Employment lawyer Alan Crone appeared on The Employment Experience Podcast with Karly Wannos! As an employment lawyer herself, but on the defense side, Karly and Alan discuss how businesses can avoid becoming defendants. They tell stories of former clients that they have each helped get out of situations, and what it means for their clients. Click here to listen, and we have the full transcription of the interview below!
Top Things Plaintiff Employment Lawyers Don’t Want You to Know
In today’s episode, I am doing things a little bit differently. As you know, if you’ve been a long-time listener, this podcast is mostly geared towards businesses and their navigation of employment laws. We also address issues with employees, whether it be leadership, management, employee engagement, and running the day-to-day operations of the company.
As you know, I am a Florida employment lawyer, and today I’m speaking with another employment lawyer, but one who typically represents the employee and litigation and mostly upper-level executives.
My guest’s name is Alan Crone. He’s the founder of the Crone Law Firm in Tennessee. Today, he’s giving us the inside scoop on the top things plaintiff employment lawyers, so those who represent the employee, don’t want companies to know and the top reasons companies get sued by their executives. Before we bring Alan in, I wanted to ask you a quick favor.
Wherever you are listening, I would truly appreciate it if you could please go to Apple Podcasts, Spotify, or again, wherever you’re listening and rate and review the show. This helps me reach more businesses, HR professionals, CEOs, and professionals and help educate them on the employment laws as well as other issues surrounding the business.
And one more announcement. As you know, I am not only an employment lawyer, but a workplace investigator and a workplace trainer. I train executives, HR, and management teams on the employment laws and best practices on how to comply with the law and maintain a productive and effective workplace. I do this through my on-demand workshops and courses.
So, if you’re interested in receiving employment law updates or discounts on my courses in the future, please sign up for my email list at karlywannos.com/newsletter. Now, let’s bring Alan in. Alan, thank you so much for being here and welcome to the show.
Oh, it’s my pleasure. Thanks for having me.
Absolutely. I am so happy that you’re here. At first, I was intrigued that you agreed to speak with me. In your introduction, I let everybody know that you are an employment lawyer. A lot of the times you represent the plaintiffs. And I have a background in defense. I represent the employer.
So, a lot of times we’re on opposite sides, opposite party sides. And attorneys, what they do in litigation, it’s adversarial in nature. So, they’re on opposite sides. They’re fighting against each other. But a lot of times I think it’s really important for attorneys to remember we are here to represent our clients and to get the best result for them.
But it’s really important to remember that we are here to resolve a dispute and we are here to solve the client’s problem. So, in litigation, a lot of times I see the other side, the plaintiff’s attorney, doing something and I’m like, what are you doing? I don’t understand why you’re doing that.
I think it’s really important that we do come together. I’m happy that you agreed to speak with me and share some of your insight from the plaintiff’s side as to cases that you’ve seen in cases that you’ve dealt with.
Well, I’m happy to do it. I think one goal that we both share is we’d like to see a workplace without discrimination, without harassment or any of these things, and anything I can do to educate people to avoid a lawsuit or create a great working environment that ultimately benefits my clients as well as your clients.
Absolutely. I 100% agree with that. I see a lot of people sometimes with the misconception, and they say that HR is not your friend. HR is against you. They are not there to support you because they may have felt wronged by HR in the past.
But from what I have found in speaking with many HR professionals over the years is that it’s helpful to both sides, the business and the employee, to try to find a common ground and work through the issues.
While HR might not always be on the side of the employee or always be on the side of the employer, at the end of the day, nobody wants to end up in a lawsuit.
So, if at all possible to try to get these issues resolved ahead of time, make sure that everybody is complying with the law and doing what they’re supposed to be doing, I think more times than not, that ends up being the best case result for everybody involved.
Yeah. My theory on why that is so is that I think the operations, the business people often look at HR as this necessary extravagance or maybe a necessary evil. I speak to HR groups all the time and I say, One way you can sell your services internally is to tell people, legal compliance is important for its own sake, but it’s also good business.
