probate court labor relations speech
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Thismaterialispresentedforeducationalpurposesonly.Thismaterialisnottoberelieduponinlieuof
legalconsultation.Ifyouhavelegalissuesregardingemploymentorlaborlaw,consultyourcounty
attorneyoranotherlicensedattorney.Dr.GayleGearandthoseparticipatinginthisspeechmakeno
expressorimpliedclaimsasaresultoffollowingtheiradviceand/orpurchasingtheirservicesor
products.Theclaimsmadehereareanecdotalonly.2013GayleGear.
Labor Relations Law Update
Chief Clerks Conference
Speaker: Gayle Gear, Ph.D., J.D
September 10, 2013.
Thank you so very much for your invitation to attend
this conference. I would be remiss if I did not
acknowledge the wonderful experiences that I have had in
probate court as a lawyer filing estates in Walker County,
filing petitions for adoption in Jefferson County and in
Shelby County. My fondest memory is associated with
the adoptions of our two grandbabies, Chloe and Cole. On
each occasion, the clerks in the Shelby County Probate
Court were caring and took a personal interest in all thedetails of what was for us a complicated process. Several
years ago Kim Melton arranged to have our four-year old
grandson Cole assist with the adoption of his nearly two-
year old baby sister Chloe. The Judge shared a spare robe
with Cole who from the bench asked his Mom and Dad if
they would love Chloe forever and ever. The parentswere overjoyed and assured the Court that the love was
forever and ever. With that brother Cole lowered the
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gavel and granted their petition. Of course everything
was handled according to court rules, but the staff of the
probate court went further and touched our heart. It is my
understanding that every adoption is handled with
personal attention and love.
Equally touching was the adoption I handled in
Etowah County for a married couple who were unable to
have children. The Probate Judge welled up with emotion,
as we all did, during the adoption hearing of a dear littlegirl whose birth mother relinquished parental rights
because she felt she was not capable of rearing another
child. The mother felt it was best to share her daughter
with this loving family. The family and probate staff in
attendance could feel the power of Gods love.
I have also had the privilege of filing adoption
petitions in Jefferson County. The Probate staff under the
leadership of Judge Alan King efficiently handled these
petitions. The hearings were memorable events for the
families and their friends in attendance. But in mentioning
these counties, I know that I am overlooking so many actsof kindness extended everyday across the State of
Alabama in the various probate courts. For example: In
Winston County the staff of the probate office greets my
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husband with a friendly smile. His requests for
information and assistance are always met with
enthusiasm. You certainly must know how important your
work is to us. The only court people are likely to consult
in their everyday lives is the probate court.
As supervisors, you have additional responsibilities
in the probate court. You are relied upon to address
disputes or grievances in the workplace. When issues
emerge, you are called upon to promptly respond. Anunderstanding of labor relations law is a priority for the
probate judge and the chief probate clerk.
Why are labor laws necessary in the first place? The
answer is as you would expect: (1) to assure each
employee fair treatment; (2) so each employee canperform at his or her best; and (3) so that some employees
are not favored or disfavored by co-workers or
supervisors. Given our workforce is not made up of
robots, problems inevitably arise. Some are seemingly
trivial and some obviously very serious. Regardless, these
workplace issues affect productivity and build resentmentamong the employees. Persons who feel aggrieved tend
to take off more sick days, work less enthusiastically, and
cooperatively. Some grievances, when unaddressed and
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go unresolved, can end up in state or federal court. The
employer-county commission and in some instances
supervisors in the probate office can be held liable for
money damages. The employer can also be directed by
the court to reinstate employees or institute changes in
their practices. Larger counties have even been held under
court supervision for years at the cost of millions of
dollars.
Despite your best efforts as a supervisor, sometimesemployment disputes emerge in the probate office. Not to
say that some disputes are not legitimate, but we must
remember sometimes people have personal issues that
affect their work performance and their perceptions of
fairness. Some employees are overly sensitive and
frequently express concerns that they are being treated
unfairly. On occasion, others believe that they are being
punished because they did not support the winning
candidate during a recent probate judge election. Some
blame discrimination as the reason being overlooked for
promotions or for poor performance evaluation. While
you may honestly believe that their concerns lack serious
merit, you must timely address these concerns in an
impartial manner. If you cannot, you must refer the matter
to others with greater supervisory status.
