Defending Management in Employment Litigation

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From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Aaron Taylor interviews an employment defense litigator who discusses his experiences defending management in actions taken by employees and unions.

Aaron Taylor:

We're joined today by Matt Parker, a 2009 graduate of Boston College Law School. He's an employment defense litigator in Rhode Island where he mostly defends management and actions taken by employees and unions. So Matt, your firm can be best described as an employment litigation boutique. Traditionally, however, these practices are confined to larger regional or national firms. So you were the third lawyer at the firm. Is the firm still about the same size or has it grown? Has it gotten smaller?

Matt Parker:

No, actually it's grown. It was just the three of us for about a year and a half, and then we are joined by three more lawyers from a different firm in Providence that merged with us. And just this past spring we brought in another attorney and we've picked up some associates here and there along the way. So we have about 11 lawyers now.

Aaron Taylor:

And so is this a reflection of increased business? What's the motivation behind the increase in size?

Matt Parker:

Part of it's increasing business. The more clients you have and more lawyers you have to service them, the more money you can make. But it's also a way to add value to our current clients. For example, the three of us, when it was just three of us, really specialized in business litigation, labor negotiations and defense of employment claims. But we've brought in some other labor specialists. We've brought in some employment specialists, so they would handle cases such as teachers challenging their termination, it's sort of a whole different world when it's public schools. And we've brought in some other business litigators.

Aaron Taylor:

Of course, at an employment defense litigation firm, litigation is a big part of what you do, a core to what you do. Are you always in court though?

Matt Parker:

No, unfortunately. I wish I was. I have the opportunity to get into court for trials maybe once every three years. I had a trial this past August. I've got another trial coming up in October, but they're usually few and far between, and I'll get into court occasionally on discovery disputes or rarely on a motion to dismiss or some motion for summary judgment, a dispositive motion. A lot of what I do is research and writing briefs, preparing for and taking depositions, defending depositions. There's other context in which I'm in an adversarial proceeding, but it's not really court, like an administrative hearing before an agency.

Aaron Taylor:

So describe these proceedings, the arbitration hearings as well as the administrative hearings. They're adversarial in nature?

Matt Parker:

Yes, usually. An arbitration is sort of like a mini trial. Usually you have a neutral arbitrator or panel of arbitrators, the grievance, the person who was fired or they're challenging some discipline, puts on their case and then the employer defends it. It's like court, but usually subject to much more relaxed rules of evidence. You're not in front of a jury, so if you make a mistake there's a little bit more forgiveness from the arbitrator.

Aaron Taylor:

As opposed to other fields where you go to court to resolve many of these issues. What is it about your area of law that puts arbitration and administrative hearings at the center of it?

Matt Parker:

In the field where you're dealing with organized employers, employers that have a union of employees that have banded together to negotiate a collective bargaining agreement. Usually collective bargaining agreements have provision stating that any dispute under the agreement relating to it needs to be arbitrated. And I think it's just because those disputes are fairly commonplace, depending on the employer obviously, but there could be several of them each year that relates specifically to individual employee's termination or that relates to the way somebody's getting paid, how you're calculating overtime. And it's more cost-effective for both the union and the employer to put that into arbitration than go through all of the rigamarole involved in going to court with discovery and depositions and all that. It's a much more streamlined process.

In the context of executive level employees, a lot of them have written contracts too. Usually it's in both parties' best interests to keep it in a private arbitration proceeding, than have disputes aired out in public. If, for example, you were to hire me for your company as your CEO, we'd write it into my contract that any dispute between us goes to arbitration so that if I accuse you of age discrimination for firing me, that isn't aired out in public. On the other hand, if you accuse me of poor performance in doing a really bad job, that isn't going to be aired out in public and hurt my chances with other employers.

Aaron Taylor:

So one of the fundamental differences is that these proceedings are private and therefore not subject to disclosure laws and things of that nature?

