We are covered. This is an employ- Gary A. Ficek ment-at-will state.” It is true that North Dakota is an employment at will state. The North Dakota Century Code specifically codifies the employment at-will doctrine at N.D.C.C. § 34-03-01, stating “[a]n employment having no specified term may be terminated at the will of either party on notice to the other, except when otherwise provided by this title.” But, employment at will has its limits, as the statute implies. An employee may be terminated for a good reason, a bad reason, or no reason at all ... provided, he or she is not terminated for an unlawful reason. That is where the many limits to employment at will come in to play, including individual contracts of employment, collective bargaining agreements, carelessly draft handbooks or discipline policies, state and federal civil rights statutes. Statutes prohibiting retaliation and much more. Even some otherwise sophisticated clients get caught in overreliance on the “at-will” doctrine to justify Attorney at Law Fargo, ND 1-800-786-8525 www.ficeklaw.com 15 Broadway Suite 301 Fargo, ND 58102 10. “Everybody else is doing it.” An example is “I know my competitors are not paying overtime. Why should I?” This is similar to the “how do we get around” and “we have always don e it that way” syndr-omes and a form of denial by clients. While the “everyone is doing it” mentality may seem appealing initially, it may soon lose its luster. In reality, rarely is it true that “everyone” else is violating the law and often, those who do pay dearly for it in the end. Board Certified Specialist Social Security Disability Advocacy National Board of Legal Specialty Certification Former Staff Attorney, Social Security Administration We specialize in Social Security Disability claims. All referrals are kindly returned back to you for all other legal matters. The Gavel February 2013 31