Plaintiffs Attorneys on What Employers Should Know Today

In a discussion led by employment law attorney Will Oden, two experienced North Carolina employment attorneys who represent employees shared insights on their respective practices representing employees, and best practices for avoiding or best navigating employee disputes.

At Ward and Smith's recent annual Employment Law Symposium, Oden invited plaintiffs' attorneys Faith Herndon and Denise Cline to shed light on how employers can remain compliant and avoid costly disputes with their employees and counsel like Faith and Denise.

The panel discussed, among other topics, issues with remote work, the enforceability (or lack thereof) of non-compete agreements, preventative measures for employers to follow in communicating with employees, why refraining from retaliation is essential, and tips on how best to approach dispute resolution.

Remote Work and Accommodations

The increased involvement from insurance companies has impacted how both attorneys handle cases. “Sometimes it’s for the good, when there’s someone from outside the company who can be more objective. Sometimes it makes it more complicated,” said Herndon, a graduate of Yale University who has been a practicing attorney since the 1980s.

Remote work is a form of accommodation employees have requested, especially since the pandemic. “It can be difficult for an employer to successfully argue that a job cannot be done remotely if it was permissible during the pandemic,” explained Cline, who earned her Juris Doctorate from the University of North Carolina in 1983.

Both attorneys explained that employees can feel a tremendous sense of frustration when there is no explanation as to why an accommodation request has been denied. “It tends to come across as uniformly cold to a lot of people,” noted Herndon.

Both attorneys felt this was one of the most challenging areas for managers and internal HR to handle because there can be many complicated and even gray areas.

Non-Compete Agreements

Both Herndon and Cline noted that the use of non-compete agreements has not abated, even in the face of a national movement aimed at their restriction. The attorneys also opined that boilerplate non-compete agreements are mostly unenforceable.

Given the nature of litigation, cases involving enforcing non-competition agreements can be extremely expensive for employers and can still result in a negative outcome:  "When a non-compete is blatantly non-enforceable, and there is no consideration involved, it can be a slam dunk,” mentioned Cline. 

An Ounce of Prevention

Due to the significant expense involved with litigation, all three attorneys—Oden, Cline, and Herndon, recommended searching for an amicable, out-of-court solution, where possible.

When dealing with a layoff or termination, especially when an employee has been with a company for a long period of time, people want an explanation other than it was simply a business decision. Usually, the cases that would have been the easiest for employers to avoid involve a lack of explanation.

“If you don’t treat the employee with some respect and provide an actual reason why they are being terminated, they are going to want [to hire] an attorney,” Herndon explained.

Similarly, Cline said it is essential to show respect and think about the feelings of the employee.  “They’re going to be calling us if you march them out of the office in front of their co-workers instead of going through an interactive process for terminations,” noted Cline.

Organizations that believe in the absolute hierarchy of the management structure do so at their peril. Managers are not always right, and many of the cases that Herndon argues result from senior-level executives automatically backing decisions made by lower-level managers without considering the subordinate employee's position.

When employees see a problem isn’t going to be fixed, they often move forward with filing a complaint and/or hiring an attorney.  Both Cline and Herndon recommended that all employees who are being placed in supervisory positions be trained on how to properly interact with employees who report to them.

Transitioning a high-performing employee to management can seem like a no-brainer; however, as Herndon pointed out, training those employees on the latest human resources laws and regulations is vital, as superior job performance does not always equate to good managerial skills.

Avoiding Litigation

The panel generally agreed that in most circumstances, attempting to resolve an employment dispute through settlement negotiations, mediation, or another form of alternative dispute resolution is often the best approach.

Involving the parties in a face-to-face, mediation type of setting is ideal. “Resolving an issue prior to a court filing means my client doesn’t have to suffer through the difficulty and emotional turmoil involved with litigation,” said Cline.

Many clients do not realize that their cell phone, technological footprint, personal information, and history can all be a part of discovery. Turning over personal information and having it examined under a microscope can be highly disruptive, but that can be avoided if the dispute is resolved in the context of pre-litigation mediation.

It is also worth noting that technology has impacted society in a number of meaningful ways, one of the most important being that individual actions and conversations are often recorded. “The chances are strong that you could be recorded while having a sensitive conversation,” added Cline.

Avoid Retaliation

Both Cline and Herndon shared that retaliation claims can be especially damaging to an employer.  “It’s hard for people to not just automatically retaliate, whether it’s in the form of actively retaliating in a hostile way, cutting them off, or being cold,” noted Herndon.

Retaliation is illegal and must be avoided. Further, it can be difficult for an employee who complained to move past the situation that originally created the problem if that individual feels that they are being treated differently because they complained.

In some cases, employers and managers tasked with supervising an employee who has complained may be fearful that they will say or do the wrong thing. “Sometimes (the behavior) may be retaliatory, and sometimes it may be fear-based,” said Cline, “and I’ve had cases in which [that distinction] became very important.”

Even something that appears innocuous on the surface may become a sticking point, such as whether an employee received an invitation to a birthday party where coworkers would be present. “That may or may not be a legally recognizable harassment, but they certainly feel it,” added Cline.

Working to include the complaining employee as they were included prior to the complaint helps to avoid the appearance of retaliation.

Charting a Path to Resolution

As it is with so many things in life, preparation is the key to resolution. Cline pointed out that the settlement process is smoother when she faces a well-trained HR staff and management side employment counsel on the other side of the negotiating table. “It’s much easier because we’re on the same level, and we can talk turkey about what happened,” she said.

A team that is well-versed in employment law and regulations can also help create a successful path forward. In terms of avoiding lawsuits and the type of reputational damage that results in a mass exodus of clients and/or employees, having the right team in place is essential.

Attitude is a little thing that makes a big difference. “Coming in with a slash-and-burn attack mode is rarely successful,” Herndon explained. “Most of the successful mediations I’ve done involved a company representative who has been able to put emotions to the side and negotiate objectively.”

The #1 Non-Monetary Factor in Employment Disputes

Aside from a monetary recovery, both Cline and Herndon noted that sometimes an apology may move the needle toward resolution of the dispute.

Herndon shared that people want to hear the company admit that something needs to change. “When employees don’t get the apology, they look for money because that is the only way they feel they can hurt the employer and make a positive change,” noted Herndon.

The dignity of the entire process is also important. “Employees want some sort of recognition that they are valuable and have done a good job,” added Cline.

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