Matt Parker:

Yeah, almost a 100% of the time there. There's certain kinds of arbitration that are really the exception, but generally speaking, especially with private employers, it's an entirely private proceeding and it's definitely a lot more streamlined.

Aaron Taylor:

So what about the underlying presumptions? In typical court, the moving party, usually the plaintiff, has the burden of proving the case. How does that work in these proceedings in your area?

Matt Parker:

Well, it sometimes switches. Usually that's the case. Usually the plaintiff has the burden of proof. So, just to stick with the analogy I offered earlier where, let's say again, I was suing you for age discrimination and I filed a demand for arbitration. More likely than not, I'd have the burden of proof in that sort of proceeding. But under a lot of collective bargaining agreements, again with unionized employers, if an employee challenges his firing, it's the burden of the employer, most often, to prove that they had good cause for that termination. So the employer would go first. And it's just because private employers that don't have collective bargaining agreements, they can fire somebody for any reason or no reason at all. But under a collective bargaining agreement, you sort of give away that employer's right as part of the contract with the union.

Aaron Taylor:

So of course you represent management typically in these disputes. Which side do you think has the advantage in most of these cases? Or is there an advantage for either side?

Matt Parker:

In my experience, it's pretty impartial. I think that there is a perception that grievance arbitrations under collective bargaining agreements involving unions can be a little bit more friendly to unions and employees than to the management side, but hasn't been my experience. You're dealing with arbitrators who are professionals, they do this day in and day out. They often have dozens of these cases going on concurrently, they're experts. They can usually cut to the dispute pretty quickly and usually you get a pretty fair outcome. You give something up, you don't have the same appeal rights that you would in court. Usually it's next to impossible to overturn an arbitrator on appeal.

Aaron Taylor:

So what are some of the more common reasons an employee would file a claim in your experience?

Matt Parker:

Usually everything starts with an employee getting fired or losing their job. They'll bring a claim either first in an agency like the Commissioner For Human Rights, or the EEOC, or in court alleging wrongful discharge, and that's what sets you off and running.

Aaron Taylor:

Sounds like you have state options for potential relief, as well as federal options for potential relief. Is it the employee or someone else who decides which avenue the employee takes?

Matt Parker:

Usually the employee. It's usually the plaintiff's prerogative to choose what venue they want to be in. There are some claims like claims under Title XII, claims under the Americans with Disabilities Act, age discrimination statutes that need to go first to an agency to be vetted. And so in those cases, the plaintiff first needs to file a charge of discrimination in an agency like the Equal Employment Opportunity Commission, and it sits there for a while. They'll conduct an investigation and maybe go to a hearing, but nine times out of 10, it usually ends up in court once it's been in the agency for a set period of time.

Other claims like breach of contract or a claim for unpaid over time. Those sort of things, usually a plaintiff can go straight to court. And so they have a decision to make as to whether they want to proceed first in state court or federal court. In my experience, usually the plaintiffs prefer state court. I can think of several reasons why that might be. My impression is it is probably because the rules in federal court tend to be, at least in my jurisdiction, applied a little bit more strictly. Plaintiffs think, and it may not be fair to the state court judges, but they think that they have a better shot and a more sympathetic ear in state court.

Aaron Taylor:

So there's an element of venue shopping that goes on?

Matt Parker:

Oh, sure. Yeah. And the employers will do what they can to find the most favorable venue too. If the plaintiff brings a claim in state court, but there's anything that smells like a federal claim in their complaint, then the defendant might try to remove the case to federal court. And that's usually one of the first things that you look at as a defense attorney, is what grounds do we have to get this into Federal court?

Aaron Taylor:

So Matt, say we have a scenario where an employee is claiming that they were overlooked for a promotion based on their gender. How would a claim like that proceed through to resolution?