It’s good business to hire the right people to treat them well, to not have turnover. If the operations of business people really valued more what the HR folks and their lawyers are trying to tell them, then I think it puts HR in a much more productive place.
In my community, I can name the organizations that have great HR and have great relationships with their employees because their employees never hire me. Then there’s the ones that have an adversarial relationship with their employees and they’re always having turmoil. I think HR compliance is good business.
Right. Absolutely. I think you hit the nail on the head there and I completely agree. What I talk about a lot, and we’re not necessarily going to get into it in this episode, is training, making sure everybody’s on the same page as far as what the law requires.
And also, tell me your thoughts on this. I do a lot of training for employees. And some people say, “well, why are you training the employees to know how to report claims of harassment and discrimination?”
And the answer is because if they know how to report claims of discrimination and harassment, then the company can actually do something with that to get it resolved.
The problem arises when the employees don’t know what to do or they’re keeping it to themselves, not telling everybody, not properly reporting it, that a lot of the issues arise. You need to have that open line of communication there.
I think that’s right. Again, every circumstance is going to be different. But I see a lot of companies, a lot of HR departments that once they discover that my complaint is not an illegal complaint. In other words, I come and I say, I’ve got run of the mill personality conflict or some office politics.
Once they determine, well, it’s not race discrimination, it’s not age discrimination, they treat it as lesser than. I think you need to have a culture within the company that really values people respecting one another, whether it’s for legal discrimination or just differences and training people how to get along with one another and how to properly confront one another goes a long way
Yes, you are absolutely right. I love that what you said. Even though it’s not illegal, if it’s a real problem, even a personality conflict, it’s going to fester if it’s not addressed and end up blowing up at the end of the day.
With that being said, I wanted to ask you a couple of questions and start off with what… I’m just curious, what are the most common types of cases that you are seeing recently? What are the most common things that are coming across your desk?
Well, we see a lot of overtime violations, which surprises me. I’ve been doing overtime cases since the ’90s, when we could settle the case a lot of times before the answer was even filed. I thought over the last… Really, I thought those cases would disappear over the last 10 or 20 years, but it’s hard to comply with the overtime laws.
We see a lot of overtime laws, violations. We’ve seen a fair number of cases that come out of the Me Too movement, a lot more women, particularly, looking at circumstances and saying, okay, is this sexual harassment?
I get between 3 and 400 calls a month. The vast majority of them are people who believe they’ve been fired unfairly. A lot of them have been fired unfairly, but not illegally. Retaliation for various things probably is the highest percentage of the cases we take involve some element of retaliation.
Right. On your first issue, overtime, the FLSA and the overtime laws can get pretty complex and tricky, and they’re so nuanced. A lot of times I have found that employers just don’t know, they don’t realize. They don’t know what documentation they need to be keeping or how they need to be keeping time records.
That’s another reason why it’s so important for employers to make sure that they do, in fact, know the law and they are doing the things that they need to do in order to not just protect themselves, but to make sure that their employees are being paid properly as well.
That’s right. I think right now, a big offense is misclassification of employees as independent contractors. As you know, it’s a big problem for an employer who chooses in directly because not only do they have potential overtime damages, but they may have Affordable Care Act problems and withholding.
There’s a host of federal and state agencies that can impact you if you make the wrong determination there. I personally think that most people walking around America right now with the moniker of independent contractor are not a properly independent contractor. They just aren’t. They’re not independent and they’re not contractors.
An area of confusion is that that can be contracted away. You have two consenting adults. One agrees to be an independent contractor. What’s the problem? We know that that’s not something that can be contracted away.
Again, they’re unknowingly doing it. All it takes is one disgruntled employee to get the Department of Labor involved, and then you’re potentially on the hook for all of your misclassified employees. That’s a really good one.
