The Employee Handbook - An HR Podcast by 2 Lawyers
"The Employee Handbook - An HR Podcast", hosted by attorneys Arta Wildeboer and Ryan Ellis, offers expert insights into human resources issues and their legal implications, providing valuable guidance for navigating the complex intersection of HR practices and employment law. This informative series is essential for HR professionals and business managers seeking to understand and prevent legal challenges in the workplace.
The Employee Handbook - An HR Podcast by 2 Lawyers
Let's Talk About SEX....ual Harassment in the Workplace
Embark on a journey through the complex world of workplace sexual harassment with attorneys Ryan Ellis and Arta Wildeboer as our guides. Today's episode tackles a real-life scenario straight from Reddit, revealing the murky waters employees and HR departments must navigate when allegations arise.
Delve into the legal definitions and boundary lines of what constitutes harassment in California. Discover how response strategies and investigations can make or break both the accuser's case and the company's liability. This conversation is a must-listen for understanding the intricacies of protecting employees and preserving a company's integrity in the face of harrowing claims.
Sometimes, the actions of an HR department can seem as enigmatic as the legal principles that govern them. We unravel these mysteries, scrutinizing the role of witness perspectives and the "reasonable person" standard in assessing the severity of harassment claims.
Ryan Ellis lends his expertise on the balance between conducting a fair investigation and managing the potential fallout for both the accused and the accuser. This episode will arm you with knowledge about the strategic decisions behind employment claims, from the preference for phone calls over emails to the nuanced approaches attorneys consider when advising their clients on the battlefield of employment law.
Finally, we navigate the strategic considerations that come into play during litigation, with a special focus on the defense versus plaintiff attorney roles. Weigh the pros and cons of demand letters and lawsuits, and understand the financial and ethical implications that each side must grapple with.
And in the age of COVID-19, learn how the pandemic has tipped the scales in legal proceedings. Whether you're an HR professional, an employee, or just an avid learner, this episode will equip you with a keener sense of the legal landscape and the critical decisions that shape the outcomes of employment law cases.
Welcome to our podcast, the employee handbook and HR podcast. This is our fourth episode and I think, Ryan, it could be our third name change we started probably we're going with a name change every show.
Speaker 2:So I'm going to say for it.
Speaker 1:Okay, cool. Fourth is good for me. I'm not going to counting anyway. So we had, we had the HR is dead and we killed it podcast. I was too edgy for me. And then we had the TPS report and HR podcast. I found out there's like 80 TPS report podcasts. You know we're trying to do the office space thing, so I was like you know we're just going to get buried in the podcast rankings. We have 11 total downloads right now.
Speaker 2:You did so good on like the cover photo, like it was perfect.
Speaker 1:Yeah, you know that was the easy part. The rest has been a lot more difficult. To try to get things squared away and decide on something catchy, that you know. Like I said, 11 total downloads for the two episodes that are up right now were very, very pretty much successful and blowing up the podcast world, as you can see, but anyway, they called.
Speaker 2:they called a banger in the industry, Got the banger everybody anyway.
Speaker 1:so we want to. We want to continue on giving you guys amazing HR information and thoughts from attorney's perspective on HR issues. We're going to start today's episode with our segment billable hours, where we talked to Ryan about a example that we found on Reddit of somebody you know who had an HR issue, and we'll ask Ryan how he would have handled it as somebody who would be advising a company on what to do in a situation where a employee came with a sexual harassment complaint. So, ryan, I'm going to go ahead and read the Ask HR subreddit post here. Let's do it.
Speaker 1:The title relates to sexual comments at work, which HR said was not sexual harassment to the employee that was complaining. So there's an employee that was in her 20s claiming she was harassed by her supervisor, who's in his late 60s at work, but when she complained, hr said that it wasn't sexual harassment, because employees are allowed to date and because it only happened once. Apparently, there was multiple comments over the course of the workday at separate times, all about quote fetishy things and my supervisor. I'm reading her work.
Speaker 2:This guy and this person dated the person that she's talking about.
Speaker 1:No, I don't think they dated. I think what she's saying is the HR said that they didn't consider it sexual harassment simply because employees are allowed to date. I think there's definitely a little bit of lack of facts and information here, but it kind of enables us to talk more broadly about what's going on with sexual harassment at the workplace in general, so it's very helpful. I think as well that we don't have all the facts here. So she said that over the course of the workday at separate times her supervisor said fetishy things and kept trying to make excuses that were quote very transparent to get her alone and away from the rest of the team. For the next week the attempts to get her alone were noticed by another co-worker who commented how weird it was. The person then called an in-person meeting with HR and HR said they didn't consider sexual harassment for the reasons we talked about before. The person said they're feeling trapped and feels like HR wasn't protecting them. They had a total mental breakdown and took time off work.
Speaker 1:Now HR wants to have a two-way phone call and refuses to talk over email, even though she doesn't have cell phone service. What are they going to say? Why phone only? So there's a lot to unpack here, brian, I'm going to throw this about what you would do in this case. I think it would be very helpful maybe if we started with defining what sexual harassment in California is in the workplace and also telling everybody this is not legal advice. In no way are Ryan Ellis or Artawilderborg giving you any type of legal advice. We are just using California law and this random example that we found in a way to illustrate how somebody who is an attorney for a company dealing with a sexual harassment claim might handle things. So, ryan, we start off with explaining to the good people the 11 people potentially who are going to be listening to our podcast what the hell is going on with sexual harassment in California according to the law.
Speaker 2:Yeah, so to quote the triceratops from Toy Story 3, I have all the questions. I don't have a question, I have a couple. I have all the questions. I have a couple of facts here that are missing that I would be inquiring to. My client in this situation would be the employer to see what happened, what they did about it, did they conduct an investigation? What report did you base your opinion on? All this other stuff?
Speaker 1:One thing I want to say. So how much are you looking into the facts after the incidents of sexual harassment occurred? How much does it matter how the company reacts to one of these claims?
Speaker 2:Yeah, it's very important. I mean obviously and I don't say that sarcastically at all obviously sexual harassment is a very important thing to investigate. Whether the allegations come in and the person that's receiving the complaint believes it or not, they're very serious and can be very damaging allegations and complaints brought by people who believe they've been harmed in such a way. So no matter how big or small the complaint is, it needs to be treated with respect and treated with at least a modicum of investigation, which, again, sexual harassment. I would advise that they always do a very thorough investigation, but anyway, it's very important that they conduct an investigation to insulate the company and that would be part of a training that I would provide as an attorney to the company, in the event that they came to me with facts saying, oh yeah, hr receive this complaint and immediately dispose of it with a response. That's not how it happens, especially in California. It would be very bad to be in a deposition as an HR professional or as a person most knowledgeable or qualified for a California company and say, oh yeah, we received the complaint and we similarly disposed of it without conducting an investigation. That would be a huge asterisk in the transcript that plaintiffs counsel would make and probably be the impetus of a large settlement demand coming your way. But to reiterate, to go back to your original question California workplace environment harassment. Not quid pro quo like hey, I'll give you a promotion if you have intercourse with me but workplace environmental harassment.
Speaker 2:There's several elements. The important ones here are that the person was subjected to harassing conduct because of protected status In this case she's female, I'm assuming and the person who made the allegations or made the comments to her was a male. So most likely the person made those comments because she was a female, wouldn't make those to his male coworkers and being a female is protected status. That the harassing conduct was severe or pervasive. I'll ask for a specs we're going to come back to that one that a reasonable woman in her circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive or abusive and that she actually considered the work environment to be hostile, intimidating, offensive, oppressive or abusive. I'm going to go back quickly to the severe and pervasive element. And again there's other elements, like she had to be an employee and there has to be some tie to the company, whether it's a supervisor making allegations, all that stuff. But the important ones we just hit upon. Going back to severe or pervasive, california has its own specific definition of what severe or pervasive is, as it would be explained to a jury, and here it means that any conduct that alters conditions of unemployment and creates a work environment that's hostile, intimidating, offensive, oppressive or abusive.
