Porter Law

An Ounce of Prevention is Worth a Pound of Cure

2024-10-02T17:42:35Z

The Massachusetts Appeals Court has issued an important reminder about the importance of preserving potentially relevant evidence once a party is on notice of possible litigation, and the serious consequences of failing to do so. The case was filed in the Superior Court’s Business Litigation Session, which typically hears complex commercial litigation matters, arising out of a high-end real estate development dispute. After the case began, plaintiff discovered that much of the relevant documentary evidence had been destroyed, including emails and text messages regarding the key issues in the case, after the defendant had received a pre-litigation “notice of major decision impasse” from plaintiff, whatever that means. While the Superior Court did not believe this communication was sufficient to put the defendant on notice that litigation was likely, a single justice of the Appeals Court disagreed, ruling that defendant “knew or reasonably should have known” that evidence relevant to a potential action needed to be preserved. Therefore, the Appeals Court issued a sanction for the spoliation (i.e., destruction or failure to preserve) of evidence that the jury could be instructed that it could conclude that the destroyed documents would have been harmful to defendant’s case, a very severe sanction.

Laying aside the merits of the underlying case or the correctness of the decision, the important lesson for both litigators and companies is to exercise great diligence in preserving electronic and paper documents when there is even a whiff of a potential dispute. Better to be on the safe side, and put a litigation hold in place, turning off all auto-delete functions and affirmatively instructing any even tangentially involved employees not to destroy any documents relating in any way to the issues in the case. Don’t want for a formal demand letter or a lawsuit to do so, as based upon this decision, that may be too late. Then, what might have been a very defensible claim may end up being a loser because the other side will be able to argue to a jury that the destroyed documents “must have contained damaging info” and you will be left trying to explain that it was actually just an innocent, harmless mistake. That is not a position you ever want to be in at trial and will likely force you to settle the matter for a far higher amount than would otherwise have been the case. Proving once again the truth of the old adage that an ounce of prevention is worth a pound of cure.

New Year’s Resolutions, and Reminders, for Employers

2024-10-02T17:42:40Z

One of the great aspects of our employment practice is that we represent both employees and employers, so regardless of who we are representing we have the ability to look at cases from both perspectives. A few issues seem to come up repeatedly, and are worth remembering as we enter 2023. 1. Avoid surprises. It is critical to provide feedback to employees on a regular basis, through check-ins and real time affirmation when things are done well and correction when they're not. There is no reason an employee should be blind-sided with a negative performance review they weren't expecting, because they thought things were going well. It is also counterproductive for the business, because if someone isn't doing their job properly, it wastes time and money to wait until review time to try and right the ship. Good coaching is so much more powerful in the moment. 2. Document, document, document. There are few things more challenging than when a client gets hit with a wrongful termination suit, and wants to defend that the decision was performance-based, but there is no documentation of the performance issues. Again, it is a matter of fundamental fairness to clearly communicate to an employee when they are not meeting the mark, but it is also essential to a proper defense in court. Document the issue, do so timely, and communicate the expected deliverable from the employee. Sometimes that is a hard message to deliver, but it is in everyone's best interest. 3. Void for vagueness. When managing performance, avoid subjective language, like "not a team player" or "poor attitude" which can mean anything. Focus on objective metrics, such as tardiness or missed work on specific dates, missing sales quotas, or failure to deliver work on time. And make sure you have the data to back it up. 4. No disparate treatment. Make sure that there is no unconscious bias in how you manage your employees. In disciplinary matters, be consistent in when you initiate discipline for certain infractions and apply disciplinary measures consistently. In promotion and compensation matters, audit your workforce to make sure that you are not unconsciously favoring one group over the other, especially groups that have been traditionally underrepresented in management. 5. Patience is a Virtue. Often when an employee is not performing, or needs an accommodation of some kind, employers can lose patience and want them out of there right away. That is very often a mistake, and can create liability where none might otherwise exist. It is critical for managers to exercise self-discipline in those situations, and take the necessary steps outlined above, to ensure that if the termination decision is challenged it will be defensible, and they won't seize defeat from the jaws of victory. 6. Empathy. Apply the golden rule to all, and treat them the way you would want to be treated. Even if you have to make a hard decision about an employee's status, treat them with dignity and respect, and don't turn it into "us against them", which will only make everyone more defensive and make management of the situation more difficult. Whether employees or management, we are all human beings with feelings, and using a little empathy in those difficult situations will often defuse the situation and even make a termination a little less painful and humiliating for the employee. None of these are particularly novel ideas, but they are good reminders as we begin the new year. It will also ensure that every company's greatest asset -- its people -- are happy and productive.

Having Fun Yet?

