Washington Labor Law Blog: Insights on the Law for Washington Employers

Make it easy for the judge to rule in your favor

One of the judge’s hardest jobs at a trial is to decide what happened because each side usually has a different view of events. To win, you want to do things that make it easy for the judge to rule in your favor. One technique frequently used by lawyers, because we know a judge may later be deciding what happened, is using a confirming letter or email.

Assume you are at an unemployment hearing after an employee quits over the phone. The employee testifies that he was laid off, maybe because after he quit he learned the impact it had on eligibility for benefits. The HR Manager testifies that he quit. If we had a celestial video recorder, we could see the employee did quit. But both witnesses are credible and there is no other evidence of what happened.

It is difficult for the judge to rule in your favor in this situation. The scales of justice are equally balanced. But there is public policy that favors awarding benefits to the unemployed which acts as a gentle breeze blowing down on the employee’s side of the scale.

Now, what if you have a letter to offer into evidence that was sent certified mail return receipt requested right after the phone call. (Or an email – hopefully sent with a delivery receipt so you have proof of receipt) The letter, or email, says:

Dear Employee,

This confirms our telephone conversation this afternoon. You informed me that you were quitting effective immediately. We will process the necessary paperwork and mail your final check.

We wish you well.

Sincerely,

HR Manager

The employee never responded to your letter. (They rarely do!)

Now, you have tilted the balance of the evidence way over to your side. By not responding to your letter, the employee essentially admitted that he quit. With this simple step, you have made it easy for the judge to rule in your favor.

Long hours, changing conditions, and availability to handle issues are essential functions of a Les Schwab assistant manager.

Peter Atkinson was a long-term Les Schwab employee with a history of chronic migraine headaches. After being promoted to a position of assistant manager, which required a more demanding schedule, he began to miss work, take time off to sit in the break room, and leave before his shift was over because of migraine symptoms.… Continue Reading

How can I fire a pregnant employee without getting sued?

You can’t.   OK, that’s an overstatement; there are times it might make sense, but it is always a high-risk move. What is the most important factor in whether an ex-employee files a lawsuit against an employer? Anger? Feeling unfairly treated? Need for money? Those are all way up there. But I think the top reason… Continue Reading

Get the employee’s side of the story in his or her own words

An employee’s version of events resulting in discharge often change significantly over time. One cause of this change is likely because the employee’s interests change. When an employer is addressing performance or conduct issues before discharge, the employee’s primary interest is usually working with the employer to remain employed. When an employee files a lawsuit… Continue Reading

Avoid the use of a “Probation Period”

In my last post, I talked about firing employees during their first 90-days. There is a danger employers need to be aware of when referring to this initial period as a “probation” period. One way employers alter the “at-will” employment relationship is by an express or implied promise, often in a handbook, not to fire… Continue Reading

NLRB guidance on acceptable Social Media policies

National Labor Relations Board Acting General Counsel Lafe Salomon today issued a third report on social medial cases brought before the NRLB. The report details seven cases that came before the Board and identifies which policies the Board found unlawfully overbroad and which lawful. The NLRB rules apply to both union and non-union employers. Whether… Continue Reading

Still time to cComment on Seattle’s Paid Sick/Safe Leave Rules

The proposed administrative rules for Seattle’s new Sick/Safe Leave Ordinance are posted here. The period for public comment ends April 30th. If you missed the public meetings, you can still comment via e-mail to rulecomment@seattle.gov or by mail to: Seattle Office for Civil Rights 810 Third Ave., Suite 750 Seattle, WA  98104-1627 Attn:  Paid Sick/Safe… Continue Reading


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