Speaker 2:But in determining whether or not this conduct that this fictitious person on Reddit is alleging happened, determining whether that was severe or pervasive in her workplace, the jury, or you as HR in your investigation, or you as an attorney evaluating the case, would include all circumstances surrounding, which is why an investigation is important. You need to know all the facts, such as the nature of the conduct, what was said. Obviously, saying hi, you look good today is much different than take your clothes off because I have these fetish ideas or whatever the severity and nature of it. How often these comments were made and over what period of time in this situation, it was over the day, apparently in an attempt to get her alone for further time. Another thing to consider is the circumstances. Did he do this at a lunch break, in the lunchroom? Did he do it at a company meeting? Did he do it at a company retreat? That sounds like it was just in the office throughout the day.
Speaker 2:One of the other important elements is whether the conduct was physically threatening or humiliating. This doesn't seem to meet that one of those prongs, but it could have been. He might be a very large individual and the female who's making the complaints may be very small. He may have stood over her. He may have made gestures or made faces or held up pictures. Who knows? These are the facts. We're going to find out.
Speaker 1:I have a question in terms of humiliating. In the facts it says that one of the coworkers commented how weird it was. I would assume there was a witness. If you're subjected to that type of behavior, comments or something like that in front of other coworkers, maybe you can make a case for it being humiliating to be single that for sexual comments.
Speaker 2:I agree. I think that, with what you just said, the coworkers said hey, that was weird. That goes back to whether or not the environment was hostile, intimidating, offensive, oppressive or abusive, but also in the eyes of a reasonable person, a reasonable woman in her circumstances. Take her out of the situation. Go back in time, take her out, put a reasonable woman in her circumstances and see what that reasonable person would have said or would have reacted. I agree.
Speaker 1:That's definitely, which is basically what happens when you take something to a jury. The jury is going to function as your reasonable person, each member of the jury, of course, comprising one vote, but the total vote is indicative of whether society or it's supposed to function that way considers the behavioral reasonable or not, and then what that lack of reasonableness means in terms of damages and how much to award to the plaintiff. Let's talk about the severity issue of it, because there's a frequency, brian. Is there a case where something is so severe that it would only need to happen maybe once, or it could be a course of things that happened over the course of one day. Is there something that could be severe enough to be able to satisfy that problem?
Speaker 2:Yeah, this is a great question. It's hard because in the facts we were given from your example, it happened over a day and there's nothing talking about how this person's work environment was changed or altered or how she felt the work environment shifting or changing to become hostile, intimidating, offensive, oppressive or abusive. Obviously it can be hostile because, like, oh crap, I feel awkward around this guy. He could have been intimidating. His comments she obviously felt were offensive, oppressive and abusive. Maybe not so much, maybe so, depending on the facts, additional facts.
Speaker 2:But let's take into account another example. So she's saying that he made some comments about fetishy things, quote unquote. Take that compared to a fact pattern where the person alleges that another person came to them and threatened them with sexual abuse or said, hey, next time you go to the bathroom I'm following you in there. Or hey, don't walk to your car in the dark because you won't make it home. That single instance can be very hurtful, very offensive and may qualify much quote unquote quicker under this analysis over. You know, billing has to happen once where if somebody making offhand comments about fetishy things that another employee thought was awkward, it might have to happen a few times more. I don't know. I don't think it's enough to make that decision.
Speaker 1:One thing I want to just stress first is that we're just talking about comments. We're not talking about sexual harassment. That's physical sexual harassment, because that's also going to be something completely different than the severity. Severity for somebody grabbing a butt or, you know, making a move to grab somebody's breasts or making physical contact with somebody's private parts. That's an analysis that's a little bit more clear cut in terms of severity. You know, somebody does not need to grab your butt 15 times for it to finally be considered sexual harassment. You know somebody can do that one time.
Speaker 1:But there's a lot more nuance when it comes to comments and you brought up fetishy things. Well, what the hell does that mean? What are fetishy things? I mean, you know, is it foot fetish stuff? Is it? You know what? We don't even know. I mean, those are that's my favorite, of course but we don't really know what this woman considers fetishy things and what these comments were. So this I think this underlines the need for the company first of all to do this investigation was what the hell were these comments specifically?
Speaker 2:Yeah, and this is the exact same thing. First of all, I hit my head very hard with my hand after you made that comment. That was very funny. But also, if your client tells you and if you're in my situation as the attorney, the company comes to me and says, hey, we have this issue and they don't have any facts about it except for quote unquote fetishy comments. They're going to have a talking to Like. They're going to get an earful from me of like how do you expect me to do my job and give you good, informed, competent legal advice with this fact pattern?
Speaker 2:So, again and again, it's a reasonable person versus this person's perception of what happened. Fetishy things with air quotes to this individual could mean that they talked about wearing certain clothing, but fetishy things to somebody else might be like a complete bondage, bdsm situations, right, where nobody would blink at that person In the second example wouldn't blink an eye to the comments that this person thought were quote unquote fetishy. So that really the facts here of what was said is crucial. I think the most important part that we're missing is there's those facts.
Speaker 1:What about the fact that he's a supervisor? What difference does that make in California?
Speaker 2:In California, the supervisor engaging in the conduct automatically well, I'm going to say automatically, with an asterisk and a caveat but automatically subjects the company to liability. So the company will be responsible for that conduct, whereas in most situations if an individual makes that comment or does these things, to this person who's complaining, let's say, just a coworker, same tier of job duty, not a supervisor, not a CEO, not a director, not a managing agent, just a coworker makes the comments. The employer is not automatically liable for the conductor, for the damage caused. But since in this example the supervisor did it, the employer is going to have some problems here at being responsible for that conduct by the supervisor.
Speaker 1:And so in a case where it's not the supervisor, would you be able to well, I'm just asking this, of course, this is what we would do Would you sue, or would you be able to sue the individual let's say it was a coworker. You're both sales clerks and another sales clerk says this to you. What is your legal recourse there, potentially as the person who's been harassed?
Speaker 2:And usually in these circumstances that's exactly right. The plaintiff was alleging the harassment and there were other causes of action that would sue everybody involved the company and the person or person's individuals who engage in the harassing conduct. So I would expect, if a lawsuit came over my desk with this back pattern, that the defendant's name would be the company and the individual or individuals who engaged in the conduct.
Speaker 1:And so I just want to chime in quickly as a plaintiff's attorney.
Speaker 1:If I had a situation where it's a coworker and that really changes the analysis for whether we're going to file a lawsuit Because, of course, as much as a lawsuit is about validating what happened to somebody and letting them get an emotional validation to what happened to them, which is very important the lawsuit is about money and you're not going to file a lawsuit unless you're going to have enough money to make up for the amount of work and for the amount of bills and costs and things that go into the lawsuit, because you don't ultimately want the client owing if there's nothing really to get damages for.
Speaker 1:Because, say, if you're suing a coworker who's like a fellow clerk, they're probably not going to have money to be able to pay a judgment anyway, and going through a process of two years of suing somebody only to get a judgment that's worthless, because you want to feel emotionally validated. You're not going to feel emotionally validated at the end of that. You're going to want some money also to validate what you went through, because that's the whole point of a lawsuit. You can't get really anything but money from a lawsuit and that's what people really, I think, need to understand from the perspective of suing, but you still might have a case if it's not a supervisor against the company, if the company goes ahead and botches their response to the complaints, we'll talk about that.
Speaker 2:Or botches the investigation, or knew of this person's conduct over a period of time but failed to remedy it or failed to take an adverse or an employment act what we'll call it adverse to take an employment action or proper employment action against this offending person, which I have seen. It's insane Sometimes companies make the dumbest decisions because they think they're protecting their company when in fact they're actually hurting everybody.