2024-10-02T17:42:45Z

A remarkable case just came down from, perhaps unsurprisingly, a French court, where a gentleman sued claiming he lost his job when he refused to participate in what he claimed were required extracurricular activities. In this case, he wasn't asked to go golfing or build a house for Habitat for Humanity. No, in a scenario straight out of "The Wolf of Wall Street," this young Frenchman claimed he was required to attend social events that included heavy drinking, and sexually promiscuous behavior, including an odd situation in which he was expected to share a bed with a colleague. When he refused, he claimed we was fired, as he was deemed to be "too boring." He won his lawsuit, giving hope to introverts everywhere who would just rather go home after work, or at most go to a sedate after hours event, as opposed to re-enacting "Animal House." While the case seems absurd, what is remarkable, even today, how many cases we see in which companies either encourage, or more often willfully ignore, excessive revelry among their employees at work, or work-sponsored events. And there is so much peer pressure, especially on younger workers, to fit in by doing things that make them feel uncomfortable, including drinking to excess. So perhaps this case will give them some additional support to say no when they might feel pressured to go along with something that makes them feel uncomfortable, which is a good thing. For these kind of alcohol fueled work events can have devastating effects on individuals who overindulge and act out in ways that get themselves fired and the company sued. Sadly, 'tis particularly the season for such workplace debacles. So what is the answer? Common sense. If you aren't comfortable attending a social event, or if you don't think you can handle yourself appropriately, don't go. And if you do attend, steer clear of the spiked punch bowl, have fun, but don't do anything that will land you in a meeting with HR the next day.

Keys to Successful Remote Work

2024-10-02T17:42:51Z

Since I started my own law firm, I have been working remotely full time, although like nearly everyone I sporadically worked remotely during the much of the pandemic. While working remotely has many benefits, including the possibility of greater work/life balance (even it just means saving an hour plus a day commuting), it also has its challenges. If you’re not careful, remote work has the potential to be isolating, and can stunt social and professional development, especially for newer workers. It can also eliminate the necessary psychological and emotional space between work and home, leaving folks to feel even more “on the clock” than ever before. So, what can we do about it? Here are a few ideas: 1. Develop a schedule for the day and stick to it. To avoid always being “on the clock,” create a set schedule at the beginning of the day and stick to it. Perhaps you take advantage of the lack of a commute and start work early, but if so, make sure you have a set time for lunch, and for when you’ll wrap things up for the day. For many folks that will be tied into their childrens’ schedules, but even if you don’t have kids at home (or at all), you need to give yourself time and space away from your work. It will also have the added benefit of making you more productive during your scheduled work times, as you will be refreshed by those intentional breaks in your workday. 2. Set up a separate workspace. If you can, set up your workspace in a location physically separate from the main part of your home. That way, you can go there for your dedicated work time, but when it’s time to shut it down for the day, it will be “out of sight, out of mind.” Otherwise, the temptation to check email one more time or work a little bit more on that document will be irresistible. 3. Be intentionally social. It is so easy to take our personal relationships for granted, so resist the urge. Reach out to your friends and colleagues, and schedule lunch or coffee at least once per week. And when that is not possible, call them. Notice I said call, not email. We all get dozens if not hundreds of emails a day, and there is nothing better than a call just to say hi. Don’t worry about being a bother, if the other person is busy, they can let it go to voice mail. You might be surprised by how much you lift your friend’s spirit as you lift your own, by spending 15 minutes just catching up on the phone. 4. Be professionally social. Join a professional networking group. Many employers will pay for it, but even if they don’t it is a great way to invest in yourself and make new contacts, which is so hard to do with everyone working remotely. Make sure they meet in person, as the last thing you want is one more virtual relationship. 5. Get outside and exercise. I am a big proponent of the gym, but there is something so beneficial about exercising outside. Even a 10-minute walk at lunchtime will yield tremendous physical and well as psychological benefits. Put that outside exercise time into your schedule and treat it like any other important meeting. 6. Get a dog. OK, this isn’t for everyone, but I found it to be my secret weapon against social isolation and stress. (Plus, he’s cute.)

Always Check for Insurance

2024-10-02T17:42:56Z

Interesting article on the Harvard affirmative action case in the New York Times. I will leave it to others to opine on the merits of the underlying case, with is being argued before SCOTUS next week. But there is a related case brought by Harvard in the District of Massachusetts against its excess insurer Zurich for disclaiming coverage. Harvard put its primary insurance carrier on notice, but allegedly failed to give timely notice to Zurich of the claim. The case is a good reminder to folks that whenever you learn of a potential claim, immediately review all of insurance policies to see where there might be coverage. Don't just stop at the first and most obvious policy. Maybe there is a EPL rider on a GL policy, or D&O coverage might apply. The point is if you don't perform that review, and do so right away, there is a chance that you might not be able to access coverage that might otherwise have been available. I have seen this a few times over the years and while these disputes typically settle, they take the focus away from the underlying dispute and generate needless litigation expenses. https://www.nytimes.com/2022/10/23/us/harvard-affirmative-action-litigation-cost.html

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2024-10-02T17:43:01Z

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