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I recognize that as a supervisor you are likely
inundated with advice on labor relations. There seems to
be so many things to worry about in the things you say
and do in your supervisory capacity. Take heart, you are
not alone. Teachers of young children--even Kindergarten
teachers-- are now being counseled not to hug children.
Fears of violating the First Amendment have driven some
schools to skip reciting the Pledge of Allegiance to our
great country. I fear that we have devolved into aneurotic politically correct society. Hopefully this too
shall pass and once again children will be able to sing in a
public school God Bless America.
That said, you are keenly aware of the importance of
labor relations law. I recognize that you regularly receive
guidance from your county personnel department as well
as the States Unified Judicial System. I understand that
many here today also attend conferences devoted to labor
laws.
I hope to contribute today in some measure by
focusing on the importance of addressing employmentissues (1) promptly; (2) at the local county level; and (3)
accessing the resources readily available. In so doing the
county may avoid costly and protracted civil litigation.
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From my review of over two decades of cases
involving probate courts, it seems that the prospect of
expensive and time-consuming litigation could have been
minimized. I say this not because I have any particular
dislike for the court system or lawyers for that matter, but
because handling employment issues at your county level
is best for many reasons that we will discuss this
afternoon.
I also discourage litigation because it generates longlasting ill-will among your employees. It should not be
overlooked that litigation may subject you individually to
money damages. And your behavior may also subject
your county to money damages and, in some instances,
ongoing supervision by a federal court.
I would also give this advice to any employee who
contemplates civil litigation. Few cases filed in court lead
to a jury trial. In fact, very few employment disputes --
even serious ones-- are eligible for resolution in a
federal court. Unfortunately many people have been led
to believe litigation is the most effective way to resolvedifferences. The reality is quite the contrary. A federal
court is a court of limited jurisdiction. In employment
disputes, the court addresses only disputes involving
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certain types of discrimination. Moreover, the federal
court recognizes that it is not superior to state court. In
many instances the findings of a county personnel board
or civil service commission will be adopted by the federal
judge, particularly when the parties have fairly and fully
litigated the employment dispute.
Most employment litigation stem from claims of
unfair treatment in the workplace and discrimination.
Regardless of the nature of the dispute, resolution isenhanced with open communication and documentation
of efforts to address workplace issues. Employees benefit
from regular performance evaluations. Employees also
benefit when allowed an opportunity to correct
performance deficiencies.
The very first resource readily available to all parties
is the employee handbook. This document sets forth the
rights and responsibilities of the employer and the
employee. Several larger counties have a civil service
commission or a county personnel board. These
personnel-type agencies also issue rules regulating payand classification, resolution of grievances, and hearing
disciplinary appeals. Acting in its quasi-judicial capacity,
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the board provides a full and impartial hearing to the
aggrieved employee.
At this hearing, the employer must offer proof of thecharges that have been filed against the employee. The
charges must be precise, clear, and definite. An employee
is given an opportunity to cross-examine the employers
witnesses and call witnesses on his behalf. After
consideration of the evidence presented by both parties,
the board issues findings of fact and a decision. TheBoard has the power to uphold, reverse or modify
punishment. This ruling is a final decision absent an error
of law.
These proceedings are relatively expeditious and
throughout opportunities for settlement can be pursued.Costs are generally not prohibitive. In fact, in many
instances lawyers are not required. Witnesses are not
subjected to depositions.
The boards decision may be appealed to the county
circuit court. The circuit court does not rehear the
caserather the transcript of the board hearing is
reviewed for legal error or due process violations.
Reversing the boards final decision is rare. The
decision is upheld if it is based on substantial legal
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evidenceinterpreted to mean if there is any legal
evidence to support the decision. The court does not have
the power to substitute its judgment for that of a civil
service commission or county personnel board.
Compare a board hearing to litigation in federal
court. Costs quickly become astronomical compared to
the costs associated with a county board hearing. Even
when civil litigation is pursued few cases proceed to trial.
The defendant-county will almost certainly file a motionfor summary judgment at the close of the discovery phase.