Speaker 1:Yeah, they're creating more legal exposure from trying to sweep things under the rug or not properly documenting the investigation, and this is stuff that if you have an insurance company, they're going to go ahead and raise your premiums because you didn't go through and do things properly. So there's another incentive. So again, so just to recap, we have a supervisor here, so that triggers the liability for the company automatically. Who said fetishy things? Now we've already talked about. We don't have enough description of what those fetishy things are, so it's difficult to really make a determination here and that's why the investigation is important. But let's talk about the alleged attempts to get the person making the complaint alone by the harasser. What are we dealing with here in terms of liability for trying to get somebody alone? What is going to bring that to a level where the company should be worried about potential liability for this type of behavior by a supervisor?
Speaker 2:Well, I mean going along the same fact pattern as before. This should have been quashed immediately. Anytime you hear someone, anytime, as an HR professional, you receive a complaint that someone is trying to get you alone, with or without fetishy comments being in the situation before. That's a complete red flag. It should be addressed with haste and, again, severity. I don't know if my analysis changes, because she opposed the harassment by saying I'm assuming by saying no or laughing it off or whatever and then came to HR as soon as she could when she realized it was happening. So my liability analysis, based on this bare bones facts we have, doesn't change. But at the same time, I think it's very important to note that this is again a point where the HR professional, the HR department's investigation or reaction comes into play. And I mean, I'm going to ask you this question but how would you, as a plaintiff, does this change your analysis, with a person getting her alone and if, in taking into account the fact that it was a summary investigation, if any?
Speaker 1:Yeah, I mean absolutely, because what you're trying to do is prove that the company was just not taking this seriously and that really pisses people off in terms of pisses off mediators if you're in a mediation. It pisses off juries. It really sparks an emotional response from people when complaints aren't validated and somebody is really having a difficult time. At this point I think it's not really for HR to decide whether or not they believe her. It's this is too soon to make that determination. Doesn't matter if you believe her or not, doesn't matter if you think they're being sensitive. You still have to go through the process of doing everything very thoroughly, of interviewing everyone. Otherwise you're really just going to make the company look like they're trying to hide something and that's going to play very well for the plaintiff with a jury.
Speaker 2:Right and just from a plaintiff's attorney perspective, would you I mean, I hate plaintiffs attorneys because I represent employers I think a lot of claims are be yes, because HR has acted properly in a lot of situations, california law being so swayed towards employees. That's a different soapbox for a different time. But in this situation would you essentially, as a plaintiff's attorney, salivate more with this claim Because there is essentially a lack of inferior or botched investigation as opposed to it being a full and complete one? That became out with the same decision?
Speaker 1:Yeah, yeah, absolutely.
Speaker 1:Because with the description that we have already, there is so much that is unknown and you have to prove as a defendant, in my opinion, that you really did everything to find out what was going on so you can determine the reasonableness of the claim and the reasonableness of the actions of the supervisor.
Speaker 1:Because what you don't want to do is as an employer in my opinion, as a plaintiff's attorney is overreact also and fire the manager and destroy potentially a good working environment. Say, he's a good manager and this person who's complaining maybe took things the wrong way. I mean, there's a lot of different things that go into it, that we just don't have enough facts, but absolutely a botched investigation or no investigation is something that really is going to make my eyes go wide and open. And even little things like there's only one person doing the asking of the questions from the accuser or from the accused. There should be multiple people in there. All those things kind of go into it. Did you contact your attorney? What are all the things that you did to prepare for this investigation? All those things are extremely important factors in kind of being able to build a case that that's worth more money because you're blaming the company for mismanaging what happened.
Speaker 2:Yeah, agreed, and I think this is I don't know where we're at time-wise, but I think this is a good transition point to when we get back from the break to talk about what to do once this has happened and try to mitigate before a lawsuit is filed or before an attorney gets involved. Mitigate loss, mitigate the situation and try to prevent it from becoming a wildfire.
Speaker 1:OK great.
Speaker 2:So end of our first second.
Speaker 1:well, it's not the end of the second, it's our first break. So this is where our advertiser would be advertising with us and then cue the music. The video is playing. Okay, we're back with our segment, Billable Hours, where we ask Ryan Halis what he would do if a company brought certain facts out or talking about sexual harassment here and just the lack of facts that we have on the example that we brought out. So I want to talk a little bit about the part of the law that talks about the person who's been harassed feeling like they can't work in the environment any more comfortably and what that really means. Ryan, can you refresh our memory a little bit on what the law says about just the reasonableness of the person who's on the receiving end of the harassment or alleged harassment?
Speaker 2:Yeah, so the alleged harassment has to be or harassment or conduct has to be severe or pervasive. The person being harassed in the situation considered it to be hostile, intimidating, offensive, oppressive or abusive, as well as a reasonable person in this case a reasonable, assuming woman and the plaintiff's circumstances would have also considered the work environment to be hostile, intimidating, offensive, oppressive or abusive. So it's not just that the person being harassed in this fact pattern has received the comments or the conduct and they think it's harassment, but also a reasonable person. And again, this is based in California law, not advised. Not, we don't know your facts of your case, so don't take it that way. We're just discussing. But that's what a jury would do here in California is they would have to analyze that a reasonable person or a reasonable woman in the plaintiff's circumstances would have considered the work environment to be hostile, blah, blah, blah. After this conduct occurred.
Speaker 2:There's case law explaining exactly what that means and gives examples.
Speaker 2:One of them is regarding racial harassment that's the Etterverse Verifloh Corporation case.
Speaker 2:Another one is if the workplace itself is permeated with discriminatory, intimidation, ridicule, insult, that would qualify as sufficiently severe, pervasive, to alter conditions of employment and create an abusive working environment.
Speaker 2:That's the Kelly Zurean versus Woll shoe company case from 1994. And there's interesting responses by courts and again, not sexual harassment claims, but there's one about race discrimination where the court said that not every utterance of a racial slur in the workplace constitutes a violation of the FIHA in California or Title VII, the United States federal rules. The United States Supreme Court has agreed, but in the context of sexual harassment, not all workplace conduct that may be described as harassment affects a term, condition or privilege of employment within the meaning of Title VII. Now, for sexual harassment to be actionable according to this case and again this is the United States Supreme Court case it must be sufficiently severe, pervasive, to alter the conditions of the victim's employment and create an abusive working environment. So conduct that's not severe, pervasive enough to create an objectively hostile or abusive work environment, someone that a reasonable person would find abusive is or would not find abuse, excuse me is beyond the coverage of the law.
Speaker 1:So I want to just stop you and talk about examples of things that would not be considered racial harassment and even racial, because you brought that up. I want to bring up one example, because when you say, oh well, somebody saying a racial slur that's not always racist or that wouldn't trigger a racial discrimination claim, wouldn't trigger liability under the racist criminal law in Title VII in California.
Speaker 1:Yeah, that seems absurd, but actually there is an example from the NBA. Nba players were told that they were not allowed to use the N-word and they could be fine for that, and NBA players, who are predominantly African-American, had a huge reaction to that because they were saying well, how can you find me as an African-American for using the N-word against another African-American? You know, it depends on the context, and that was something that I think is illustrative of a situation where that would not be something that would be racial discrimination, just because of the context of the word and how it was used and who was used by. So that's an interesting case of an exception to that rule. Potentially, and in this case, I think jokes are a great example of something that would not rise to the level of sexual harassment. It's even in the statute.
Speaker 1:I think one of the exceptions is they call it mere jokes, and I just want to give an example of how it could be and how it couldn't be.
Speaker 1:So let's say you have somebody who's sitting in the lunchroom by themselves.
