Lawyer Monthly - Legal Awards 2023

92 Lawyer Monthly Legal Awards 2023 USA 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. “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.”

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