National Underwriter
May 18, 1998
Risk Management/Employee Benefits
Plaintiffs' Lawyer Seeks "Evil Employer"
By David M. Katz

San Diego

A plaintiffs' lawyer acknowledged here that inequities in the tort system limit the protection that workers for small companies get against employment-practices abuses.

Since small employers don't have the "deep pockets" to lure employment-practices lawsuits, their workers are less likely than those at big companies to be protected against wrongful actions, according to Rod Bushnell, an attorney with Bushnell, Caplan & Fielding in San Francisco.
The issue of which employers get sued for bad acts in the workplace "is about economics," he said.

Mr. Bushnell was responding to a question from a member of the audience at a session on employment risks at the recent annual conference of the Risk and Insurance Management Society.
If lawyers don't pursue cases with small potential awards B as Mr. Bushnell had said was his practice B how would employees at small firms be protected against the potential "evil ways" of their employers, the questioner asked.

In response, Mr. Bushnell asked if discriminatory acts at small firms would go on in the absence of lawsuits. "Presumably, yes," he said.
Earlier, Mr. Bushnell had said that typically, he wants "to sue deep pockets. I don't want to sue churches."

While small employers tend to be the "worst offenders" in terms of employment-related wrongdoing, the lawyer said, the question for him is "Are they going to pay?"

Mr. Bushnell also said he wasn't looking to bring lawsuits on behalf of plaintiffs for such things as not receiving overtime pay or employee benefits entitled to them B "not the $5,000 to $10,000 case."

"I want to be able to expose the employer to hundreds of thousands of dollars" in losses, he said, explaining how he chooses which cases to take.

"I look for the evil employer," Mr. Bushnell said, giving as an example an employer who puts negative statements in a former employee's file after the employee has been fired.

Such an action is "sneaky," he said, and "juries hate it."

Wrongful termination cases may lack the immediate impact of, say, a case involving a physical injury that renders an employee paraplegic, Mr. Bushnell also said. "But if a jury is truly outraged" against an employer, he said, "they most certainly will give a multimillion-dollar verdict."
Among potential plaintiffs in employment cases, he said, "I look for somebody that's been terminated. [There's not] much damage if you don't get hired or promoted."

One kind of plaintiff that he's particularly interested in is "a middle-aged person with two kids in college" who has been fired, he said.
For such a person, termination is "devastating," he said, noting that "I need a plaintiff that's going to have some pain."

Typically, he doesn't select young plaintiffs in such cases as clients because "the wreckage of termination isn't there," Mr. Bushnell said.
Further, women are more likely than men to display such "wreckage" and "make better plaintiffs than men," he said, adding that single mothers can elicit an especially strong response from jurors.

Juries are also receptive to women who have been prevented from career advancement by "glass ceilings," he said. "When that happens, they often complain and are often terminated."

Such jury predispositions may be "unfair," he said. However, he added, "there's a perception that men will land on their feet" if they are fired, while women will have more difficulty.

Mr. Bushnell said that one type of employment case he favors involves a "breach of implied contract."

"Under California law, if you have long-term employment, you can have a right not to be terminated except for just cause," he said, adding that Along-term employment" could be defined as at least 10 years of service.
Mr. Bushnell said he also seeks out employee-termination cases that involve a "violation of public policy."

Such cases which involve the termination of an employee who is a "whistle blower," are difficult, however, because "jurors hate whistle blowers B they hate snitches."

Typically, seeing themselves as "white knights," whistle blowers set their own terminations in motion, according to the attorney. Such cases are hard to settle, because the plaintiffs tend to "want their final day in court," he said.

Further, employers "hate them," he said. "It's like . . . someone working undercover for the cops." Although, in general, he tries to settle wrongful termination cases, settling is hard to do "because that employer fired my client," Mr. Bushnell said. "It's a hard thing to fire someone," he said, noting that it often produces "sleepless nights" for an employer.
Employers are resistant to settling, he said, because they tend to think: This is the hardest decision I've ever had to make, and now I have to pay for it."

Another speaker, L. Paul Van Zuiden, a consultant with Tillinghast Towers Perrin in Chicago, said that employment practices liability has become a "boardroom issue."

Risk managers should make sure their companies' boards of directors review employment practices periodically in order to make sure "the firm is doing everything it can in this area," he said. Mr. Van Zuiden noted that 4 percent of the employment actions cited in a 1997 survey of 4,900 members of the Society of Human Resource Management named the president or chief executive officer of the company.

"That might not be much, but it's a lot if it's your president or CEO," he said. Mr. Van Zuiden also noted that 77 percent of the human resources professionals said they worked for organizations that carried no employment practices liability insurance or that they didn't know if their organizations carried it, according to the survey by Alexandria, Va.-based SHRM and the New York-based law firm of Jackson, Lewis, Schnitzler & Krupman.

Employment practices liability is "a cultural issue, and executive management must lead it," according to the consultant. "It's a non-delegable duty."

Senior executives "must establish the standards and live by [them]," he said. Managers need to educate and train employees in proper employment practices and talk to employees about employment issues, according to Mr. Van Zuiden. "It's hard to talk about B it's like talking about sex with your kids," he noted.

Employers must also be honest with prospective employees about job requirements in order to avoid lawsuits later on, he said. Mr. Van Zuiden said he's found this to be true in the consulting business, which has "high expectations" of job performance.