Monday, June 15, 2009

Why I Won't Take Your Case

"Because you're an idiot," is probably a completely unacceptable reason for refusing to accept representation of a prospective client (even if it is the real reason.) For more than a decade of solo practice, and nearly thirty years of private practice altogether, I have noticed a few patterns, however, that I believe might just be worth sharing, especially for anyone in the human resources or employment law industry.

Here are the principal reasons I find people find themselves unemployed, regardless of the state of the economy.

1. Absenteeism: I wish I had a dollar for every prospective client who missed three or four days during their first weeks of employment, or during their probationary period, who protested, "but I had a doctor's note!" Doctors notes are for school, not the real world. As Woody Allen said, "80% of success is showing up." The only exception is where an employee has been working somewhere for more than a year, for more than 1250 hours in the year before, where the employer has more than fifty employees within a 75 mile radius, and where the 'absence' is attributable to a 'serious health condition' of the employee or an immediate family member, or due to childbirth or adoption. That is to say, if you don't qualify for FMLA, you better show up or you better get ready to file for unemployment.

2. Arguments with supervisors: We can include in this category "but he was wrong and I was right," or "I told them so," or any of a dozen other expressions of exasperation with mediocre management one level up from the fired prospective employee. It is said "if you shoot at the King, you better not miss." Too many people think that workplaces are staffed by referees in striped shirts that will throw a flag and assess a ten yard penalty when a supervisor does something that is unfair. Unfair? Unfair?? Are you kidding me? Who said life was fair?

I used to work for a lawyer who would tell clients, "You find me a book that says life is fair and I'll buy you two copies." No, I didn't understand what he meant either, but the bottom line is that lawyers cannot address situations that are unFAIR, only UNLAWFUL. A similar situation applies to where employees in highly stratified organizational structures go 'out of bounds' to tattle on supervisors. Going out of bounds is a good way to get a head start to the unemployment line.

3. Arguments with coworkers: These usually start with things like "but she started it...." I don't know why people don't remember those moments in elementary school when they stood up in the back of the class to report misbehaving Johnny only to find that they were the ones staying after class to clean the blackboards while Johnny was out at recess. This is a corollary of 'life is not fair," of course, but the bottom line is that where two coworkers argue, fight, or even (and I've seen this too) 'take it outside,' somebody is going to get fired. Ideally, both employees.

4. Discrimination: The law does not bar discrimination. You discriminate every day when you choose what clothes you are going to wear. You discriminate every day when you decide what to eat for breakfast. If you go into a Baskin & Robbins and buy a single scoop, you've just discriminated against dozens of other flavors. If you get two scoops, you're still discriminating. What is unlawful is discrimination based upon protected classifications: age (over 40); sex; race; national origin; disability (record, perceived or actual); and in some jurisdictions family status and gender affinity. But if the boss likes that guy down the hall whom you can't stand better than you then it's tough noogies, and you need to read Dale Carnegie or figure some other way out to deal with the situation. Yeah, it's discrimination, but it's not unlawful.

Don't get me wrong; there are legitimate whistleblowers, there is unlawful discrimination, there is retaliation on an ongoing basis, and there are employers who practice unenlightened human resources management (thankfully, or I wouldn't have any clients) . But there are a few folks out there, not too many thankfully, who simply don't get it. The lights are on but nobody's home. For them we can only hope for enlightenment before they try to hire me.


  1. Speaking as a plaintiff lawyer in Texas, I agree completely with everything here. There is still no substitute for hard work and working hard to get along with others.

  2. If people haven't learned the core (perhaps only) lessons of primary education (life isn't fair, play well with others, respect authority), they are going to flounder when placed in the situations that socialization was preparing them for (working for the man).

  3. Horrible morals... oh well, life isn't fair right? That means you have to be dirtier.