Pooh Corner and a Zen Approach to Employment Law
March 26, 2015
By: Howard M. MillerIn prior blog articles, we’ve visited the battle field with Sun Tzu to learn the art of defending employment litigation, Santa’s Workshop for a holiday reminder that we can be sued for just about anything, and the major league baseball diamond with A-Rod for a lesson in swinging for the fences with the faithless servant doctrine. Our next stop on the Employment Law Express is to confer with one of the foremost Zen-masters on a more peaceful approach to our day-to-day employment matters. That master is none other than the venerable Winnie the Pooh. Often thought of only as a cuddly focal point in children’s fiction, Pooh Corner offers a host of spiritual wisdom that has broad applications as to how we can best manage our day-to-day strife in the world of human resources. So let’s take a careful look at some of the more astute Pooh-isms and what they tell us about how best to minimize the agita in our work. "It's more fun to talk with someone who doesn't use long difficult words but rather short easy words like, 'What about lunch?'" Indeed, though apparently Winnie the Pooh has never had lunch with a lawyer. Not using (I thought about using the word “Eschewing”) long difficult words is not only wise but an absolute necessity in the world of employment law. Take, for example, company handbooks and policies. Their whole purpose is to provide clear notice to employees of the rules governing their employment. The use of “long difficult words” defeats this purpose. Ambiguity and uncertainty breed escape hatches for employees which, in turn, disrupt the tranquility of human resources operations. The use of “long difficult words” also becomes a serious problem when trying to enforce a non-compete agreement. Some courts will hold that ambiguous non-compete clauses are either not enforceable at all or require a full-blown trial to enforce them. Consequently, it is “more fun” to enforce a non-compete clause that is worded using short easy words that make the employee’s obligations crystal clear. This holds true with any type of employment, separation or severance agreement -- they should contain short, easy language that even a bear who forgets to wear pants can understand. "People say nothing is impossible, but I do nothing every day!" While most of our employees are dedicated and hard-working, there are always a few exceptions who put a great deal of effort into doing nothing. Think George Costanza. The problems with these type of employees are many and include lost productivity and loss of morale among other employees who do not have the luxury of doing nothing all day. So we need to make doing nothing all day impossible. The caveat here is that nothing-doers tend to sue for discrimination when their reign of nothingness is put to an end. To avoid such claims, or make them easily dismissible, ironically requires hard work on our part. This means well-written (short easy words) counseling and disciplinary memos documenting the lack of performance and failure to follow specific directives. This played out in the interesting case of Sanzo v. Uniondale Union Free School District. The plaintiff school custodian sued his former employer claiming that he was unlawfully terminated on the basis of his disability, narcolepsy, which caused him to occasionally fall asleep on the job. The well-documented personnel file, however, demonstrated that discrimination was not at all at play. The plaintiff was not fired because he fell asleep, but rather he was fired because he declined to do his job when he was awake. In the end, what Pooh is telling us is that some people will find it possible to do nothing at least until such time as someone with supervisory authority affirmatively makes it impossible. "You can't stay in your corner of the forest, waiting for others to come to you; you have to go to them sometimes." There are certainly days when sanity dictates that we stay in our own corner of the proverbial forest. Staying too long, however, is like saying “open sesame” to the door of liability. This often comes up in the context of workplace harassment and bullying investigations. We’ve all gotten much better at the initial response to complaints and we conduct our investigations promptly and fairly. The problem arises, however, when the harassment, if established, is not sufficiently severe to warrant terminating the alleged harasser so some other resolution is formulated (e.g., the harasser is separated from the complainant). With such a remedial measure, our job is done, right? Actually, the seeming completion of a workplace investigation is precisely not the time to retreat to our corner of the forest. Rather, that is the time to periodically go out to see the complainant to make sure that no further harassment is taking place. Our anti-harassment policies become viable defenses when they are not just initially followed but continually followed to stop any ongoing harassment. Getting out of our corner of the forest means being proactive and being proactive defeats lawsuits. Although we all continue to get older and more experienced, the answers to many of our day-to-day problems nonetheless can still often be found in the pages of books long left unopened on our children’s bookshelves (or Kindles, I-Pads, etc.). Note: All of the Pooh-isms in this blog article can be found in A.A. Milne's Winnie the Pooh and Pooh's Little Instruction Book.