Before we started chatting, you were telling me about how job descriptions, not having a job description or not having a sufficient or detailed job description can create problems for employers. Tell me a little bit about your thoughts on that.
Yeah, I think this is a great place to talk about that. Obviously, it’s the work that you do that determines whether or not a particular worker or class of workers is exempt or not exempt from overtime. If you’ve got a position where on paper, maybe it’s an assistant manager position and on paper, they supervise two or more employees and they otherwise fit the exemption.
But in practice, they don’t do that. The job description we find out often is three, four, or five, six years old or more. Again, it was one of those things that somebody did because somebody told them they had to check it off the list.
Well, we got to get job descriptions for everybody. They end up assigning it to the lowest person on the totem pole. They go out and do it. Don’t spend a lot of time on it. Or get a farm online. Not done very well. It’s not done very well.
Once they get it, okay, we checked that off. Again, it’s terrible business. If you’re the vice president, you need to be able to look at that job description and be able to rely on it.
Often you start digging down and then and then you have these wage and hour issues or you have Americans with Disabilities Act issues because now you may be requiring an essential function of a job on paper that everybody in good faith believes that’s an essential function.
Maybe it’s lifting 50 pounds, but then you go talk to incumbents, well, we never lift 50 pounds. That was in there maybe because five years ago, we had a machine that required you every so often to lift 50 pounds. Now that machine has been modified and you don’t have to do that anymore. You really need to understand what’s going on.
Also, then you can hire to that job description. The amount of people who get hired for positions that they really aren’t suited for or qualified for because the hiring managers don’t really know what it takes to be successful in the position. If they’re going by a bad job description, then their roadmap is flawed.
Job descriptions are incredibly important. I think I would be impressed with any organization that had highly compensated people involved in creating job descriptions and reviewing job descriptions. It’s something that should be done very frequently, in my opinion.
It would hurt my firm’s revenue, I think, if all managers did was make sure their job descriptions were tight, I think it would solve a lot of problems.
Right. You’re absolutely right. I think the job description gets overlooked as it’s either a form or it’s not important because everybody knows what the job entails and you know how to do your job, so what’s the point?
But as you mentioned, it’s important for classification and misclassification issues, as well as the ADA, which is a huge federal statute that employers get sued under all the time, and determining what the essential functions of the position are.
So, there’s a lot that goes into it. It’s way underrated. I think like the employee handbook, I think a lot of it is the foundation to help give your employees direction of what they need to do, how they need to be successful, how they can improve in their job performance. Without that foundation, you could potentially run into a lot of problems.
Yes, absolutely. Again, it starts right there. How can you train someone to do a job well if the tool you’re using to be giving the training is antiquated or obsolete?
Right. The goal, I know we spoke about this before, is training. If they are not meeting standards or they’re not doing something correct and not just focusing so much on the discipline. As a defense attorney for the employer, of course, I preach document, document, document all the time because that’s very important to have documentation of the conversation, what actually happened, a lot of things get he said, she said, miscommunicated.
But you’re not trying to necessarily document just so you can terminate someone. You’re also trying to train them and help them to become a successful employee. Because if you’re only looking to terminate someone at the end of the day, now, of course, everything’s on a case-by-case basis.
Sometimes companies do need to terminate an employee. Sometimes it gets to that point. But if you’re solely looking to terminate the business, in my opinion, is not to be successful because you’re going to have high turnover rates.
With high turnover rates come high costs, low morale, and everything else that comes with that. What are your thoughts on that?
Well, I think if you listen to any of the business gurus that are on stages all across the country, they’re all going to tell you that culture is the most important thing for any organization, that it has a good, unified culture, which I think also means that the company needs to have a mission.
There are lots of businesses out there that have no sense of have no sense of culture of what is acceptable, what isn’t acceptable. You’ve got to get those basics down right. If everything is aimed at empowering your employees to be successful for the business
In 2023, it’s rare that you have emails that have racist statements in them or sexist statements or whatever. But I think two things happen. One, a lot of times employers just won’t say why they’re actually firing somebody.
