• Rough Justice
  Workers Are Suing Their Employers in Growing Numbers, But May Have Cause To Regret It

• Train-Crash Victim's Family Seeks End to Damages Cap

• Attorney Richard Bridgford was a guest on the John and Ken Show (KFI AM 640/Los Angeles)

Rough Justice Workers are Suing Their Employers in Growing Numbers, But Many Have Cause to Regret It.
By BRIAN MOORE
Richard Bridgford commented on employee lawsuits in a November 3, 2008 cover story in the NY
Post.

November 3, 2008-- To complain to HR about a sex-crazed supervisor is human. To sue the company that won't do a thing about Boss Perv is divine.

Or so many employees think. But while legal action taken by workers against current and former employers is a fertile field for attorneys, it's rarely a primrose path for plaintiffs, experts say.

What seemed like a good idea at the time - sue the bastards! - often becomes an endless nightmare of unexpected personal and professional problems, which can include retribution from an employer, giant legal bills, professional black-balling and a D-Day-like invasion of privacy. And that's true whether a case is a legal gold mine driven by godly righteousness or a meritless action generated by spite.

"When you make the decision to sue, you feel so strongly that you're right and that I deserve this money," says Phyllis, whose husband is mired in a lawsuit with a former employer over unpaid commissions. "You feel like it's a slam dunk."

But given all the couple has gone through, including 60 grand in legal fees and some marital woes, she's not sure she'd do it again - even though she's convinced her husband was in the right.

"I just don't think it's worth the stress," she says.

Such worries aren't putting much of a dent in the number of employee lawsuits. Last year, almost 83,000 discrimination claims were filed with the US Equal Employment Opportunity Commission (EEOC). It's the largest one-year jump since 1993 - a period during which overall claims have more than doubled.

Suits alleging religious discrimination, "family responsibilities" discrimination (aimed at those whose familial duties may interfere with work) and underpayment of wages are among those that have seen a spike. And in the slumping economy, employment lawyers say they expect to see a sharp increase in employee-generated suits.

But a large number of those plaintiffs are likely to reach the same verdict as Phyllis, says Ronald Shechtman, managing partner at Pryor Cashman LLP in Manhattan.

"Many employees read stories and hear tales, and they have a vision of a great pay day and an employer capitulating," he says. But "they often get what they don't expect."

For starters, among the things they'll likely get is a vigorous defense, because large employers want to send a message to other workers, while smaller firms fight back out of "a sense of outrage," says Shechtman.

Mara Levin, a partner at Herrick, Feinstein LLP in Manhattan who represents employers, says one of her firm's clients spent a small fortune defending a racial discrimination lawsuit it could have settled for a fraction of that. An employee - "a really good Catholic girl," says Levin - accidentally walked in on a male and female employee who were together in an empty office. She said the two were examining each other's briefs; the couple said the man was consoling the woman.

When the firm fired the alleged lovebirds, the couple filed suit, contending they were canned because the male employee was black. The firm shelled out $250,000 in legal costs - and prevailed.

The message sent? "If you're going to have sex on the premises, you will be fired," says Levin.

The merits of a plaintiff's suit notwithstanding, there are plenty of perfectly legal ways a defendant can fight back. Sexual harassment suits are notorious for hardball tactics, according to Paul Lopez, a partner at the Florida firm Tripp Scott, who says employees filing such suits are "potentially opening a Pandora's box on their personal life" and notes that any "skeletons in the closet" or suggestions of past "kinkiness" can be brought into play.

"You say you were offended by this sort of conduct in the workplace. Let's see how offended you were by this thing in the past," he says, describing defendants' tactics. "It's not a fun process."

Less salacious actions can likewise bring on unwanted scrutiny. Which means that before filing suit, plaintiffs had better be sure there's no monkey business on their company computer, warns Ken Springer, president of the investigating and consulting firm Corporate Resolutions. And that's true whether it's private e-mail, pornography or evidence that the worker has been downloading proprietary information with a thumb drive or running a side business on company time.

If a plaintiff fudged a resume or a job application, that can come back to haunt him as well.

"If they've lied on a resume, what makes you think they didn't lie on this action?" asks Springer.

The scarlet letter

Employers can take aim at employees who sue in ways other than digging through their dirty laundry - one being on-the-job retaliation for those who still work for the company they're suing. Although the law forbids it, there's a chance that a company will take a swing anyway, with actions including firing or demoting the employee, denying bonuses and various forms of ostracism.

Retaliation claims more than doubled between 1992 and 2007, according to the EEOC. And while it's more common at smaller firms, vengeance can rear its ugly head at larger firms as well, notes Justin M. Swartz, a partner at Outten & Golden LLP.

"Even the bigger, more sophisticated companies can't always control their low-level management," he says.

Even if the plaintiff has quit, filing suit can create a "T for troublemaker" reputation that can make it difficult for him or her to find work at other firms in the same industry.

"If they're intending to stay in the industry, they have to be worried about an unspoken alliance. They're going to be blackballed," says Lopez. "You better be damn sure of your standing in the industry."

A former HR exec agrees.

"When a reference check is done and a lawsuit surfaces, they're going to find a reason to knock the person out of the box," says Barbara Poole, who now runs employaid.com, an online resource site for corporate employees.

Poole advises plaintiffs who are looking for a new job to be up-front with potential employers about their legal actions. It's better to put a positive spin on the matter - "I want to work here because my research shows that this company treats employees with respect and pays them accordingly" - than to have HR discover it independently.

