Explaining Employment Law to the Layman

 

(or Zen and The Art of Screening An Employment Law Telephone Inquiry)
By IMAD Y. ELIAS

 

I am of the opinion that the best way for a lawyer to screen an employment law phone inquiry is to first educate the caller about the law. If you spend a couple of minutes explaining the law to a prospective client, the interview will be much more effective.

 

For that initial interview to be informative but not very time consuming, it is important that the attorney retrieve the most relevant and important information from the caller about the potential claim. Unfortunately, most people have very little knowledge of employment law. Because of this, prospective clients tend to provide unfocused, irrelevant and lengthy information about whatever workplace trouble they’re calling about.

 

One way to remedy the caller’s unfocused and often irrelevant story about whatever happened at the workplace, is to ask a very detailed and long list of questions. This way, no potential case is rejected without getting all relevant information first. Sounds good, but this method has its own problems. For one thing, it is extremely time consuming. Also, the attorney won’t bother explaining the law to the caller, or why certain questions are being asked, in order to save time. This leaves the caller mindlessly answering each question, and wondering why the attorney is asking any particular set of questions. The caller often feels deprived of an opportunity to tell his/her “story” and many times feels un-listened to. This can create dissatisfaction in the attorney-client relationship right from the start. In other words, using this technique takes time and you may alienate a future client.

 

So we’re back to my initial point: Attorneys should educate their prospective clients about the law at the beginning of the interview. But how? Employment law is a very complex area of law. It involves many concepts, including discrimination , harassment , violation of public policy , whistle blowing and breach of contracts . Each concept has its own sub-category of issues. For example, disability discrimination cases are different from race discrimination cases. Even judges sometimes struggle with the many intricate legal principles in employment cases. So how does one explain all of this to a non-lawyer, and in a short time?

 

The answer is: 1. Talk about it in terms of concepts that an average person understands; and 2. Use old school teaching techniques to explain these concepts.

 

THE CONCEPTS.

 

There are three essential concepts that your caller needs to know about.

1. There is NO such thing as a “RIGHT to work” in California. Period!

2. UNFAIR or DUMB do not equal ILLEGAL.

3. There are a number of things that California has made ILLEGAL for an Employer to do to its employees. Employers are PROHIBITED from doing those illegal things.

 

THE TEACHING TECHNIQUE

It’s a basic technique:
1. What is the general rule? State it
2. Are there exceptions? If so, list them
Exception A
Exception B
Etc....

 

Combining the CONCEPTS and the TEACHING TECHNIQUES, here’s how the education of the caller would occur:

 

At the onset, the caller is likely to say a few random things that may not sound all that obvious or coherent. So I gently take control of the conversation and I say something along these lines: “Sir, I’m sorry, let me just stop you for a second. I’d like to quickly explain to you how employment law works in California, I think it will help you focus better.

 

There is one rule and one rule only in California law about employment that you need to remember: there is no such thing as a RIGHT TO WORK/EMPLOYMENT. Period! The caller might be shocked at this news, but he/she has now immediately been educated on CONCEPT NO. 1. I will of course quickly explain the rule: your job is given to you by your employer as a privilege and because you have no right, no entitlement to it, your employer can also fire you for whatever reason. It is called “At-Will” employment and it means the employer can fire you “at-will”..or for whatever reason they feel like!. If you really want to make the point, you can say: “No matter how great of an employee you are, never been late or absent, they can fire you because they simply don’t like you. It’s NOT illegal, quite the contrary, the law is on THEIR side, not yours.” By now the concept is ingrained in the callers mind out of simple shock.

 

If the caller continues to resist and “I can’t understand how it would be RIGHT for this supervisor fired me, an excellent worker, simply because he didn’t like me or for no reason at all”, you can correct the thinking by bringing up concept no. 2: “It’s not FAIR that your supervisor fired you just because he doesn’t like; It’s DUMB on his part to fire such a good worker for such a silly reason....but it’s not ILLEGAL and you CAN'T sue”.

 

By now, there is usually complete silence on the other line. But the education is not over.

“But, sir, what have we learned in school about rules? There are always EXCEPTIONS to the rule". In employment law, there are EXCEPTIONS to the At-Will rule.

 

Exception No. 1: If the employer fired you for any reason that has been made ILLEGAL specifically by California law, then the rule doesn’t protect them. California has laws that say: You can’t fire anyone for race, gender, national origin, sex, sexual orientation, religion etc...Does your case fall under THIS exception?”

 

If the answer is yes, then you can move on with the questioning. You will immediately notice however that the caller will not talk about irrelevant incidents at work. Instead, the caller almost magically starts picking the incidents that are more likely to fall under the above exception. Instead of “the boss doesn’t like me, that ‘s not right!”, you will hear something like: “well, I was called the N word by co-employees. The boss did ask them to stop even though they were his friends. I thought that was cool of him, but just 10 days later, right out of left field, he fires me and simply says ‘I just don’t like you’”. Much more focused recitation of facts, no?

 

Exception No. 2: If you have a contract that says you can only be fired for Good Cause, then the Rule doesn’t apply. Does you case fall under THIS exception (or do you have a contract like that?).

 

Exception No. 3: Whistle Blowing. If you told outside government agencies about illegal activities at work, and were fired, the Rule doesn’t apply. Does you case fall under THIS exception (or did you witness illegal activity and notify the authorities)?

 

Exception No. 4: Public Policy. If someone is fired for a reason that shocks the public’s conscience, then the rule my not apply. For instance, if you internally complained about some safety issue at work, and you were fired for doing so, this exception MIGHT apply. Does your case fall under THIS exception?

 

Educate your caller on the law using this simple technique and you will find your time was well spent!

 

 

• Discrimination
• Sexual Harassment
• Whistleblower
• Wrongful Termination
• Wages and Overtime Violations