While the court does not presume to act as a jury, the
court has the power to dismiss cases in advance of a jury
trial under some circumstances, particularly when the
court deems the evidence insufficient as a matter of law.
Not allowing the case to proceed does not necessarily
mean that the employee has been treated fairly; rather it
likely means that the evidence is insufficient in
consideration of the claims before the court. It should be
evident at this juncture that the civil court is not a super
personnel board.
Although only a few cases reach a jury trialthe
costs associated with litigation are astronomical in terms
of time, money, and loss of work hours for all
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concernednot to mention the turmoil in a probate office
where the work must go forward. Because of this,
counties often agree to settle, without admitting fault, in
order to curb the escalating costs of going forward and the
risks attendant to a jury trial. In some instances, the court
will step in and appoint a mediator to resolve the case.
In the very unlikely event that a jury trial is held,
regardless of which party prevails, the verdict seldom is a
sweet victory. Money damages are often not enough tosatisfy the litigant. For example, the litigant may have
been out of a job while the case is pending. While back
pay may be ordered, it is difficult to calculate the value of
lost promotional possibilities or training opportunities.
During the entire process, the litigant has had to re-live
the events that gave rise to the employment dispute in the
first place. The irony is that lawyers for a prevailing
plaintiff may be awarded attorney fees in excess of the
plaintiffs jury verdict. As you know, in federal
discrimination cases the prevailing plaintiff has a right to
court costs and attorney fees.
As you can see, litigation is complex: convoluted
laws, confusing precedents, and changing interpretations
of the laws make the process laborious to the extent there
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is a cadre of labor lawyers. Treatises are devoted to
such matters. Over the years discrimination claims have
been broadened to include ancestry or ethnic
characteristics among the identifiable classes in Title
VII cases. Gender discrimination has been broadened to
prohibit discrimination related to pregnancy and health
issues related to pregnancy.
Despite shifts in the law, we can take comfort in this
stable reality: there are fundamental principles thateffective employers follow when addressing workplace
issues. These fundamentals are easy to understand and are
the foundation of all labor laws. In essence, effective
employers and supervisors adhere to the golden rule
taught in our homes, our schools, and at our churches.
Employers and supervisors must be encouraged and
regularly reminded to follow these fundamental principles
even when they have the power to bypass it or on some
personal level want to bypass fair play in the workplace.
The golden rule would frown upon a recently elected
probate judge who treats more favorably those whocampaigned for him. The golden rule would frown upon
an employee who immediately charged discrimination
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when she knew that her supervisor is simply a stickler for
details.
Lets begin our general discussion of labor laws andthen follow up with an actual case filed against a county
and a chief probate clerk. As you know, local personnel
boards have been put in place so that employment
disputes are addressed promptly and impartially. For the
employer, such a system assures efficiencyone that is
not bogged down with internal strife among theemployees or with the supervisors. In addition, there are
federal labor laws that provide a framework for efficiently
addressing workplace disputes. All states have enacted
laws parallel to the federal statutes that prohibit
discrimination in employment. For the most part state
laws are patterned after Title VII enacted in 1964 and
amended on several occasions. As you know, Title VII
was the first major, modern, federal discrimination
statute. Employment discrimination laws protect such
discrete groups as race, gender, sexual harassment,
religion, national origin, age and disability. A plaintiff in
a Title VII looks to the employer-county for monetary
compensation and other relief.
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At the local level, employment practices are
governed by county employee handbooks. When
confronted with an employment dispute, the employee is
directed to file a formal complaint with an immediate
supervisor. The handbook likely directs the employee to
seek guidance from the human resources director related
to such matters as discrimination, family medical leave,
workplace safety violations, workplace accommodations,
and wage and hour disputes.In some instances, it may be necessary to engage the
countys personnel board or civil service commission.
These independent entities customarily handle such
matters as pay and classification, hiring and promotions,
and grievances. They often play a quasi-judicial role in
matters involving grievances and appeals from
disciplinary actions.