Speaker 1:At the next table over there's two coworkers who are making I don't know dick jokes or something like that, and that might be a case where the jokes are not meant to be heard by that other person who's sitting alone, who's considering themselves offended by it, and it has nothing to do with them.
Speaker 1:But I actually had a case where this exact same thing happened in the lunchroom and the two people making the jokes knew that the plaintiff or the client that came in was very religious and had mentioned their religion and mentioned that they were very sensitive to jokes like that and talk like that, and having these two coworkers and this is where also the frequency prong comes in continually making these jokes around her, that became a form of sexual harassment, even though they were not directly talking to her. So there is a lot of nuance to this kind of stuff. But oh, we're talking about the reasonableness. So in this case, how do you determine the reasonableness of trying to get somebody alone? What are the things that would make you nervous if you found out more facts about the situation?
Speaker 2:I think we would lend on the severity, what was said specifically and the frequency. I mean if someone just offhandedly said, hey, fetishy thing, fetishy thing. And then later that day said, hey, by the way, next week when we're alone at this company trip, at the hotel, let's do the fetishy thing. And that was it. I think that's a much different analysis, a much different opinion as to if that happened over months of time prior to the same alleged or fictitious company trip. Again, any sexual harassment and the level of claims of what is important and severity of on a to-do list what would be towards the top, sexual harassment is near the top, if not at the top, every time both female to male and male to female or anything in between.
Speaker 2:And that's because those kind of things are and can be physically abusive. They can turn physical, for example, if they went on the company trip in my previous example and sexual intercourse occurred. That's a physical contact, a physical touch that could alter people's lives, let alone their work environment, and can involve involving a whole host of other things. It's easy to pregnancy all that stuff you know, physical and emotional when other things like just comments again still very important, but in the sexual harassment around those things, towards the bottom, in my opinion, if not exactly the same, towards a little bit lower than the physical part of it.
Speaker 2:So, fact wise, I again want to know how many times these comments are made, the detail of the comments made, you know. If the person said, hey, let's do fetishy thing on next week's trip and there was an next week trip, you know, already scheduled and reserved for these people, that's one thing. If they said, hey, next time we have a company outing, I'm taking you to the bathroom, that's a different thing, which would also be a threat of physical violence. There's just so many things it's hard to kind of pinpoint, I think, just to kind of transition this a little bit. I think that in this situation, hr should have taken a very close and detailed look at exactly what happened and absolutely addressed the problem with both the person who complained and the aggressor.
Speaker 1:What about the witness who said they thought it was weird?
Speaker 2:What about the witness?
Speaker 1:You need to bring them in there and talk to them as well.
Speaker 2:Part of the investigation. Absolutely, if there's witnesses, I would 100% want to bring in everybody we could to either verify the claims you know the person coming in making the complaint may be lying and again, we don't know what fetishetings are, because the facts weren't provided. But you need when you're conducting an investigation. One of the basic principles is gathering all relevant information that you have and if there is an eyewitness to the conduct or the words that were said or the physical contact, excuse me, or whatever, you want that witness because that will assist you as an HR professional to come to a reasonable determination based on what actually happened. And again, you weren't there as a HR professional. Maybe there's a camera that got the conduct on tape, Maybe there's not, so you don't have any of that. You have a witness. Absolutely talk to that person, Absolutely include them in the report to the extent that witness will participate, which should be a part of your handbook that all employees should be participating in internal investigations for retaliation, harassment and discrimination.
Speaker 1:So what do you think about, basically, the HR person alleging to have said it only happened once, because that's almost like a legal determination of the claim because of the frequency, so it only happened once. It seems like maybe the HR person was aware of the severity frequency prongs and speaking to that by saying it only happened once and saying maybe the frequency due to the severity of what was said does not rise to the level of sexual harassment, what do you have to say about the HR department making these types of what happened to be legal determinations really?
Speaker 2:Yeah, no, this is really hard and I say that because we and you and I, both together, preach to clients that like the more severe the issue at the company level, the more involved you should be getting legal, whether internal or external legal counsel for their opinions. In this situation, playing devil's advocate, now we again, we don't have the facts. So let's assume that in this situation, the employer, the HR representative, you, did an investigation, that they talked to the witness and they made the determination that they didn't believe it arose to the level of sexual harassment. That may be proper. But also there's no discussion of remedial action taken against the aggressor or no, disposed it or anything Note to file or disciplinary action or anything that happened to the other aggressor.
Speaker 2:I don't remember if you said anything that happened. It just sounded like the post talked about how the fact that HR said it wasn't harassed, they didn't believe it was sexual harassment. That doesn't mean that a note to file wasn't written to this person's, the aggressor's file. It doesn't mean that the aggressor wasn't or the alleged harasser wasn't disciplined. It doesn't mean that they weren't didn't receive some sort of suspension. It doesn't mean any of that. So we don't know enough. I don't know if I answered your question or went on a tangent here, but I really think that again this underscores the fact that facts are important, and especially in harassment allegations, because you want to make sure you have everything before you make the determination. I hope that answered your question. Did I hit it?
Speaker 1:Yeah, no, that was perfect. Well, it's just a very difficult position to be in as an HR person, because I think when you're dealing with something like this, you're going to be nervous, you're not going to want to make the wrong determination, you're not going to want to make any wrong decisions, and when General Counsel talks to you or your boss talks to you, they want to know what did you do to calm her down, what did you do to remediate the situation? What did you do to save our company? They're putting that on the HR person. I think that's very unfair on an HR person and this is why we talked about earlier that HR is having to do tasks that are out of their competency, and this is definitely a great situation to illustrate that.
Speaker 1:But you should never. In my opinion, as a plaintiff's attorney, you should never say something like it only happened once, because I'm going to sit there and I'm going to ask you, in a deposition of the HR person, so many questions oh, so what is your definition or interpretation of what's severe? How often should this have happened for you to have been worried about it, all these things that are going to put you on the spot as an HR person. It's just going to make you very uncomfortable and there's almost no way to answer that in a way that's going to make you look good or save the situation.
Speaker 2:Yeah, I think this is why this example you brought to the show today is good is because we can really just riff and talk about a bunch of different scenarios based on the facts, because we don't have those facts and how we would react. Yeah, it's sad that we don't know what happened. I don't know if there's a thing like a follow-up post to what you saw, but it sounds to me that the person who's complaining really might have just not be happy with the HR's response, and I don't know. I have a lot of comments on workplace culture and employee mental health and all that stuff which may apply to this in these kinds of situations, but at the same time, HR is just doing its job right. They're taking the facts or making a decision based on what they think happened, based on that reasonable and thorough investigation.
Speaker 1:And another thing is should they be the ones making this decision? If this happens and you're the HR person, in your opinion, as an attorney who's advising a company, what should the HR person be doing at this point? Should they be the ones making the determination of what to do, whether this is harassment or not? Should they just unilaterally, just say okay, you know what? That comment about smelling her armpits at the end of a hard day is pretty weird and severe and fetish.
Speaker 2:I don't remember that at all. I feel like I would remember that one. I don't remember that one.
Speaker 1:I don't remember that one Like whoa, right in the middle of just being really weird, without being overtly sexual, you know so. Okay, hey, employee, there's nothing better than smelling a 20 year old girl's armpits after a hard day of work. That would be a weird fetishy thing to have somebody say and a reasonable person would probably interpret that as fetishy.
Speaker 2:And also probably as awkward, severe, pervasive, weird.
Speaker 1:But my point is, even with that being said, would you still tell them, hey, you're safe to make that decision yourself? Or say, hey, get your ass over to general counsel's office or CEO or whoever your manager is, and let them make the decision?
Speaker 2:Yeah, and that's a good question. I think I don't like when an HR department makes a decision on what could be considered a legal exposure.
