Friday, August 3, 2012

Workplace Hotheads -- Can They Be Sued?

The ABA Journal published an article about a news columnist in Alaska who responded to an inquiry by a law firm employee  who wants to sue her boss.  The article raises two very important questions -- Whether an employee can sue his/her boss for being a jerk; and on where should a person go for legal advice? 

The staffer feared one of her lawyer bosses who demanded his work be performed first.  She already had two priority projects on her desk from other other two "diva" bosses.  (By the way, who would you consider the diva at our law firm?)  He made a fist, put it close to her nose and demanded action.  When she tried to leave, he blocked the door and told her to sit down and complete his project. 

So what do you think?  Can she sue?  If so, under what theory?  Is this sexual harassment?  Is the action based on gender?  Was the act sufficiently serious?  The act probably didn't constitute battery since the diva did not touch her.  However, was it assault?  Could it be intentional infliction of emotional distress, which requires proof of conduct beyond anything tolerated in a civilized community? 

And if she could sue, would a lawyer take the case?  What are the damages?  There was no physical damage.  What is the emotional scarring worth?  And are attorneys' fees available? 

Interesting questions that I answer regularly in my legal practice.  Employers may act poorly, rudely, unprofessionally.  But is it legally wrong?  Can the action lead to a lawsuit?  These are questions I help my clients evaluate. 

I would never condone going after a person with clenched fists.  (By the way, a similar event happened to me on a job some 14 years ago.  It did not result in any physicality, but the experience was very unpleasant [although I could have taken him].)  What I have learned from my own experience and experiences of clients in this position is that when these unpleasant incidents with a senior level employee occur, there really is not a viable future for the victim at that workplace.  Yes, there may be a viable lawsuit in given the appropriate circumstances.  And a company should take serious action against anyone exhibiting physical or mental intimidation or violence.  Nevertheless, the victim won't ever be happy in that environment.  It's time to start looking for other opportunities. 

I can also say from very personal experience, that other opportunities exist.  You can find them.  You can create them.  The best professional decision in my life came when I created one of those opportunities and started this law firm with two lawyers, Bob Fishman and Michael Goldring, who I trusted and admired.  (I still do.) 

What about the second question -- who is a good source for legal advice?  I'll tell you this, it's not the newspaper.  It's not your neighbor.  It's not another business advisor.  It's not even a lawyer at a cocktail party.  It's a lawyer who you trust, and with whom you create a professional relationship.  That lawyer will take care of you. 

I tell my clients I want to be their attorney for the next 20 years.  (Yes, someday I want to retire.)  And after I am gone, I hope they will use my younger colleagues for legal advice.  You can bet that if I want a client to call me when issues arise over the next 20 years, I will do my best to treat them with respect and courtesy, and to provide the best in legal advice.  That's a promise in our office.   

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