They come up with a reason that sounds very plastic. I think juries that’s in Congress, they hear that and they say, That’s not the real reason. Well, then the only other reason they get maybe is the reason the plaintiff is proposing.
If it’s clear in your culture that what you want is someone to succeed, and we’re only going to terminate someone when it’s clear that they either refuse to get with the program or just aren’t able to get with the program, then I think when that’s clear, I think employees know when they have done something wrong if it’s clear to them all along.
I’ll give you an example. It’s an extreme example, but I think it illustrates the point. I had a client who came to see me. He had worked for a particular company for 33 years. He was the most senior person there. He was also 15-20 minutes late for 30 years.
New supervisor, my client was black, supervisor was white, comes in, basically says, “hey, look, I’ve noticed that the last two weeks you’ve been late every day. If you’re late one more time, we’re going to have to take serious action.” Next day, he was late, told you not to be late, fired him.
He comes to me and he says, it had to be because I’m black. I said, well, why is that? He said, well, I’ve been late for 30 years and it’s never been a problem. Now all of a sudden with this white supervisor, it’s a problem.
Two things here. One thing we found out there were other people who were late, it wasn’t just this one fellow. But two, he didn’t know how to confront this guy with the problem.
We can all get behind the fact that, well, yeah, it’s important to be on time, but tell them why it’s important to be on time. Look, it’s important we need you to do this. How can we make this happen?
Then give a little bit of a runway to correct the behavior. If you haven’t built that culture, the person immediately thinks, oh, it must be because of this the legal reason because this is coming out of left field.
I’ve had plenty of people who I say, in your heart of hearts, what’s the real reason they’re firing you? They say, yeah, the real reason they’re firing me is because I’m not a good fit.
That’s where I have to say, well, then it’s unfortunate, but you don’t have a claim because you yourself just said that it wasn’t a good fit. When you get most people, we’ve all run into the exception to this.
Most people want to do a good job. They want to meet your expectations. They don’t want to fail. There’re some gold brokers out there. But most people, you set expectations, if they can make it, they will.
If they can’t, they’ll be honest with themselves and say, okay, yeah, you got me. This wasn’t a good fit for me. I think all of that is really, really important. Being straight with people, being transparent. If you’re invested in their success professionally, then they’re going to be invested in the company’s success.
Right. Absolutely. What you mentioned about explaining why it’s important when someone arrives late, why it’s important for them to arrive on time, I was thinking some people might say, well, why should I have to explain to an adult why it’s important to arrive on time isn’t that self-explanatory?
But I think, and I talk about this on the podcast all the time why communication is so important. I think if you take this step further to explain, look, this is how your tardiness affects the company as a whole.
Get them involved in why what they are doing is important to the overall operation of the business and explain, I think that they are going to make a lot more effort to improve and do the right thing over time, as opposed to just saying, look, you violated the rule. Don’t do that. Slap on the hand.
I also did an entire podcast on whether or not to give a reason when terminating an employee and the pros and cons in doing so. Again, a lot of people say, Well, I’m in an at will, employment state. I don’t have to give a reason. I went through and discussed the problems that could arise from that.
Like you said, if you’re not given a reason, I’m going to assume it’s for an improper reason, and I’m going to go with that, which we know where that ends up, and it’s not in a great spot.
That’s right. Again, I think given a real reason in terms of not just accurate, but a reason that the person can identify with. I think that’s so important. The transparency, one of the value pillars we have as a firm is transparency. If you’re transparent in your conversations, then it shouldn’t be a surprise when you have to let someone go.
That’s the great thing about an employment at will situation is it doesn’t have to be a great reason. It doesn’t even have to be a fair reason. But I think if you tell somebody, Yeah, I’m… As a defense lawyer, you might disagree with me on this.
