Nice Guys are Finishing Last in Today's Economy

If there were a slogan on the door to Matthew Hirsch's law office, it might read: "Give me your tired, your poor…and your outsourced. Your harassed, your laid off, your summarily discharged."

The Trumbull attorney never sought to become a barometer of the regional – if not national – economy. Yet, that's what his employment practice has become, as disenfranchised executives and professionals come to him for legal advice about job loss.  

"In 2007 my employment practice accounted for perhaps 20 percent of my work," says Hirsch, who practices from an office on Corporate Drive. "Today, I spend about 40 percent of my time on employment-related cases – and a week doesn't go by when I don't hear from perhaps four or five more people who have just joined the ranks of the unemployed… good people are still losing their jobs in this economy."

Hirsch counsels both businesses and workers on employment law, so his perspective is broad. One key current trend: more and more workers are being told there is "cause," usually falsely so, for their terminations rather than simply downsizing. Challenging the merits of these terminations has swelled the ranks of Hirsch's client base.

Yet, in this day of flexible workplaces and enlightened management practices, why would a company be deliberately callous in ending a person's employment?

"Companies have become so nervous about litigation that they build cases against people who in better times would be their best workers," he points out. "It's awful, but terminations are often being based more on what will or will not lead to litigation than on performance or merit. I've seen plenty of evidence of people who have been solid, longtime employees, who are loyal to their companies and have great employment records. They are let go instead of far less qualified individuals."

Why? Employers often fear legal action from proverbial troublemakers – while nice folks get the boot.

 Attorneys such as Hirsch can help determine whether a person's case has merit. "Unfortunately, what is unfair isn't necessarily unlawful," says Hirsch. "For a termination to be unlawful a person has to be terminated on the basis of age, gender, race, nationality or membership in another legally protected group of people. The law is quite clear on that.

"These days, I'm also seeing more instances of reverse discrimination," Hirsch adds. "From having worked with HR departments, I know that companies often decide that they have eliminated too many from a particular group – so other people have to go instead. In the stroke of a pen, the lives of individual people and their families are changed, forever. It's heartbreaking."

Hirsch often counsels aggrieved individuals to pursue non-legal methods of recourse as an initial step. If that fails, Connecticut employees can initially seek redress through the state's Commission on Human Rights and Opportunities (CHRO).

Nowadays, corporate policies often mandate mediation and arbitration of legal complaints - which can pose a stumbling block to dismissed employees. Complicating matters somewhat, each state has its own requirements on the enforceability of such clauses. Thus, a person who used to work in, say, Massachusetts or New York could face entirely different sets of legal circumstances than those who used to work in Connecticut or Rhode Island.

"Mandatory mediation and arbitration were supposed to make achieving resolutions quicker and less costly to both the employer and the employee," says Hirsch. "But after having handled both types of cases I can honestly say that is not always true. Arbitrations cases can take just as long – and cost 10 times as much – as an ordinary lawsuit.

"In addition, the ex-employee must be mindful on whether the policy requires the former employer to pay arbitration costs. If not, that can be a barrier to bringing a claim against a company," Hirsch adds.

What should the employee do? Always do your best work – but be on guard and save everything, Hirsch advises. That includes records of emails and other correspondence with co-workers and superiors, except information that might violate a company's confidentiality.

"For starters, it should go without saying that all employees should have copies of their performance evaluations in a file at home," Hirsch says. "And if you get a nice note from a superior or a customer, save that as well – and do it before things turn sour at work.  Do not wait until you are terminated to obtain key documents in your employment file.

"Time and again, I've seen people literally get walked out the door with no records of anything that transpired between them and their bosses," says Hirsch. "This is one of those situations where, as the saying goes, you can always expect the best … but you should also always prepare for the worst."