There are also other agencies outside county
governance. For example, if the dispute involves overtime
or unfair pay practices, the parties may seek guidance
from the U.S. Labor Departments Wage and Hour Board.This agency is easily accessed by phone or internet and
available to supervisors as well as non-supervisory
personnel. This agency also provides educational
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programs in addition to personally answering your
questions concerning laws governing overtime and
minimum wage.
There are agencies that are commissioned to address
discrimination in the workplace. The prime example is
the Equal Employment Opportunity Commission
(EEOC). This agency has the power to investigate claims
filed by employees alleging discrimination based on a
number of factors: race, gender, age, religion, andnational origin, disability, sexual harassment, and other
matters such as equal pay for equal work. The EEOC also
has power to enforce the anti-retaliation provisions of
each of the federal laws within its jurisdiction.
As you know, the EEOC has a local Birminghamoffice. Among its many functions, EEOC is
commissioned to investigate claims pertaining to the
following federal laws that prohibit discrimination in the
workplace in both public and private employment.
(1) Title VII pertains to race, gender, sex,religion, national origin, and retaliation for
reporting or assisting in the EEOC investigation.
Sex discrimination has been expanded to include
pregnancy based discrimination. Remedies under
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Title VII include: reinstatement, retroactive
seniority, and back pay, and other limited
compensatory damages.
(2) The Age Discrimination in EmploymentAct (ADEA) affords protections to employees
over forty years of age. This law also has a
prohibition against retaliation for reporting
discrimination or participating in the process
intended to remedy such discriminatorypractices.
(3) The American Disability Act (ADA)pertains to disability and workplace
accommodations.
(4) Equal Pay Act (EPA) pertains to equalcompensation for equal work. We likely all arefamiliar with the Lilly Ledbetter Fair Pay Act of
2009 that expanded the ability of the plaintiff to
recover for pay discrimination.
Among the administrative steps, the aggrieved
employee must file a timely claim with the EEOC. Timely
generally is interpreted to require filing within 180 days
of the occurrence, that is the discriminatory event at
issue. The same is true under ADA and ADEA. Lawyers
may file other claims of workplace discrimination with
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the EEOC in order to have the benefit of an investigation
and to allow for possible conciliation of the matter.
The EEOC conciliation process allows the parties todiscuss the case without fear that such will be discussed in
any public forum, including in a federal court. EEOC
Investigation is often quite thorough, the employer is
notified of the charges and called upon to respond and
produce employment records. The EEOC has the power
to go on-site and interview witnesses.
The EEOC legal staff may elect to file suit on behalf
of the employee-claimant. If the EEOC declines to pursue
the case it does not mean that the case had no merit. The
EEOC then issues its findings and determination along
with a right to sue letter allowing the claimant to bringsuit. These findings by the way are not binding at trial but
are helpful in getting the parties to the bargaining table.
Ultimately, if the matter is not successfully resolved,
the claimant may sue. The federal court is often the
forum selected because the county will most certainly be
one of the defendants, especially in matters based on
discrimination in the workplace.
Let us examine one case and as we do, I would like
you to evaluate how it was handled. Compare the
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difference between handling the dispute promptly at the
local county level and that of filing a lawsuit in federal
court.
Needless to say, lawyers are mindful of previous state
court proceedings when filing employment discrimination
suits. County attorneys are equally mindful that previous
administrative rulings may afford additional defenses.
Before we begin with an actual example of a lawsuit,
let me list for you factors that may help you decide which
avenue is generally best in addressing employment
disputes. Consider the following:
1.TimelinessResolution speed at various stages.2.Available relief.remedies available.3.Control control over the process.4.Coststhe time, effort, and money spent.
Lets begin shall we. These are allegations pertaining
to an actual employment dispute that ended up in
federal court in Alabama. Lets troubleshoot thissituation and determine the many opportunities that
were readily available to resolve this dispute at the
outset.
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Remember, these are the allegations in a complaint
filed in federal court many years ago. We will refer to the
plaintiff as Ms. Smith, although this is not her real name.
Since the incident giving rise to the employment dispute
occurred in the 90s and the parties are no longer in
office, there is no need to speculate culpability--especially
when the case never got beyond the allegation stage and
the opposing party did not get an opportunity to tell their
side of the events. This is simply presented for thepurpose of todays discussion.
