Labor / Employment, On The Job

Sometimes The Law Can't Save You

The law often struggles with the messy facts of employment law -- and too often it gets things wrong.

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Law books in a rowA few years ago, I read about a woman who sued her boss after he fired her because he was sexually attracted to her. She was a dental hygienist, and he was the dentist. Evidently at some point his wife got involved and demanded he fire her. As an employment lawyer, I had lots of questions. I was not completely surprised when the case was dismissed following a summary judgment motion. Even though I think it is bad law. Because the truth is, the law isn’t meant to handle everything.

I think about this often when I get calls from people who want to know what to do about a problem at work, and think I can help them because I’m an employment lawyer. Sometimes I can use my legal experience to help, but often the problems are things the law just isn’t set up to handle. Most often I try to hear them out and offer practical, common-sense suggestions that relate to interpersonal relationships. We bring our whole selves to work, the good and the bad, and sometimes who we are is the problem for our co-workers. And sometimes employers lack the will to do anything about that. Topics I hear often are harassment that isn’t actionable by co-workers, or sickness (personal or family) that impacts their availability for face time or even to work at all.

When I began my career, I had a lot of matters that involved the intersection of the Americans with Disabilities Act and the Family Medical Leave Act. I didn’t have a great answer for what happens to an employee (or what is the universe of employer responsibility) if he or she is diagnosed with a long-term and potentially terminal injury.

The First Circuit answered this question in a way only befitting of our current clime: your employer can fire you if you are very very sick and can’t come to work for a while, even if when doing so they probably violated the FMLA. Taymari Delgado Echevarria, an employee with a tumor that caused severe depression and extreme anxiety, lost her job, and there was nothing the court (said that it) could do about it. The facts are rather awful if you think about what must have been going on in the employee’s life. But this is the law, folks. Our system just isn’t set up for situations like that.

So what is an employee to do if they are dealing with a boss who is hitting on them because of a midlife crisis, or if the employee has a debilitating disease? I don’t know what to tell you, other than buy insurance and pray you stay healthy enough to work as long as you need to.

What should an employer do? I have a clearer answer for that.

  1. Have a good policy in place regarding leave, and the employee’s options. And be consistent with how you interpret it.
  2. Document. Document. Document. Every correspondence, every request, and every update should be properly reviewed and saved. An employer can’t follow a policy if they don’t document the process.
  3. Talk to an experienced employment lawyer if you aren’t sure. One of the things that makes the case of Taymari Echevarria so appalling is the fact that the company called her and tried to force her to resign. That should never have happened. And to make it worse, it was done by an in-house counsel. Don’t just talk to any lawyer. Talk to a lawyer who has experience as an employment attorney, and who can help you follow the law and appear humane while doing so.

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One of the things about both of these cases is, with a small change in facts, they likely would have had a very different outcome. And while I’m not sure Astrazeneca cares about the bad press their treatment of an employee going through a health crisis caused, the good doctor in Iowa may have felt some business pressure after all of the press his business received. If the dental hygienist had been in a primarily male field, I think that the outcome would have been different. If Echevarria had a more organized doctor, it is likely Astrazeneca would still be paying her a salary.

The law often struggles with the messy facts of employment law. And too often for my liking it gets things wrong. I don’t think you should be able to terminate someone because you are a horny idiot. I don’t think you should be terminating an employee who is going through a health crisis, particularly not if you are a billion-dollar pharmaceutical company and wouldn’t otherwise notice she was gone. But what I think doesn’t matter. As an employment lawyer, I can’t save the situation for you with any of my legal training. I can tell you what the law says. But the most helpful course of action in any situation is to pick a job that right for you, and to pick employees who will thrive in your environment. And to know yourself, or know your organizational culture, well enough to make the right choices.

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at employmentlawgurubr@gmail.com and follow her on Twitter at @HLSinDenver.

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