In the season finale on The Good Wife, The Dream Team, the writers went completely off their rockers. They had the firm file a multi-million dollar class action lawsuit with multiple plaintiffs. The firm wins a $25 million judgment. Huzzah! But then it all goes terribly awry.
Two regular nemeses of the firm (played by Michael J. Fox and Martha Plimpton) team up and sue the firm. They say the firm must have bribed the judge or done something wrong. They ask the firm to drop the class action suit and they say they’ll then drop the suit against the firm. The firm says no. Later, the firm changes its mind and agrees to drop the class action if the lawyers will drop the suit against the firm. Fortunately, they say the deal is off the table.
Hello? Anybody home? If the writers wanted to end the show and have the firm shut down in disgrace, they could let the firm make this offer. Otherwise, it’s a non-starter.
The firm has a duty to act in the best interests of its clients. It can’t dismiss a suit without client permission. It can’t dismiss a suit because the dismissal benefits the firm. It can never, ever, act against the interests of the client.
This plot device was so colossally stupid I almost didn’t make it through the episode. Fortunately, they didn’t have the double-dealing dismissal actually go through.
How could they have made the plot as interesting without sacrificing any sense of real world attorney ethics? How about having the clients offer to dismiss their suit to save their beloved lawyers? Okay, I’ll try to stop laughing. What about having the firm notify their malpractice carrier about yet another suit, and have the insurance lawyers try to double-deal the firm? If their carrier hasn’t dropped them by now, it should. Maybe next season.
While we’re at it, can we all promise to stop having depositions and hearings happen the day after the suit is filed? No? Puh-leeze. I can’t get a hearing on even the smallest issue for at least 2- 3 weeks. I’d love to see shows that actually use the delays to help create tension in the show. But that’s a blog post for another day.
C’mon, Good Wife writers. I’m a lawyer and a fan. Try not to make me throw things at the TV. I’ll be watching in the fall. You have plenty of time over the break to catch up on your research.
Wednesday, May 23, 2012
Saturday, May 5, 2012
The Good Wife and At-Will Employment
A couple of weeks ago, The Good Wife dealt with at-will
employment in an episode called The Penalty Box. In that episode, Cary Agos,
the former colleague of our heroine Alicia, who joined the prosecutor’s office
in a huff a few years ago, decided to interview at Alicia’s firm. The
prosecutor’s political consultant saw him and ratted him out.
Cary had pretty much decided to stay at the State’s
Attorney’s office, but his boss confronted him and asked if he’d been interviewing.
When he admitted it, his boss fired him. Fortunately for Cary, he had an offer
from Alicia’s firm, so he got a soft landing.
But this situation comes up all the time in real life. In
all but one state, Montana, employees can be fired for any reason or no reason
at all. That means you can be fired for looking at other job opportunities. I
see people who had potential employers call current employers for a reference.
They don’t get the job and they’re fired. Can they do anything? Probably not.
They’re out of work and out of luck. Maybe the can sue the potential employer
for tortious interference, but it will be tough to prove.
I’ve seen people fired for not taking their CVs down from
Monster or Career Builder. The employer saw the resume, assumed they were
looking, and gave them the ax.
If you’re writing about your characters’ employment, never
forget that they can be fired for any reason, including arbitrary ones. They
can be fired because their boss didn’t like their shoes or shirt that day,
because the boss was in a bad mood, or because they got caught looking for
another job. If you need conflict in your story, look no further than at-will
employment.
Friday, March 30, 2012
Harry’s Law, At-Will Employment and Concerted Activity
The most recent episode of Harry’s Law, the terrific show starring Kathy Bates as a lawyer who also owns a shoe shop in Ohio, had an issue near and dear to my heart. The employees of the shoe shop, which is on the floor below the law office, owned by the same person as the law firm, and managed by a law firm employee, were outraged about working conditions.
The law firm employee managing the shoe shop, who replaced a much beloved manager, changed the rules. Suddenly employees felt like they were in prison. They were micromanaged, with every move tracked. Their clothing was inspected, hours tracked to the minute, and got no breaks.
After the employees complained to the boss’s boss, they were all called into a conference room for a meeting. They expressed their grievances and the manager fired them all for complaining. In comes our hero, who is always a fighter for the underdog. Harry stands up . . . for the manager. She says the manager can fire them for any reason.
Harry is wrong. While Ohio, like every state in the union but Montana, is an at-will state, meaning employees can be fired for any reason or no reason at all, employees do have some rights. The right to get together to complain about working conditions is one of them.
I’m not saying this sounds familiar, but . . . check out this case where 14 employees (I represent 8 of them) were fired for wearing the color orange. They were fired because their boss thought it was a protest over, you guessed it, working conditions.
The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”
Some folks who know the NLRA may nitpick me and say the store probably doesn’t make enough money to be covered under that law. Retailers must have gross annual receipts of $500,000 or more. However, because the store is part of an integrated enterprise, that is, the same owners and management as the law firm, I’d argue you have to include the law firm’s revenues, which we know are well over that (Harry win’s some big cases). Plus, for law firms the threshold is only $250,000/year.
If one employee had complained about their own working conditions, they wouldn’t be protected. But complaining on behalf of at least two employees is protected under NLRA. The supervisor broke the law by firing them.
I hope we’ll see the employees fight back in the story. Sending the message that employees can be fired for complaining about working conditions is wrong.
The law firm employee managing the shoe shop, who replaced a much beloved manager, changed the rules. Suddenly employees felt like they were in prison. They were micromanaged, with every move tracked. Their clothing was inspected, hours tracked to the minute, and got no breaks.
After the employees complained to the boss’s boss, they were all called into a conference room for a meeting. They expressed their grievances and the manager fired them all for complaining. In comes our hero, who is always a fighter for the underdog. Harry stands up . . . for the manager. She says the manager can fire them for any reason.
Harry is wrong. While Ohio, like every state in the union but Montana, is an at-will state, meaning employees can be fired for any reason or no reason at all, employees do have some rights. The right to get together to complain about working conditions is one of them.
I’m not saying this sounds familiar, but . . . check out this case where 14 employees (I represent 8 of them) were fired for wearing the color orange. They were fired because their boss thought it was a protest over, you guessed it, working conditions.
The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”
Some folks who know the NLRA may nitpick me and say the store probably doesn’t make enough money to be covered under that law. Retailers must have gross annual receipts of $500,000 or more. However, because the store is part of an integrated enterprise, that is, the same owners and management as the law firm, I’d argue you have to include the law firm’s revenues, which we know are well over that (Harry win’s some big cases). Plus, for law firms the threshold is only $250,000/year.
If one employee had complained about their own working conditions, they wouldn’t be protected. But complaining on behalf of at least two employees is protected under NLRA. The supervisor broke the law by firing them.
I hope we’ll see the employees fight back in the story. Sending the message that employees can be fired for complaining about working conditions is wrong.
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