A FULL-TIME JOB

And by the way, if a plaintiff has left the job, he or she will be looking for another, not lying on the couch sipping adult beverages while his lawyer puts together an instant retirement package. The law requires it, on the grounds that since economic loss is a factor in a suit, workers "have a duty to mitigate their losses," says Manhattan attorney Mark Risk, who represents employees.

Even if a plaintiff weren't required to hit the pavement, taking legal action isn't a passive process. Plaintiffs generally have to bust some butt to provide evidence backing up their claims.

"Typically, the case never looks better than when an intelligent client presents his case in your office," says Orange County, Calif., attorney Richard Bridgford of Bridgford & Gleason. "Thereafter, it's a series of hurdles."

Those hurdles can include helping to piece together whatever documentary evidence there is, testifying at grueling depositions where opposing counsel tries to rip open a few new ones, and putting up with a flurry of motions, delays and other legal tactics that can drag a case out for years.

And even if a plaintiff finds an attorney willing to work on a contingency basis, he's still often responsible for certain legal expenses that can run into thousands of dollars, such as paying for a court reporter during a deposition.

All these obstacles aside though, there's never a shortage of people willing to take their work issues to court, which means employment lawyers' caseloads are unlikely to decline any time soon. Phyllis, the woman who's had second thoughts about her husband's ongoing legal dispute, says she recently talked to a friend who'd been fired from a job despite a signed contract. Phyllis counseled patience, but she's not sure if the advice registered.

"I hear it in her voice - that 'I'm right and they're wrong,' " she says. "They go in with rose-colored glasses. It's just not that cut and dried."

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Train-Crash Victim's Family Seeks End to Damages Cap (Update1) 2008-10-03 21:54:27.50 GMT
By Angela Greiling Keane Oct. 3 (Bloomberg) --

The daughter of a man killed in a 2002 head-on collision involving the Los Angeles Metrolink commuter train asked Congress to lift a cap on damages to speed the use of emergency braking technology.

Kelly Kube Beam, 28, whose father Robert Kube was killed in the April 23, 2002 crash, and the lawyer who represented her family after the accident, said railroads in the U.S. won't quickly install the technology unless a $200 million limit on damages for passenger rail accidents is eliminated.

``My dad might still be here'' if the train he was riding had so-called positive train control technology, Beam, of Moreno Valley, California, said today in an interview.

Kube, 59, was killed when a Burlington Northern Santa Fe Corp. freight train crew missed signals telling them to stop and collided with the Metrolink train he was riding.

That accident, in which one other person died and more than 200 were injured, happened six years before last month's Metrolink crash that killed 25 people after a Metrolink engineer, sending a text message on his mobile phone before the collision, failed to stop at a signal.

Lawyer Richard Bridgford, who represented Beam, her mother and sister in a wrongful death case following the crash, said that with the cap on damages for passenger rail accidents, U.S. railroads lack a financial incentive to install positive train control systems.

Cost Estimate:
Installing such technology on major routes, as required in a bill President George W. Bush may sign, would cost as much as $5 billion, Macquarie Bank Ltd. analyst Arturo Vernon said in a report this week. The measure, which the U.S. Senate approved two days ago, following the House, would require railroads in the U.S. to install the braking technology on major routes by 2015.

Representative John Mica of Florida, the top Republican on the House transportation committee, yesterday said the Bush administration had told him the president will sign the bill.

The National Transportation Safety Board, which investigates the causes of transportation accidents, called for installing positive train control systems after the 2002 Metrolink crash. Federal Railroad Administrator Joseph Boardman said last month that the technology would have prevented the Sept. 12 crash in which a Metrolink train collided head-on with a Union Pacific Corp. freight train.

Unlike in the 2002 accident when the Metrolink train stopped before the crash and the freight train slowed, both trains last month were driving at normal speeds when they collided.

Attorney's View:
The limit on damages ``has allowed the railroad executives to engage in a calculated cost-benefit analysis in which they weigh life on one hand against profit on the other hand,'' Bridgford said in a joint interview with Beam.

Patti Reilly, a spokeswoman for the Association of American Railroads in Washington, didn't immediately respond to an e-mail seeking comment.

Senator Barbara Boxer, a California Democrat, last week called for Congress to examine the damages cap. Beam said she wrote to Boxer and other elected officials following the 2002 crash to call for rail safety improvements and would push for a congressional effort to eliminate the damages cap now.

The Congressional Research Service, in a Sept. 22 report, said the cap, which was established in a 1997 law restructuring the national U.S. passenger railroad Amtrak, said it would likely apply to lawsuits resulting from Metrolink's latest accident.

``It appears likely that damages awarded in many of the potential claims will count against the liability cap,'' the research service, which writes reports at Congress's request, said.

Rail passengers can't afford to wait until 2015, as required under the pending legislation, to have positive train control on busy train routes, Bridgford said.

``Given the oil shortages and the increased use of mass transit in California, given human error, you will see other catastrophes that could have been prevented by automatic train stop, positive train control,'' he said.

For Related News:
Stories about the Metrolink accident: NSE METROLINK ACCIDENT --Editors: Charles W. Stevens, John Lear. To contact the reporter on this story: Angela Greiling Keane in Washington at +1-202-654-1287 or agreilingkea@bloomberg.net To contact the editor responsible for this story: Ed Dufner at +1-214-954-9453 or edufner@bloomberg.net

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Attorney Richard Bridgford was a guest on the John and Ken Show (KFI AM 640/Los Angeles) to discuss the technology that could have been used to prevent the Chatsworth Metrolink crash on September 19, 2008. Bridgford represented the family of Robert Kube, one of the passengers who died in the 2002 Metrolink train crash in Placentia and recovered the largest wrongful death award. http://www.johnandkenshow.com/archives/2008/09/22/

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