Speaker 2:Well, not legal exposure but a large amount of, because everything is really as legal as exposure in California. Right, you take three breaks and you don't punish them for it. And they sue you for not paying for the mispray, for whatever. Everything is legal exposure in California. But there's got to be a threshold or a process in placing inside of companies where complaints are escalated internally.
Speaker 2:So HR receives a complaint, maybe the HR generalist receives a complaint, reports to the specialist or the director, instructions are sent within the HR department as to how an investigation should be conducted and actually be conducted, and then, depending on the severity of the claim, potentially severely claimed potential exposure, parties involved, whether it be supervisor or not, if there's a history with someone between the people, if there's been an intra company relationship, if there's been previous discipline, depending on the severity not really articulating this very well that there should be an escalation process where HR takes that investigation and prepares a recommendation to either the director of HR or the director, takes that then to a, come to the to along with a C-suite to a meeting and goes through claims and asks I say, look, here's my recommendation.
Speaker 2:Do I have your blessing? And then at that point, obviously, if general counsel is not involved in that sort of a meeting. It should be, because again we're talking about escalated claims over a certain potential exposure. I'm not worried if someone complains that you know, something small happened like some food was missing from the fridge and no one knows what happened versus hey, I'm someone smelling my armpits at 435 every, every day and I'm feeling uncomfortable. I think those are two different levels of severity. I think the HR person at any level can handle the first one very well, but the second one might, might call for a reasonable HR professional to seek additional help from either the director of the C-suite with blessing, or outside counsel.
Speaker 1:So yeah, I just think it's something that you you don't want to put squarely on one person's shoulders either, because also it looks bad if you get sued and then during a deposition, the HR person is asked about who they told or who they talk to and they say nobody, they made that decision laterally on. Something like that's also going to reflect very badly.
Speaker 2:Well, the reason the reason I said it was hard for me to say that before my last rant was because I like to tell clients both employer clients along with you know people who we consult HR with that anything like this, should any, any complaints should be run through general counsel Again, I say any meet with very vaguely in a way where, like you know, somebody stealing a sandwich out of the fridge and nobody knowing who it is and there's no nothing behind it. What if some very basic complaint don't bother GC, don't pay, don't pay for that. But anything that gets to the level of harassment with discrimination or retaliation, and investigation is conducted just should. An email should be sent to counsel, if not for blessing, just to put them on notice that there's a potential claim coming. I mean, that's what we're here for, and a lot of times I say this to clients, all the time.
Speaker 2:A lot of times, if you were just including me on an email and put me on notice of something, if at the time I would have known, I could have saved you a lot of heartache, a lot of hassle, a lot of money. And unfortunately we're, as an employer's attorney, defense attorney, in these situations we're paid to defend claims that should have been and could have been prevented. So we make more money doing that, which again is contrary to humanity, when they shouldn't happen in the first place. So I really think that and I think it's a great practice to include general counsel, whether internal or external, on these sorts of issues, or just have them addressed every week at a meeting where general counsel participates.
Speaker 1:So now, let's say we have general counsels involved, maybe outside counsels involved CEO knows about it or whoever the C-suite employee that is in charge of this department knows about it. What is the process of determining whether or not this person overreacted or not, or if the person making the complaint was reasonable in doing so? What is that process like and what are the risks involved with doing that?
Speaker 2:Well, I mean not to be repetitive, but I think it goes back to what we talked about earlier, where you go to the reasonable person standard and as an objective third party during the investigation you're conducting. Or if you're smart and hire an outside counsel or outside party to conduct this investigation as an independent third party, the result you take into consideration, the jury instructions, like in California. They say well, let's see, this person received a fetish comment, said to stop. Two hours later it happened again and two hours after that it happened again, but this time they said fetish comment at a work trip. How would I feel in that situation? How would my mother feel in that situation? How would a younger person of both genders or all genders feel in that situation? Kind of taking that into account from an objective perspective is how I would reach that decision.
Speaker 2:And one of the things that I love and hate about defense counsel work pre-issue or pre-law suit is all I can do is make a recommendation. If this claim came in and it came when it was escalated to HR and I was told, hey, do the investigation or make a determination, what happened, all I can do is say, look, here's a memorandum outlining what I know, outlining the interviews I conducted, outlining the result and the investigation that I believe should happen. Here's my recommendation. And it's up to the company to make that determination as to how to handle it and it's really up to the company to kind of enforce it. But at the same time it's really hard because you and in these situations I represent the employer, not the employee If you conducted that investigation on behalf of the employee or the company, you, as a plaintiff's attorney, would probably have a different result or a different conclusion that I would have from the employer side. And that's where it becomes really difficult making that objective determination.
Speaker 1:The last thing that I want to talk about was in the example or in the post. The person said they had a total mental breakdown, took time off work, but this action by HR. This next action was HR wants to have a two-way phone call, which I don't know what that means. I'm just going to assume a regular phone call where we're talking to each other and refuses to talk over email, even though I don't have cell phone service. What are they going to say? Why phone only? So I have my ideas on that, but first I want to just see what you think and if you would have recommended to the company to handle it like that just over the phone, no email.
Speaker 2:Well, I mean, I guess for me I would say no, I want that to be in writing because, at the end of the day, if you made a certain determination off of an investigation that certain things happened or didn't happen, I'd want that in writing. To me it sounds a little fishy. It sounds like either a fishy or not, on the not spectrum, either the employee or maybe trying to conduct part of the investigation and might want to explain what they learned and why they came to that determination. On the other hand, though, they might be trying to tell the employee something off the record quote off the record where they know they screwed up, they don't believe it happened, and here's why, kind of demeaning her further again assuming it's a female of demeaning her further and kind of oppressing her further based on their lack of participation in the investigation process or to conduct a reasonable investigation. What are your thoughts?
Speaker 1:Well, the first thing I think is refuses to talk over email and only wants to do it by phone, is they're already expecting her to be setting them up for a lawsuit and they're trying to do whatever they can not to have additional evidence against them in a lawsuit and not being trapped. I think they're worried that she probably spoke to an attorney and now she's trying to get them to admit something that is going to be detrimental to the company if a lawsuit is filed. But one thing that's interesting here is I don't have cell phone service. That sounds like BS to me. I mean, everybody has cell phone service. I don't know who doesn't have cell phone service. But that brings up the question of does the employee at this point have to comply with the company's request to call and talk about this? Or if they told her listen, you have to come in and talk to HR about this and get interviewed about this. And could she potentially bring her lawyer with her if she had a lawyer to talk about this?
Speaker 2:Yeah, I know, good point Good point. It's unfortunate that there's not a lot of facts here to tell us exactly what happened or what we can have more of a directed or pointed comment on it. But yeah, this is definitely something. That's funny because this is probably something that happens every day in lots of companies.
Speaker 1:So yeah, I think you do, but you do have to come in. If the company asks or requests the employee, come in to talk about this and they're not allowed to bring a lawyer, that's something that the company is allowed to ask of the employee.
Speaker 2:How have the employee come out without a lawyer? Yeah, let's say you're like hey, we want to do an investigation.
Speaker 1:We're doing an investigation on your claims, yeah, and he said okay, I'll come in to talk to you guys, but I'm only coming with my attorney to talk to you. Does that something the employee can do? Is that something that the employer has to allow?
Speaker 2:Well, if that happens, I'm going to filibuster and not answer your question, because I think there's a better response, which is, if that happens, as an employer, you are either screwed or you have the perfect way to handle this properly, which is there's another attorney involved, you get your attorney involved and the attorneys handle it.
Speaker 1:Yeah.
Speaker 2:But at the end of the day, I'm not familiar with the law that requires that it could exist. I've never dealt with that situation specifically in the investigation stage. I do know that a lot of handbooks that I've reviewed over the years have included a provision relating to the employee's essential quote unquote required to participate in internal investigations relating to complaints. Especially, you think the employee would want to participate in their own sexual harassment investigation if they're alleging that harassment occurred A bit of a tangent. If the attorney is involved at this stage, there's a lot of problems, right, not necessarily for the employer, but there's a lot of problems.