Matt Parker:

The employee, called the claimant, would file a charge of discrimination in an agency such as the EEOC, the Equal Employment Opportunity Commission, they have investigators at the agency that open up a file, they'll contact the employer and request a response. The next step on my end is I get a call from my client saying, "Hey, we received a copy of this charge in the mail. Can you represent us?" We take the case, file an answer similar to the answer you'd file in court, admitting or denying the allegations of the charge. And then you actually submit a narrative position statement.

And so in the case of, let's say, a female employee feels like she was passed over for a promotion based on her gender, we might lay out, "These are the other candidates who we considered and this is why they were more qualified." You might attach their resumes, for example, or their performance reviews and lay out the reasoning. So once the employer in a discrimination case has articulated, just articulated, not even proven a non-discriminatory reason for its decision, then it puts the ball back in the court of the claimant to prove that that stated reason is just pretext for discrimination.

Aaron Taylor:

So how do you go about writing a position statement or at least assisting the employer in writing the position statement?

Matt Parker:

I'll have a conversation with the client, whatever manager or supervisor made the relevant decision, and ask why they made that decision and try to get at what non-discriminatory reason form the basis for passing that person over for the promotion.

Aaron Taylor:

At that point, if there's a prima facie reason or an apparent non-discriminatory reason for the decision, then the burden shifts to the plaintiff?

Matt Parker:

Yeah, so let's say I have that conversation with my client and I understand they hired a male employee for the supervisor position instead of the female employee because he just had 10 more years of experience and training for the job. I'd file my position statement, I'd include whatever evidence attached to it as exhibits and then suggest at the conclusion of the position statement that the agency dismissed the claim for that reason. Usually what happens next is the agency sends requests for information to the employer to flesh out a little bit more of that stated defense. That they're not apt to just take my word for it, but usually they'll follow up with some, they're sort of like discovery requests that might ask for what other claims of discrimination has the company defended over the past five years? What is the gender makeup of all of the employees at the company? Are 99% of the people there male? That might raise an inference that the agency can make, that the reason I included in my position statement is just a lie.

Aaron Taylor:

Are you subject to a particular legal standard? What is the standard that the plaintiff has to prove in order to be successful?

Matt Parker:

The agency is prosecuting the claim for the employee. And so in order to get into court, the agency needs to find it's more likely than not that the employer engaged in discrimination. If the odds are more than 50% that the real reason for passing that person over for a promotion was her gender, then they can issue an actual complaint against the employer and take it to court.

Aaron Taylor:

Are there any scenarios where you interview a client in preparation for the position statement and you advise the client that they should probably settle based on what they have communicated to you?

Matt Parker:

More often I end up taking a look at what the plaintiff has included in their charge and they're pretty detailed. They'll have quotes from supervisors what was really said to them, other instances of perceived discrimination and I try to make a judgment call based off of that and based off of my subsequent conversations with my clients as to how expensive is it going to be for us to win if this thing goes to the distance and what are the odds that we do win. I can't identify in my mind right now instances where I feel like, "You know what? I think you discriminated against this person." But I can think of several where it just made financial sense to try to settle the case early on rather than spend thousands of dollars on legal fees even though they might prevail in the end. Because you can usually get rid of some of these claims for a pretty nominal amount of money.

Aaron Taylor:

And does that usually mean a settlement or a reinstatement to a position or what's the nature of what the plaintiffs want?

Matt Parker:

It could be both. If the plaintiff goes to distance, under law, they're entitled to be reinstated. That's sort of a stick they can swing at the employer to exact a bigger settlement payment if the employer doesn't want to rehire them. Everything's on the table when you're discussing a potential settlement, whether that's including back pay, front pay, reinstatement, a transfer to a different position, whether you're going to contest their unemployment claim. Those are all different variables that you can play around with to see if there's a settlement you can reach.

Aaron Taylor:

And in terms of fees, do you all work on a hourly fee basis or is it a flat fee or value fee? How does that work generally?

