2015 Annual Convention. Ways to Avoid the Seven Mistakes Every Plaintiff s Attorney Hopes Employers Make

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1 2015 Annual Convention Ways to Avoid the Seven Mistakes Every Plaintiff s Attorney Hopes Employers Make Labor and Employment Law Committee 1.5 General CLE Hours April 29 May 1, 2015 Sandusky

2 Speaker Biographies Daniel P. Petrov Thorman, Petrov Griffin Co., LPA Cleveland, Ohio Mr. Petrov received his BA from Columbia College and his JD from Case Western Reserve University School of Law. He is a shareholder of his firm, representing individuals in need in whistleblower, class-action, employment and civil rights disputes before federal and state courts throughout the United States. Mr. Petrov has successfully resolved claims of wrongful discharge, discrimination and retaliation under nearly every federal and state equal employment opportunity law. He focuses a large portion of his practice representing whistleblowers who report fraud against the government in arenas including health care, defense contracting and immigration fraud. For additional information, please visit Mechelle Zarou Shumaker, Loop & Kendrick, LLP Toledo, Ohio Ms. Zarou received her BA from the University of Michigan, her MA from Duke University, and her JD from Duke University School of Law. Her professional memberships include the Toledo Bar Association (Board of Directors; Co-Chair, Long Range Planning Committee), Toledo Women s Bar Association, Ohio State Bar Association, American Bar Association, Junior Bar Association (Executive Committee), and the American Immigration Lawyers Association. Ms. Zarou is a partner of her firm and serves as its Immigration Practice Co- Administrator. Her practice encompasses all areas of labor and employment law, including wrongful discharge, discrimination, workers compensation, unemployment compensation, business immigration, labor negotiations and arbitrations, and unfair labor practice charges. She was the 2010 recipient of the Ohio State Bar Foundation s Community Service Award for Attorneys 40 and Under. For additional information, please visit

3 Avoiding the Seven Mistakes a Plaintiff s Lawyer Hopes Your Client Makes Daniel P. Petrov Thorman Petrov Griffin Co., LPA Cleveland, Ohio Mechelle Zarou Shumaker Loop & Kendrick, LLP Toledo, Ohio Table of Contents Seven Mistakes and/or Risk Areas of Employment Law... 1 Hypothetical No What would you want to know as the Company s legal counsel?... 2 How do you advise HR to proceed?... 2 Hypothetical No If you represent the Company, what do you do? What would you want to know?... 3 If you represent Jane, what would you want to know? What information would matter most to you?... 3 Hypothetical No If you represent the Company, what concerns do you have?... 4 If you represent Mary, what opportunities do you see?... 4 Avoiding the Seven Mistakes i

4 ii Ways to Avoid the Seven Mistakes

5 Avoiding the Seven Mistakes a Plaintiff s Lawyer Hopes Your Client Makes Daniel P. Petrov Thorman Petrov Griffin Co., LPA Cleveland, Ohio Mechelle Zarou Shumaker Loop & Kendrick, LLP Toledo, Ohio This presentation is a response to the Breakout Session presented by Stacy Hinners and Matt Besser on April 30, Ms. Hinners and Mr. Besser presented a program about The Seven Mistakes a Plaintiff s Lawyer Hopes Your Client Makes yesterday. The materials related to their presentation can be found with the materials distributed for yesterday s Breakout Sessions. Today, we hope to discuss those Seven Mistakes again, with an eye towards discussing strategies to avoid those mistakes. We will provide discussion points arising from the perspectives of both the plaintiff and the defendant. After that discussion, we will present hypothetical employment scenarios in an open discussion about these issues and strategies. Seven Mistakes and/or Risk Areas of Employment Law 1. Failing to train supervisors to identify issues. 2. Ignoring policies and apply policy inconsistently. 3. Failing to honestly and clearly document issues. 4. Putting dumb things in writing or destroying evidence. 5. Ignoring wage and hour violations. 6. Fumbling ball on disabilities. 7. Retaliating. Avoiding the Seven Mistakes 1

6 Hypothetical No. 1 Roz is a long time employee of Company. She was the Executive Assistant for the Company s prior owner and was promoted into the accounting and credit department. She received regular, excellent performance evaluations from the Company over the years, including during the period she worked as the Company s Credit Manager. New owners have come in and implemented new financial tracking measures. They discovery hundreds of thousands of dollars in uncollected debt owed to the Company. If you represent the Company, what should you do? What would you want to know as the Company s legal counsel? During the course of your investigation, Roz informs Human Resources that she recently had a doctor s appointment and asks to schedule a meeting to discuss some issues related to her doctor s appointment with HR. How do you advise HR to proceed? 2 Ways to Avoid the Seven Mistakes

7 Hypothetical No. 2 Jane is a 25-year employee of Layoff Corp. Layoff Corp. is proposing surprise, surprise layoffs for 3Q The managers responsible for selecting employees for layoffs have included Jane in the list of employees to be terminated in the layoff. Jane has not had a bad evaluation in her 25 years of work. She received a raise just one month before the proposal to terminate her employment. (This hypothetical is purposefully limited in its facts, so as to demonstrate how greatly unknown information can change legal risk and outcomes). If you represent the Company, what do you do? What would you want to know? If you represent Jane, what would you want to know? What information would matter most to you? Avoiding the Seven Mistakes 3

8 Hypothetical No. 3 Mary is a 53-year-old employee who has been with the Company for 23 years. She has worked with the Company s COO as an Administrator for 16 years. In January, her supervisor, the COO, asked her to complete some edits on a spreadsheet that included salaries for large numbers of employees, and which Mary believes shows that many men are paid more money than many women are paid at the Company. Mary sends an to her boss, the COO, asking whether the salaries are right, because there appears to be a disparity that she couldn t explain. The COO informs HR one week later that he has decided to let Mary go and replaced Mary with her subordinate, a 32 year old male, who is the Assistant Administrator. The COO explains that he does not need both an Administrator and an Assistant Administrator. Mary sues the Company for age and sex discrimination. The COO informs the Company s lawyers that he selected Mary for layoff because her performance was poor and she lacks essential skills. If you represent the Company, what concerns do you have? If you represent Mary, what opportunities do you see? 4 Ways to Avoid the Seven Mistakes

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