Speaker 2:The plaintiff is either very overzealous and found an attorney who would participate in this for some reason at this early stage, and or the plaintiff is really trying to force something down the employer's throat.
Speaker 2:On the contrary, we don't have enough facts, but it could be a situation where the attorney's being involved because they're trying to get some sort of settlement on the company prior to litigation, which again, would usually happen after the investigation happened. So it's a very odd. It would be a very odd for an attorney to be participating in the investigation process prior to any adverse employment action being taken, because of the fact that the fact that it happened or didn't happen is part of the investigative process Because, again, the employer during, after the investigation might determine that it did happen, that this harassment was severe and pervasive. They might terminate the guy or whoever the harasser was and then offer some sort of enumeration to the plaintiff or the person being harassed because of what happened. So there's really no point. I don't think of the attorney being involved that early, and if they are, it's because they've already sent a demand letter and they really don't care with the investigation. What happens with the investigation?
Speaker 1:And personally, from my perspective as the plaintiff's attorney just to throw that in there I don't wanna be like an interloper at this point. I want the investigation to play out and to see exactly how the company reacts. Without me being in there, I wouldn't say tainting the process but, as you said, changing it, because now everything changes. Once they know that she has an attorney, the drawbridge comes up and the archers are on the Castle Tower gates and stuff like that. They're getting ready to gird themselves for a lawsuit. So I think that very much changes everything and as a plaintiff's attorney I would not take the case at this point because it's just well.
Speaker 1:First of all it's way too early. We don't know what the fetishy things are. We don't know what the attempts to get her alone look like and we don't know why the coworker thought things were weird. We do know that it looks like HR has made up legal determination already by saying it only happened once and is kind of referencing the severity, frequency, prongs of sexual harassment laws. So that kind of looks bad.
Speaker 1:Also, their attempt to only do things over the phone kind of signals this desire for a lack of transparency and a lack of documentation in talking to the person, but there's just nothing here that makes me want to just sign this case up right away and say we got a suit. I think a lot more has to play out and I think that's why this was a good example, because again we get to really riff on all the different facts that go into a case like this and all the little things that a case can turn on, depending on how a company handles it what the past history is of this manager, if he's done this before, is this person overreacting All these things that really go into a lawsuit. There's so many variables that need to be filled in before you know what's going to happen. I think this woman, if she called my office and had a question like how much my case is worth, there's no way to tell at this point what the case is worth or you're going to be successful until a lot of other things play out.
Speaker 2:And just to add to this, I've dealt with some very, very high profile attorneys, plaintiffs, attorneys who have been on national and worldwide media with their clients and even their demand letters, which are again very well written, regardless. But I think of the claims, those don't come and those people don't get involved until after a determination has been made one way or another, after the investigation or the harassment was or wasn't, or, in certain situations, retaliation or a wrongful termination or whatever. So it's always been, in my experience, after the fact.
Speaker 1:So I just want to add and I think a lot of people they want to hire an attorney during the process. But the court system really, in my view, is a rearward facing apparatus. The court gets involved once the dust has settled. The attorneys get involved once the dust has settled, once everything has happened. It's not a situation where you're going to hire an attorney and the attorney is going to get some sort of injunction against the company to make sure that the supervisor doesn't look at you anymore and apologize to you and all that kind of stuff. None of that is going to happen.
Speaker 1:It's something that people struggle with a lot because you have to go through it first before you know exactly what you're entitled to. Again, that can be very emotionally difficult on people and they want somebody to just come fix things. But again, this is not to fix things in medius ray in the middle of the situation. This is only really what a lawsuit does is attempt to get you compensated for a situation that has already played out, and that's really what I think people need to understand about the legal process and why it takes so long. You have to review all the documents. You have to do discovery by taking depositions and affidavits and statements from people. You have to look at everything from A to Z and if things haven't played out yet, then in my opinion and like I said, I think the role of the court is, once the dust has settled and you have, as a plaintiff, figured out exactly what your damages are, then you attempt to get compensated for it.
Speaker 2:Yep, agreed. That's a good segue to our break till our final part of this show, when we're gonna talk about I think, if I'm not showing the gun here talking about what to do after this attorney gets involved and after the claims are made by a party, and a little bit about how lawsuits work.
Speaker 1:Don't touch that dial. We're gonna say um, and you know about 500 more times than you need to hear it. We'll be right back.
Speaker 2:Welcome back everybody to the. What name do we call it this time?
Speaker 1:Going with employee handbook, I think.
Speaker 2:Employee handbook podcast. You got Arda, you got Ryan. We're two attorneys in California and some other states and we're talking about HR stuff, Fun and not fun. This is the time, man, you really saying before the break that we're gonna say oh, 100 times. Just hit me hard Because I've said it 15 times already. This segment, so this segment is a good segue to talk about what you would do and what we would do as attorneys if the person in that example aimed to Arda's office as a plaintiff's attorney, and how an employer or an employer's attorney would react to a demand or otherwise received from somebody like Arda Arda. So just to kind of go right into it, what would you do if this person came to you and said, hey, I have this claim, I wanna pursue my employer, go.
Speaker 1:Well, there's two things to do Considering or assuming I should say assuming that I felt like her claim was severe enough or had risen to the level where some action needed to be taken and I felt like there was some money that would be deserved If this played out through a lawsuit.
Speaker 1:I would say you have two options.
Speaker 1:You could either send a formal demand letter to the company or you can go ahead and file the lawsuit directly.
Speaker 1:And the difference there is, the reason you would wanna file a demand letter is for, first of all, I think, doing more research or investigation on what's going on. You could basically reach out to the company or their opposing or their outside counsel and say hey, listen, I have a client here who's complaining about certain things. I wanna do a little bit of an investigation. I wanna get the company side of the story and then go back and speak with the client about the company side of the story, see what their reaction is to everything and then make a determination from there. And that determination could either be to speak with them to go to mediation and try to get this resolved that way, or, if they're unwilling to go to mediation, or they're unwilling maybe to cooperate with kind of a informal investigation before a lawsuit is filed. Then you would have to file a lawsuit to be able to force the process of this company to be able to find out what's really going on.
Speaker 2:Have you ever dealt with claims or situations where the employer wanted to resolve the claims, where you couldn't do it by way of back and forth letters or phone? And dealt with something like an informal mediation or a pre-litigation mediation with an unbiased third party, just geez, to try to resolve the claim before you started the lawsuit.
Speaker 1:Yeah, I mean it's definitely happened before, but I would say that that would be something that was a lot more common five years ago. I think one thing that really made a big change in employment law in California was COVID. Before COVID, there was a lot less cases per docket, per courtroom, per judge, and judges had more time to be able to look at each case and want to take each case a little bit more seriously and let things play out and go to trial. Possibly, judges have gone from an average pre-COVID I think most judges have said about 500 cases, say, in LA Central District Court, in State Court at Stanley Mosk in downtown LA about 500 cases to post COVID about 900 cases. We are almost four years from COVID hitting. It was like March 2020.
Speaker 1:And that backlog still has not been cleared really and it's something that could end up staying around for a long time and that has meant that defense attorneys now have a huge advantage when it comes to cases like this, because they know it's gonna take years and years to be able to get to a trial if you're really gonna get to a trial and they're gonna really stall and stall and stall to create maybe a little bit of a division between plaintiff and plaintiff's attorney, because now plaintiff who's filed a lawsuit wants this to be over and over soon and they want their money and they want their emotional validation and they want things to be over so they don't have to deal with it and all the anxiety that comes with it. And defense attorneys will really play off that and try to create a frustration on the plaintiff side by maybe asking for a lot of extensions for depositions, not providing all the discovery right away and just all things that are typical of being able to lengthen the litigation process.
