I love the free enterprise system. But, it only works well if we are smart consumers. There are many sellers out there who will try to sell us things we do not need. My girlfriend was looking at a new car, recently. She asked for a breakdown of the total cost. She was quite surprised to see an extended warranty already included in the price. She had not asked for the extended warranty, and no one had asked her about the warranty. They just kind of slipped it in when she wasn’t looking.
The litigation business is like that, sometimes. I was reminded of that recently when I attended a mixer at a local business. When I told a smart business woman that I represent mostly employees in employment lawsuits, she made the cross symbol with her fingers like she was warding off evil spirits. She explained later that I was the reason small businesses shy away from actual employees. Some small business owners prefer to contract out their support needs. She provided the example of employee manuals that “have to” cover all situations and permutations. . . . Sigh.
When I got a chance to explain, I told her that no, these employee manuals only matter if someone is promoted or selected for hire in suspicious circumstances. They might also apply when a manager has not documented objective performance problems. It takes two things to create grounds for a discrimination lawsuit: 1) a “fishy” looking personnel action, and yes, 2) some evidence of discrimination. Would an employee manual ever lead to evidence showing discrimination? Maybe, but that would be extremely rare. What is really going on here, I am sure, is that some defense lawyers who specialize in employment law like to beat the drum for updating those employee manuals and prevent lawsuits. I recall one well known local defense lawyer posting on his blog a post titled, “The EEOC is on the Hunt, Are you the Prey?” See my prior post here. I found the title very funny. I, like most people familiar with he EEOC, do not think of them as a predator. The EEOC means well, but it rarely files suit. It rarely even conducts an actual investigation. Few employers are concerned about an EEOC investigation, because they know how superficial their investigations are and how rarely they conduct an actual investigation. But, by suggesting a sense of urgency, defense lawyers increase the number of calls for their services. Defense lawyers have to beat the drums a bit to acquire business. They have incentive to “puff” a little. Most defense lawyers, in my experience, are wonderful lawyers and excellent counselors at law. But, a very few are not too different from the salesman who tried to slip in that extended warranty on my girlfriend.
I tried to explain all this to the smart business woman I had just met. But, there are surely many, many more who fret much more than they should over the contents of an employee manual.