If you are an employer or employer’s representative you might find the following inside scoop interesting.
Recently I attended a continuing education course on employment and labor law for us attorneys. As is typical, there was an attorney who represents primarily employees (“plaintiff’s attorneys” we call them), an attorney who primarily represents employers (“defense attorneys” we call them), and an attorney moderator so that different perspectives are represented.
This is Part 1. Read Part 2 and Part 3.
Lessons learned, Part 1:
Small and Medium Businesses in California Sorely Need A Voice
The tenor of the course reminded me that small/medium businesses are largely left out of the conversation.
Employees were well represented. The plaintiff’s attorney panelist spoke with glee about suing employers, making sure to note how much attorney’s fees can be made in the process. Wage and hour claims and wage and hour class actions were his self-professed favorites.
The other two panelists represented relatively larger companies, one as in-house counsel for a multi-state employer, and the other as a defense attorney at a regional law firm with Fortune 100 companies as clients. Thus, larger employers were well represented.
Naturally, with a bunch of lawyers in the room, the discussion focused on litigation, class actions, and employers being sued. Litigation lawyers love suing, litigating, and trying cases. That’s what they are trained to do.
Some even think it’s a racket that is somehow collaborative – a young plaintiff’s lawyer once told me in an elevator as we headed to a deposition in a wage and hour class action that we had a “symbiotic relationship.” Can you believe that? I almost slugged him.
Sure larger employers, like the Fortune 100, 500 or 5,000, are targets. But they have the resources (in-house counsel and in-house human resources departments) to learn and follow the law. And apparently, even they still can’t get it right.
This course reminded me that, well, lawyers being lawyers, there is no shortage of plaintiff’s lawyers wanting to retire off of employers, large and small. And there are lots of big law firms who make a lot of money off employers defending employee lawsuits.
But there aren’t many employer-side lawyers fighting for the small/medium California employer to avoid the employee lawsuit in the first place. Lots of talk about small business being the backbone and creator of jobs in America, but not much help out there for those small/medium businesses.
Small and medium employers get sued too, but for them a wage and hour class action or other serious employee claim can put them out of business. And once any employer is sued, but especially small/medium ones, they’ve already lost. That’s because they have to pay their own attorney’s fees, win or lose, and if they lose, damages to the employee plaintiff and their attorney’s fees in nearly all cases.
Prevention – at an affordable price – is the key to success for the small/medium business.