Speaker 2:Sorry to interrupt, but has the present value of money equation. I don't know if we remember it from eighth grade math or whatever level of math, but since, let's say, a case prior to COVID took a year, I say hallelujah if I could take trial by a year. Well, let's say, if it took a year prior to COVID to go to trial and be adjudicated and a result obtained to now after COVID hitting me three or four years, do you ever take as a plaintiff's attorney, the present value of money equation and although you're not happy with maybe what would be $100,000 settlement on a case pre COVID, now maybe a 40 or 50 or $60,000 settlement, based on the length of time that may take to get to a verdict?
Speaker 1:Yeah, that's a discussion you have to have with the client absolutely A lot of times. I'll tell the client it's better to have money in hand than wait to go to trial and through a trial process where you're not guaranteed that you're gonna win. And why wait two years? A settlement is basically an agreement where the plaintiff is trading the time it takes to get the money, to get the money faster. So it could be $40,000 if you settle in eight months and potentially $100,000 if you wait three years. So you're basically trading two and a half years of waiting time for $60,000. And that really is gonna depend on the plaintiff themselves.
Speaker 1:I usually would say listen, if you can get money in hand and you have an offer, I would take it, because you don't know what the hell is gonna happen in this intervening two and a half years.
Speaker 1:Something could happen, pop up out of nowhere and negatively affect the case and that $40,000 could not even be worth $40,000 anymore at a certain point. So, like I said a lot of times, I'll just go ahead and counsel the client to get the cash in hand. Get the hell out of there. I know that that may sound self-serving in a sense as an attorney, because, oh, you're not taking the claim seriously. But again, I mean the amount of times that I've seen claims go sour with just time and witnesses disappearing and all these little things that could negatively affect the value of the case. My advice is usually if you're getting a reasonable offer say even $0.40 on the dollar for something like this, it makes sense to take it to save that much time and that much stress and hassle. And if the client hasn't been through a deposition yet or spent money on taking depositions, then it's a good idea.
Speaker 2:Yeah, and just to kind of. I know we're gonna talk about how a lawsuit works briefly and extrapolate that in the future what? What does it cost the plaintiff to file a lawsuit in California, let's say in Los Angeles? I'm not saying just the filing fee, but depositions stuff like that. How much does it cost and how does that work?
Speaker 1:Well, there's a lot of cost involved. A big reason there's a lot of cost involved is because, like we were talking about just a second ago, the time it takes to get to trial means that you got to fill that time between filing and going to trial with substantive discovery efforts and getting things on file and getting people's depositions done and nailing them to answers, and the defense attorneys want to make you spend money and to show that you're serious about the claim. Usually what happens on employment claims? These are done on a contingency basis, not hourly, which means that the attorney will take money only after the case has settled and you're not paying the attorney on an hourly.
Speaker 2:Or in gambling terms on the if come Shay.
Speaker 1:Yes, I have no idea On the if come right.
Speaker 2:You only get paid if she gets paid.
Speaker 1:That's a craps thing.
Speaker 2:I don't know. Come bed is a craps bed, yes, but the if come maybe that's related. I don't know enough about the history of gambling. I do like craps though, but no like, for example as an employer.
Speaker 2:I'm paid hourly. My hourly rate as an attorney is X. My client pays me that every month based on the hours I work, along with the expenses like you referenced. But what you're saying is the clients would file lawsuits through your office with some sort of contingency fee where, whether or not the client may or may not pay their own costs whether the filing fee or deposition costs or all that stuff your you or your firm or people that work for you, are bearing the risk that you're not going to receive compensation in, I guess, filing and spending all this time over years to really get your client justice or what you think your client's justice can be. I think I know the answer and everybody listening all 11 people should know what the answer is really by now. But is that something you take into consideration when you take a case? Is that this potential cost and outlay of time?
Speaker 1:Yeah, and absolutely is, and this isn't something that is necessarily true of my clients all the time, but the average person is a moron, in my opinion.
Speaker 2:You know what.
Speaker 1:Is a moron.
Speaker 2:Moron.
Speaker 1:I very much could be the average person and be a moron I'm not ruling that out. But what I want as a plaintiff's attorney this is the type of risk you're facing is that in your deposition you get a client who's come in because they feel they've been harassed, they feel they've been discriminated at work. You get into a deposition. They ask them OK, so what are you asking for? How much would you settle for? Let's say, the defense attorney says that and I've had a client say well, I just want to get paid for my back pain.
Speaker 1:And you're just like you're helpless at that point as an attorney, because all the prepping you've done, all the explanation you've done of the claims, it goes out the window once that person, that plaintiff, is sitting there in a deposition. It's like you're sitting in the backseat of a car while they're driving and you're trying to give them direction and they're not listening to you, they're just going wherever the hell they want to go. And that's kind of what it feels like as an attorney when your client is in that position. You want to try to get things taken care of and settled before your client gets in that situation where they could possibly screw everything up. Because, as the plaintiff's attorney, as I was saying before, the defense attorney wants to make you spend money to show that you're serious about the thing.
Speaker 2:Exactly right, because, yeah, and my just to piggyback on that is, if I am working up a case from the defense perspective and I am propounding discovery and I am noticing deposition, I'm sending emails about your lack of response to my discovery.
Speaker 2:I'm trying to meet and confer with you on issues, I'm trying to talk to you and you're not being responsive in a reasonable amount of time not saying immediately, but let's say within a couple of days or weeks and have cases where people don't respond for a month, which I think is absurd.
Speaker 2:To me as defense counsel, that's the first thing I think of is that they don't value their claim, which then makes me want to push the gas more, which puts you, I would believe, in a lot of circumstances at a disadvantage, because I think I can take the upper hand in those situations and just beat you down with paperwork, beat you down with work, and you again, not being paid for this, may not want to do the work in order to overcome what I have put in front of you, to oppose my motion, to really put all your effort out, which and I say this with a very big caveat, of course we always advocate at the highest, utmost level for our clients.
Speaker 2:So I'm not implicating that any claims attorney would not be advocating properly for their clients. What I'm saying is that if you have a trillion dollar case because somebody lost their head and somehow lived, and now they're a trillion dollar claim, a PI claim, personal injury claim versus a claim where someone said that they were the person that got hit by a car but really they're the one that hit the other person, you're going to value those internally different if you're a contingency fee attorney or a plaintiff's attorney. So yeah, I use that to my advantage. Sorry, I know we're on a really big tangent.
Speaker 1:No, it was fine and I think, just to give a metaphor for that, it's like in basketball. In basketball, of course you want to play, you want to hit your threes, you want to be as pure as possible on offense and not gain the rules. But a lot of times the most successful basketball players are the ones that understand the rules and will get to the free throw line, even though that's considered maybe not the pure way to get points and compare it to hitting threes or dunking or whatever. But you're using the rules to your advantage and by getting to the free throw line, by getting fouled, that's what defense attorneys want to do. They're trying to stall the game, they're trying to get to the line and they're trying to get points using the rules by making the plaintiff's attorney have to work much harder.
Speaker 1:A plaintiff's attorney is usually in a much smaller firm. Defense attorney, like you said, is getting paid by the hour and they probably have a lot more staff to be able to dedicate to doing a lot of the discovery and paperwork. That will gum up the works for a plaintiff's attorney and if you're a plaintiff's attorney, you don't want to spend 10 hours drafting a response to a motion for summary judgment that a defense attorney is not happy to do, but at least they're getting paid for that 10 hours. And if you're doing five depositions as a plaintiff's attorney for all the witnesses and all the people involved, that's a couple thousand dollars each time that you might not get paid back for by the client and the client might not have money to even front. So these are all things that you have to determine. Which are the plays that you're going to make, because even though you have all these opportunities to prove your case by deposition, by hiring an investigator, doing all these things at the end of the day.