But I’ve often thought it would be much better to say, Yeah, I want to make a change because I want to bring in this person that work with me at my previous job, and I need to make room for them. We’ve been working together for 20 years, and nothing against you, but I want to bring them in.
That’s a perfect defense. It happens all the time in business. If you’re on the receiving end of that, it ain’t great. I mean, no one wants to be fired for that reason.
But at least then if you give another reason that’s phony, that again may be a great defense, they can see through that and they know what’s really going on and that prompts them to come see me.
Even though they may not have that person may not have a wrongful termination claim, they might have an FLSA claim. The fact that they’re in my office…
You’re going to find it.
I’m going to find it. That’s where I’d say 95% of my wage in hour cases come from are people who come to see me for wrongful termination and we and our intake people end up finding out that they have a wage in hour violation or potential wage in hour.
That’s a really good point that you raise, and that brings me into my next question on what are your thoughts on providing severance agreements to employees who are recently terminated?
From the employer standpoint, they’re beneficial because they get to give a set payment and the employee is going to release them of liability and sign a settlement agreement, severance agreement and release.
But a lot of times what I have found is depending upon the complexity of the severance agreement, what does the employee do next? They take the severance agreement to a plaintiff’s attorney like yourself.
And like you said, there might not be issue A, but there might be an FLA violation or FMLA violation that they didn’t know about. So, what are your thoughts? Is it helpful or harmful, do you think, from the, I guess, employer standpoint?
Yeah, I think it’s hard to say because there isn’t one size fits all here or even… It’s hard to play the percentages. Now, from my perspective, I think if you’ve got a… Let’s say you’ve got a pretty sizable reduction in force, where there may be more than a dozen people or maybe even dozens of people affected by it.
To me, I think the smart play there from an employer’s perspective, is to figure out what we’re going to pay everybody, make sure it’s the same across the board, and then not negotiate. Say, look, if you want it, this is the deal, and clear out all the non-litigious people.
Then if you’ve got one or two situations you have to deal with, then make them turn it down and see if they’ll file an EEOC complaint, that thing. I think their leading with the severance agreement is really key. I’m not on your side, so I don’t know how often this works. If it’s an outlier that they’re going to do what you say, then go ahead and offer somebody.
Obviously, don’t try to save money either. Figure out what’s the most you can hang out there, maybe pay a little bit more just to get that certainty because it’s hard to walk away from real money.
It’s easy to walk away from two weeks. It’s easy to walk away from three or four weeks sometimes, depending upon who the person is. But you’ve put some serious money out there, you get the release, you move on. I think that’s a smart thing.
You just got to… particularly if they’re over 40. I mean, they’re over 40, you’re telling them in the contract we’ll go see a lawyer. I think if you’re tight, if your organization is tight and it’s someone you know doesn’t have a wage an hour claim and someone you know doesn’t have a claim, then I think the toughest thing then is, well, if you get a lawyer that comes and says, well, how about a little bit more?
Are you going to be that company that negotiates those single event cases? Or are you again going to say, no, this is as good as it gets? I think that’s more of a negotiating style.
Some people like to have some room. Other people just say, no, that’s what you get. But I think probably 95% of the time, they’re going to go ahead and sign it particularly if there’s not an extreme situation.
By that, I think if somebody has complained about something illegal, it has a potential whistleblower or retaliation claim, then you probably do want to…
You may want to hit that head-on and say, I know you’ve got this issue. What can we do to resolve this? Because those are the ones that are going to, I think, going to have the most problems going down, going down the road is where I’ve just complained about race discrimination. Now you’re firing me.
You’re offering me four weeks of severance, which is what you offer everybody, but I don’t want to leave a potential retaliation case on the table that’s going to get you a return phone call. I don’t know if that really answers your question or not, but to me, I’ve represented some right-thinking employers in my day, and by right thinking, I mean they’ve hired me.