Matt Parker:

It's a variety. It really depends on the client. Generally, management side, attorneys charge hourly, so that would sort of be the standard. But this day and age, you can't assume that a client is going to be willing to pay your hourly rate indefinitely. So they might try to negotiate a flat fee. That would be sort of a hybrid. If a partner is charged out at $500 an hour and an associate would be charged at 250, you try to find a middle number that would cover both attorneys time. That way the firm can make money because they have the associate who would normally be charged out for less money, do most of the work. But on the other hand, the client sees the benefit of having a partner work on the case too for less than what he or she would otherwise charge.

Those are the two most prevalent fee models, hourly and the flat fee. But you can also negotiate, "Listen, for this six months, this is all you're going to have to pay for legal fees." But it's really hard in litigation to estimate how much we're going to have to put into a case. So those sort of arrangements tend to be less popular with the attorneys, although they're usually very popular with the clients.

Aaron Taylor:

I could imagine. Is there anything you don't like about your work?

Matt Parker:

I don't think so. I chose to do this because of the variety as compared to straight up business litigation. Here you're dealing with real people who have human stories and emotions, so you get pretty interesting facts that you're dealing with on a day-to-day basis. Generally the employers want to do the right thing. They want to pay people the right amount of money, they want their employees to like where they work, so I like my job, I like the kind of work I do.

And the benefit sometimes of employment cases is the discovery at issue can be a little bit less than a huge business dispute. In a discrimination case, often, the relevant documents are a bunch of emails and the person's personnel file. So you compare that to your big dispute between two companies about who owns a patent or something and the amount of discovery in that sort of case would eclipse what you would have in a employment case. People like me, more mid-level junior associates, they can do the more interesting stuff rather than spending the whole case doing document review, you get to work on writing pleadings and you get more experience, faster.

Aaron Taylor:

So depositions and witness interviews are a core function of your work. How do you go about preparing for these proceedings and how are they different from say, examining a client in the context of a trial?

Matt Parker:

Well, you don't know what other people are going to say when you go into a deposition or a witness interview. So that's the big difference between those sorts of meetings, or proceedings, and trial. When you go to trial, you've already done all the depositions and interviews. So even if you're cross-examining the opposing party, you better hope you have a good idea about what they're going to say. You never want to ask a question you don't already know the answer to. Usually witness interviews are extremely open-ended. You probably read the complaint and you have an idea of what the relevant issues are, and you try to take the witness through the complaint and get at what information they might have that could be relevant to it.

In a deposition, you have done a lot more work. You know what your defenses might be already to the claim. You've probably researched what the burden of proof is, what the required elements are, and you want to try to have a very thorough checklist going into that deposition about what questions you need to ask to elicit the testimony that you need to use to support those defenses. I spend, usually, three or four times the amount of time I'm actually in the deposition preparing for a deposition, going through all of the documents that we've already exchanged in discovery, going through the other side's interrogatory responses, going through any other former testimony by that witness in other depositions or other cases, just trying to identify anything they could potentially be called to testify about at trial, so that when trial comes, I already have an answer from them, sworn under oath, on the deposition transcript that I can use to keep them on script.

Aaron Taylor:

I imagine many of your clients, which are businesses, employers, they have employees in different states. Do you do a lot of travel, conducting depositions, interviewing witnesses, so on and so forth?

Matt Parker:

For interviewing witnesses, yes. For depositions, typically not, but it depends. Usually the lawyer taking the deposition can have it noticed to be at his or her own office. So obviously that's my preference, although sometimes you need to go to the witness if they're a total third party. So we'll travel for those sort of things. My firm is in Providence, it's pretty easy for me to drive up to most places in Massachusetts where I would've cases or other parts of Rhode Island in a day. So I don't need to fly around a lot. But if I'm doing witness interviews, I always go to the place of employment, the business or the school or the hospital, just so that I can be with them on their own turf, make them feel comfortable, get them to open up to me, because I want to make sure that I hear everything, everything. And sometimes it's a little bit less confrontational to do it at their place of employment rather than my office.

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