Speaker 1:If you know you're only going to make $60,000 on a case, you cannot go spend $40,000 on trying to litigate this case because that $60,000, well, you're going to take your portion as the attorney. You're going to pay that $40,000 than what the hell's left for the client, just a pistol of the client, who sat there for three years in this litigation process and now comes out with nothing because to prove their case you spent all the money that they got.
Speaker 2:Yeah, and I want to hit two points on this really quick. Is that so people out there that are listening that are like why would you take a $60,000 on a claim and charge your client $40,000 in fees or in costs and then take whatever your percentage is out of that remaining money? In California, employment claims under the government code and the Fair Employment Housing Act they have attorney's fees provisions. So if you go to trial and you win appeals and all that stuff aside, you have the right as the prevailing party plaintiff Again the employee, not the employer only in certain circumstances. But the employee has the right or their attorney, to file a motion for attorney's fees. So in a case where you might have won, let's say, say, $100,000 because of your harassment claim, your wrongful termination claim, retaliation claim, wage and hour claim, whatever, a lot of not all, but a lot of the causes of action in the government code in California or the Fair Employment Housing Act come with that provision.
Speaker 2:So you win a trial, you win some sort of amount of money, you're the prevailing party, your attorney files a motion. My experience unless it's a multi-million dollar verdict, you get a lot of times, if not all the time, the plaintiff's attorney will file a motion for fees grossly in excess of the amount of money recovered for the client. I have a lot of examples of this. Recent case I had the plaintiff prevailed on a claim for a timely payment of wages. It's a $90,000 award by a jury. The judge made the award but the jury awarded the prevailing party to plaintiff after a jury trial and the attorney's fees motion was in the hundreds of thousands of dollars.
Speaker 2:So in those situations the attorney will be compensated but they're not taking the money all from the plaintiff. For example, depending on the agreement with the attorney and the party or the plaintiff, a lot of that money is paid from the other side by way of attorney's fees. So just putting that out there to make sure that everybody knows that we're not and I say we because I'm not part of that but plaintiff's attorneys aren't preying on these people that have been harassed, discriminated against or suffered some sort of adverse employment action or wage claim or wage action. They're actually working with the law that favors employees in order to get them their attorney's fees to their attorneys in addition to the amount they've received by way of a verdict or settlement Again, settlements different. Usually don't get attorney's fees that way, but just want to make sure I threw that out there so people aren't thinking oh my god, my $100,000 claim that I think I have is really only worth $10,000 after expenses.
Speaker 1:Yeah, well, if it goes through and you win a trial.
Speaker 2:Right, exactly.
Speaker 1:But yeah, the reason that the legislators put that in there those attorney's fees is because when a defense attorney gets a $20,000 claim, wage claim, they know they can just wait it out and settle for pennies if it doesn't go to trial or if they make things go a long time.
Speaker 1:And they know that if you're going to trial you're going to have to spend 20 grand to go to trial and pay for the court reporter, for jury fees, for experts, for all these things that you're going to have to pay for. And so the legislature was like you know what we don't want employees and their attorneys to have to jump through all these hoops, and so we want to make it so that if you are a defense attorney who is playing hardball and trying to wait out the plaintiff's attorney, that you're going to pay for it in the end, that they're trying to encourage you that if you get a $5,000 or $20,000 claim or something low under $250,000, that instead of waiting it out and trying to win by attrition, that you'll see that the risk of potentially having to pay the plaintiff's attorney fees is going to make you want to settle.
Speaker 2:Yep, no, I agree. That's why I want to make sure everybody do that, so it wasn't like a predatory game. I again, as defense counsel, get paid by my clients employers, corporations, businesses. Plaintiffs get paid by their clients after, usually and this is not all the time, but usually based on some percentage of the recovery amount and or recovery of attorney's fees. I think we're running out of time, but I wanted to talk about how a lawsuit works. I think we should quickly go over it and then we can extrapolate later more as the nuance of the process. So really quick.
Speaker 2:As a plaintiff's attorney I already shed light on it earlier in this segment that in order to try to resolve the claims, you talk to the employer. Sometimes it works, sometimes it doesn't. If you're left with nothing else to do, employer is not paying, they don't agree for whatever, can't come to an agreement, file a lawsuit, and it's by filing the complaint in California, by filing the lawsuit. For filing you have to comply with administrative requirements, but that's a different conversation. But once the complaint is filed, lawsuit is started. Arta, do you want to talk quickly about what you do after you file the complaint and then I can wrap that up?
Speaker 1:Sure, just quickly, when you file a complaint you don't necessarily have all the information either. So filing a complaint and starting the lawsuit many times is just the beginning of a process of investigation. And now that the complaint is filed and an official lawsuit is out there, then that means that the law kind of steps in and forces we're not forces but requires the defendant to share information that they have regarding the claim that's been brought. Because if there's no lawsuit filed and I tell you, give me all these files and come and do a deposition and make a statement and all that, the defense attorney is going to tell me to get bent. But if there's a lawsuit, then they're required to participate in the process of the lawsuit and provide the documents and make people available as witnesses and other things that happen during the discovery phase.
Speaker 2:Yep, and so yeah, a quick process is complain, this filed, the employer has a certain amount of time. A California is 30 days. Once they're served, to file an answer or other responsive pleading, maybe a motion to dismiss, or California is called a DEMUR Some people say DEMUR and I think they're wrong. After that they go through a discovery. The court sets a hearing it's called a case management conference where the trial is set or that hearing itself is moved further and further until everything's kind of at issue and then the parties engage in discovery. And I say that if I could show you air quotes here, it's a big set of air quotes because discovery is a process of obtaining information, but diligence and attorney schedules make that process take a very long time.
Speaker 2:So let's say in a normal pre COVID world, you're conducting discovery by sending questions to opposing counsel, you're asking for documents from their client, you're subpoenaing third parties and you're taking the depositions of relevant parties.
Speaker 2:After that happens around a six to nine month process, depending on the case you can file some motions to try to dispose of the case from either side, which are called motions for summary judgment, along with other motions to preclude testimony, limit testimony, get rid of certain claims, evidentiary rulings all of that and then you lead to trial Again.
Speaker 2:Pre COVID, I think the courts tried really hard to get cases to trial within a year.
Speaker 2:I think, and don't quote me on this, but I think the new attempt by the courts is to get these cases to trial in two years and there's a limit that cases have to go to trial within five years of the data filing, which I think is gonna have to change because of COVID. That really put a humongous burden on the court, along with all the claims that were pending and the new ones that have been filed, and then you get your verdict and then, if you're the defense and you get what they call a defense verdict, you win. You pay nothing, playing against nothing. They're attorney suppers without being paid. And then if the plaintiff wins, like we talked about, they have a verdict for some certain amount and their attorney can file for fees, seek their fees incurred and of course there's alternatives and exceptions and appeal process and all that. But that's a very quick, dirty rundown of the process that I think we could spend hours and hours and hours talking about the new ones.
Speaker 1:Which I think we'll do next time, and we're gonna go ahead and wrap it up over here for today's episode four of whatever the name of this podcast is. Feel free to reach out to us to sponsor. If you'd like to buy us a coffee or something like that, that would be great.
Speaker 2:That's so funny. I was gonna say, hold up some random stuff in my office as a sponsor, but I don't wanna incriminate anybody or anything. So no, all is good. We love talking to everybody. All of you fan out there. Singular, we love you. Thank you for tuning in. This is Ryan Ellis.
Speaker 1:Art and Will DeBoer. Big shout out to our producer Matthew.
Speaker 2:Yes, thank you, Matthew.
Speaker 1:Matt, you know just, I'll send you some movies or something like that. Anyway, everybody take care. Thank you so much for listening, thanks, guys. So what is it?
