Rose-Ellen Fairgrieve

Rose-Ellen, as an employment and labor law attorney with over 20 years of experience, could you share with us your journey into specializing in employment law and what inspired you to focus on this area?

At the time I started practicing Labor and Employment, I was working as a Deputy City Attorney in San Francisco. The City Attorney's office represents all departments and offers opportunities to practice in many different areas of law. I had been practicing litigation in the area of Code Enforcement where we worked with the community, using civil nuisance abatement tools to solve neighborhood problems. I did this for about nine years and felt that I wanted to expand my experience into a new area of law.

Employment law has always interested me because of the human factor. I was a sociology major in college, and so the subject matter is fascinating to me. Every case is a story about how people interact in the workplace. Employment cases provide the opportunity to regularly consider how employment laws affect society on a bigger scale than just one case. Additionally, I had supervised a team of attorneys doing code enforcement, and I learned a lot about what it means to be a supervisor, and the challenges and opportunities that such a position brings. Those factors made me interested in practicing employment law.

What do you consider the most significant challenges in employment law today, especially in an evolving, post-Covid 19 workforce?

Obviously, COVID-19 really changed how people feel about work. In particular, both employers and employees learned a lot about how work can be more flexible and accommodating to peoples' lives.

This is a challenge for employers because on the one hand, having everybody in one place doing the work together really lends to the team building aspect of getting the job done.

And whatever industry you're in, that's a positive factor. But at the same time, employees have learned a lot about how they can be productive and effective without navigating a long commute and the structure of having to come into a workplace every day. Other challenges that COVID-19 created vary by industry, but they include learning new ways to do just about everything, whether it be communicating, ensuring employees are safe, using technology, or maintaining the company culture.

How has the rise of digital platforms and remote work affected employment law from your perspective in the San Fransico Bay Area?

I think digital platforms are a tremendous opportunity for increasing efficiency in any kind of business; the creativity and ingenuity that goes into the systems and processes that help us work better is just astonishing. So, from the perspective of business in general, it is obviously a net positive. Of course, from an employment perspective, the increased use of technology can pose a lot of challenges. Just one example is in regard to the resources that companies invest into their product, whatever that product may be. With digital platforms, it does make it harder to ensure you're maintaining control over what your employees are creating, and what they do with that information when they leave. You can put controls in place, you can secure systems and data, but when you have people working out of coffee shops on their personal devices, there are limitations to how effective that is.

Can you walk us through your approach to handling employment disputes, especially in sensitive cases involving harassment or discrimination?

As to my approach, I would go back to my interest in the human factor of employment law and how it really is about individuals who are on all sides of a dispute.

I think you cannot handle a case without getting some level of understanding of the various interests and, to some extent personalities, of the individuals involved. It's not always possible to know everything going on with someone, but my approach is to understand the underlying factors as much as I can. I need to get a true picture of what the workplace is like, what it was like for that individual, what it was like for the coworkers who were in the environment and take a problem-solving approach to it. Particularly in California, where employees are entitled to recover attorneys' fees for even small victories, it is extremely expensive and unproductive to think of an employment dispute as a litigation problem.

What key legal advice would you offer to employers to minimize the risk of employment litigation?

Companies need to possess a thorough comprehension of the obligations that employers have, particularly in California, and to train their supervisors and managers accordingly. Employers need to ensure clear policies and procedures are in place so that employees know what is expected of them. Many cases I see arise because the employee did not understand that they were not meeting basic performance standards, and thus they feel blindsided at facing discipline or termination. Sometimes employers will think that they have communicated clearly when they have not.

Of course, I wouldn't be a good litigator if I didn't emphasize the importance of having very clear, contemporaneous documentation of any issues that are coming up with employees.

With increasing focus on diversity and inclusion, how do you see these factors influencing employment law and workplace policies?

Increased attention and commitment to diversity and inclusion issues, and understanding what it means to truly have an inclusive workplace, informs how we implement our policies and procedures. I think the biggest hurdle to having a diverse and inclusive workplace is stereotypes that are enforced in, or that are embedded into, traditional work practices. Training and awareness must start at the top with owners and managers. They can learn to identify their implicit biases, and how certain workplace rules can infringe on creating inclusive environments. In California, employers are required to provide training on prevention of harassment, discrimination and retaliation. To not utilize these trainings to teach more broadly about implicit bias and inclusive practices is, in my opinion, a missed opportunity.

Finally, can you share a particularly memorable case or project you've worked on that has significantly influenced your approach to employment law?

I had a very lengthy harassment trial when I was representing San Francisco, and it was a case where the plaintiff was alleging more than 10 years of ongoing daily harassing conduct. This case taught me the significance of having respectful communications, and how human factors take center stage in litigation in general. I would also say that this case gave me a better understanding of the importance of dealing with problems as they arise and not letting a situation simmer for a long period of time.

In California, the employment environment is very employee friendly. And sometimes I have employers come to me who are scared of an employee who is engaging in problematic behavior, and their fear has kept them from taking action. And by the time they get to me, they have a problem that has been festering in their workplace for sometimes years. Those are the employers I like to empower. I teach them how to take the reins of a situation like that and not let it infect the workplace.

My litigation practice informs how I approach my advice and counsel practice. When I am advising an employer about a particular employee situation, I'm thinking about it from the perspective of having to prove to a judge or jury that my client acted reasonably and lawfully. I think about the record that I want to be able to present to establish that the employer's decision was fair, and that the employee had notice and opportunities to address the issues.

I always say that I learned how to be a good legal writer by reading briefs that missed the mark when I was a judicial clerk. Similarly, I have learned about best employment practices by successfully defending lawsuits.