Legal Drama

It’s a New Year with new seasons of our favorite TV shows. Too bad the legal dramas haven’t resolved to use realism in their scripts.

The Good Wife just gets worse and worse. In one episode, a divorce lawyer framed a client’s husband to look like he was cheating. If that weren’t enough, the firm lied about having a copy of a signed document from the divorce case. After a frantic search, the lead divorce attorney surprised the rest of the firm by magically producing the document in the 11th hour to present to opposing counsel.

In the following week’s episode, the law firm took tens of thousands of dollars in fees…by cashier’s check rather than cash.  Any lawyer knows that the cashier’s check is the equivalent of cash and must be reported.

We then have the client who is being hounded for representing an unknown business owner and refusing to tell our heroes who his client is.  He bases this refusal on attorney-client privilege. Of course, he has the same privilege with his lawyers and they could not have revealed the information. AND, as it turns out, he was lying. He actually was one of the three clients.

As usual, they make the judge look like a jerk.

Then, we have the state’s attorney co-opting a law firm employee to steal information (or the whole file), which she turns it over to the prosecutors.  Part of the basis is that “the good wife” forged a signature which is a felony for which she could be disbarred. 

Of course, she would have to be prosecuted by her husband. The employee turns over the file to hurt the partner who is being investigated-who actually did nothing wrong, except for introducing a bookie to his judge friends. That’s their problem not his.

If that weren’t enough, this show also makes the federal agents look like jerks and puts them down-primarily for being efficient.

I took a break from blogging about The Good Wife because the drama, in many ways, outweighed the legalities-but no more.  Sadly, even the drama parts (i.e. relationships) have gotten silly. 

Stay tuned for my next blog about the new TV version of The Firm.  Let’s hope it doesn’t disgrace Grisham’s classic legal thriller.

Attention Employers: NLRB postpones effective date...

The National Labor Relations Board (NLRB) has again postponed the effective date for the “Notification of Employee Rights Under the National Labor Relations Act” (Requirement). The Requirement was originally to become effective on November 14, 2011; however, the effective date was pushed back to January 31, 2012, and again to April 30, 2012 because of ongoing litigation regarding the constitutionality of the Act.

Under the Requirement, the vast majority of employers must conspicuously hang posters in the workplace to notify employees of their rights under the National Labor Relations Act (NLRA). Specifically, these posters provide employees with information about: their rights to organize or join a union, bargain collectively, or discuss wages or other benefits with co-workers, and provide examples of conduct which is illegal for employers and unions to engage in. The purpose of the Requirement is to make employees aware of the protections that may be available to them under the NLRA.

What Should an Employer Do With This Information?

            Nothing yet. If the Requirement becomes effective on April 30^th, make sure you hang an 11 x 17 copy of the poster in a place where you customarily post notices to employees and otherwise comply with the Requirement.

Even if the court strikes down the Requirement, you should review your employee handbook or employment practices to ensure compliance with the NLRA, including creating a social media policy. The NLRB has recently used the NLRA to reinstate employees in several cases in which employees were fired for posting negative comments about their jobs/employers because the posting of such comments was held to be protected activity under the NLRA. Make sure any such policy carefully defines what is and what is not allowed under the NLRA.

What Will Happen to Employers Who Don’t Hang the Poster?

           

            The NLRB does not independently audit workplaces to determine whether employers have complied with the Requirement nor does it initiate enforcement actions against non-compliant employers. However, an employee, union or other person can file an unfair labor practice (ULP) charge against an employer in violation of the Requirement. The NLRB has indicated that it may be willing to give an employer who fails to properly display the poster the benefit of the doubt (and assume that the employer was unaware of the Requirement) provided the employer immediately complies with NLRA. On the other hand, if the NLRB determines that an employer “knowingly and willfully” failed to display the poster, such failure can be considered evidence of an unlawful motive, which may lead to an enforcement action to correct an unfair labor practice. If the employer is found to have committed an unfair labor practice in violation of the NLRA, the employer may be ordered to cease and desist from such unfair labor practice and to take such affirmative action to remedy the unfair labor practice. Remedies may include, paying litigation costs, attorneys’ fees, and union expenses

The notification poster may be downloaded in 26 different languages from http://www.nlrb.gov/poster for free.

How to Stay Off the Naughty List at the Holiday Party

     Despite the altruistic intentions employers typically have for throwing holiday office parties, the combination of alcohol, coworkers and holiday cheer can have harmful effects on office morale. Rather than providing a venue to thank employees for their contributions and celebrate the season, these parties can end up in tears, misunderstandings, and even worse: lawsuits!

     To set a tone of temperance, remind your employees that normal work rules and standards apply to holiday parties (regardless of whether the party is on or off company property). Send out an office e-mail refreshing everyone’s memories of the importance of good behavior and include a gentle reminder of the office discrimination and harassment policies.

     Here is a top-five list of items to bring to your employees’ attention:

1. Lay off the eggnog (and other spirits of the season). It should go without saying, but it doesn’t. Despite stories around the water cooler of the last year’s holiday foibles, it’s almost inevitable that there is “that guy” who repeats the same mistakes from the year before. Don’t be “that guy”.

     If you’re going to serve alcohol, hold parties outside of the office, thereby shifting the responsibility of serving the alcohol to those with a liquor license and professional bartenders. Also, consider placing a limit on the amount of alcohol served (i.e. provide each guest with a limited number of “drink tickets”.

     Some people lose their inhibitions when they drink. This is not necessarily a bad thing if a drink gives you the courage to sing karaoke; however, sexual harassment by coworkers is at an all-time high at holiday parties. Unless your company has an employer liability lawsuit on its holiday wish list, keep your drinking and comments in moderation.

     Note to Employers: Designate a few managers/supervisors (to refrain from drinking and) to watch for over-consumption/inappropriate behavior. Stop serving alcohol well before the party ends, if there is a bar. Use the money saved on drinks towards a taxi service for your employees. Don’t encourage employees to drink too much (i.e. no drinking games). Also, be sure to serve food and leave out the mistletoe.

     Injuries occurring to employees at the party may be compensable through workers’ compensation and an employer may have liability for injuries caused by an inebriated employee leaving the party.


2. Don’t dress for the party as if you are auditioning for the: “What Not to Wear: Office Holiday Party” episode. Nightclub attire does not an office party attire make. You know how much your co-workers love to gossip so don’t give them anything to talk about. Avoid revealing or overly flashy attire.

     Note to Employers: In reminding employees that “work policies” apply, it might be best to indicate that the office dress code is similarly in effect at the party.


3. Don’t play hooky without a good reason. Even if the party is “optional” it is a good opportunity to make a good (or bad) impression on your coworkers. Don’t skip it if you can help it.

     Note to Employers: It might seem counterintuitive, but make attendance voluntary, not mandatory. This can encourage attendance by making the party seem like a reward rather than a burden; and some people are just not comfortable in these types of settings.


4. Don’t add people to the guest list. Unless an invitation otherwise specifies, office parties are for employees only.

     Note to employers: Consider inviting spouses, significant others or guests: they may help keep potentially unruly employees in check.


5. Don’t stay too long: Although it’s good to be enthusiastic in boosting intra-office morale, your enthusiasm shouldn’t involve closing out the bar! No need to ditch the party within minutes of your arrival, but at the same time, don’t overstay your welcome, especially if you’re overstaying your welcome at the bar!