And that’s always a conversation, right? Is how do you offer that without making the other party think that you’ve got something to hide? And I’ve had clients say that to me while they’re offering me this. They must know I have a great case, otherwise they wouldn’t be offering this to me. And that’s hard to say.
No, they’re doing it because they just want to tie this up in a bow, and that’s worth something, but it’s not worth what you think it’s worth right now.
Right. And so, we’re almost at the end of our session, but I do have a couple more questions for you, and I don’t want to put you on the spot, so if you need a minute to think about it, totally fine.
What, in your perspective, is the number one thing that employers do that will get them sued? Ten out of ten times? So, in other words, when you have a plaintiff, a client that comes into your office and you see that they’ve done this, it’s like, hands down, this is most likely going to end at a lawsuit.
Well ended a successful lawsuit or just a lawsuit? Because there’s a difference.
Let’s start with a lawsuit. Well, actually, let’s start with a successful lawsuit. Let’s start with that one.
All right. People will say to me often, they’ll tell me why they got fired. And I sometimes will say, yeah, that’ll get you fired. So, here’s something that will get you sued. Fighting unemployment claims.
Fighting unemployment claims, I think, cause more lawsuits than anything else, because think about it, from the employees’ standpoint, they’ve just had an existential crisis. They’ve been fired. They don’t know what the future holds. They don’t.
In America, most of us live paycheck to paycheck, particularly working people. They are in a panic mode. And you tell them that you’re not going to let them collect unemployment. Now, you and I both know that it’s not really up to them. It’s up to the state or whatever.
But I tell my clients, look, I used to be the chief legal counsel for the Department of Employment Security in Tennessee. I know how that program works. And paying out claims every now and then not going to affect anybody’s.
Bottom line, let them collect unemployment. Many people say at some point during the initial consultation with me, will say, well, I had to come because they’re contesting my unemployment, and I just don’t know what I’m going to do, right.
They didn’t have any other option. You’re backing them into a corner at that point.
Yeah. So that’s not the number one. And then I think the second thing that will get you sued and that will result in a big settlement or even a verdict is being disingenuous with giving the reason why they were being fired or not giving them a reason.
We’ve talked about this a little bit, but you put some euphemism out there or you shade it a little bit and it’s not the truth. And I’m not saying somebody’s lying, I’m just thinking I’m just saying it’s not the real reason. You’re going to leave your defense lawyer with nowhere to go when I show that that’s BS.
So, I think that’s the biggest mistake people make right behind contesting unemployment benefits is not being straight with the employee on why they’re being fired. And that may also include not giving a reason at all.
As you say, there’s no legal requirement that they do so. But people want to know why motive isn’t an element in a criminal case, but juries always want, why did you do it? Our motivation means a lot. So those are the two, right?
So you completely hit the nail on the head there and I completely agree with you. Contesting unemployment, I have seen that so many times happen over and over again. So that was a really great one that you came up with.
And then, of course, we’ve touched on giving the real reason and not will employment. If you give a fake reason, the plaintiff’s attorney is going to find the real reason, right?
If you say, I’ve had some businesses who say, look, we’re making budget cuts, we’re eliminating your position, come to find out that two weeks later, they have now hired somebody else to fill the position or they were interviewing for the position while the person was still working there.
So, you do have to be honest, you do have to be straightforward. Yes. From the employer’s perspective, you do have a business to run and you can’t completely open your books to everybody and show everybody everything internally.
But honesty, communication, I think, go a really long way here. So, Alan, unfortunately, we are at the end of our session today. It has been a pleasure speaking with you and I really appreciate you sharing the insights with us to all the listeners.
If you enjoyed this episode, please leave me a review and rate the show. As you know, it helps me reach more businesses which will, in turn help them run more efficiently and effectively and have a better overall work environment with their employees.
So, thanks again, Alan, and we will see you in the next episode.