As you examine the allegations, think about the
opportunities and the agencies available to timely address
these issues.
Here we go. Ms. Smith, a part-time employee in theprobate office in July 1997, filed a complaint against (1)
her employer - the County - and (2) the Chief Clerk of
the County Probate Court. The chief clerk is sued
individually for money damages. The employer-county is
sued for money damages and for the actions of the chief
clerk. Remember, Ms. Smith had served as a part-timeemployee under the supervision of the chief clerk since
September 1992. Here are the allegations in the
complaint:
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The chief clerk hired Ms. Smith to a temporary
position in the probate office in September 1992.
Soon after, he told her that he would grant her a
permanent position. Ms. Smith claimed that it
became apparent that a promotion to a full time job
would require her to give in to his sexual advances.
She refused his advances, which were both physical
and verbal in nature. He invited her out to dinner,
made comments about getting comfortable with heron the couch. He grabbed her around her waist, put
his hand in her blouse and grabbed her breast. She
also alleged that he grabbed her buttocks. She did
not receive a permanent position. Ms. Smith
complained about these advances to another
supervisor - a female supervisor - who told Ms. Smithto handle it herself.
Time passes. The probate judge did not relent
and Ms. Smith did not comply with his requests that
were clearly outside the scope of the terms and
conditions of her employment. Ms. Smith was never
promoted. During her employment, Ms. Smith was
diagnosed with multiple sclerosis. That disease did
not affect her ability to perform her work. That
disease did however diminish her ability to lift her
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legs and to walk. She therefore did ask the County
and the probate judge to cover some exposed
telephone cords that were on the floor of the probate
office over which she had tripped. Defendants
refused. Ms. Smith continued to trip over the exposed
cords and as a result was eventually injured. Ms.
Smith also asked the defendants to provide her a
parking space so that she could have easier access to
the probate office, but they refused. Consequently,she had to park in the street and as a result she
received numerous parking tickets.
Lets analyze this.
What resources are clearly available at the local level
to address this employment dispute?
The countys personnel handbook was likely
immediately available to all parties. In many counties the
handbook is published on line and regularly updated. The
handbook would certainly detail the employers policy
against workplace violence, hostile work environment,
sexual harassment, and discrimination of all kinds
(including sex, disability, age, national origin). The
handbook likely sets out the employers stance against
retaliation for filing claims of discrimination. The
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handbook would most certainly discourage supervisors or
others from taking any actions that may dissuade others
making or supporting a charge of discrimination. The
handbook would address rights under the Americans with
Disability Act (ADA) and the steps to follow when an
employee seeks an accommodation.
You can be assured the county attorney has the fond
expectation that employees will read and follow the rules
and when necessary contact the designated local officialassigned to offer assistance.
The handbook will likely include steps to follow in
reporting concerns. If that is not appropriate, then the
employee would likely be directed to a designated
official within the administration. For disabilities, there isusually a designated official that handles violations of the
American with Disabilities Act. It is also likely that
bulletin boards are awash with federal anti-discrimination
posters.
In this case, it appears all county regulations were
bypassed when the immediate supervisor allegedly told
Ms. Smith to handle it on her own. To have avoided
county liability, what should have been done?
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In all caseseven when the employee asks you to
keep it a secretyou must report the allegation to the
designated official within the county administration. An
impartial investigation must be undertaken. The employee
must be assured that her complaints will be investigated
and taken seriously.
Had proper and timely reporting been done, the
county may have avoided civil litigation. In any event, at
least Ms. Smith would have been protected from theongoing mistreatment by one of her supervisors. Under
the federal laws, Ms. Smith timely reported as required.
The supervisor apparently ignored her complaints. This
failure to address the problem that was timely reported
subjects the county to liability for money damages and
other relief as directed by the court. But, there is more
exposure. The county may be responsible for the
impermissible acts of the chief clerk since he was acting
in a supervisory position.
In a separate matter the county failed to
accommodate Ms. Smiths disability that qualified asimpairment under the American with Disabilities Act. Her
request for an accommodation also was ignored by her
immediate supervisor. The court may declare the county
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has an unofficial policy of ignoring such claims and order
further relief.
What happens next you wonder? It is not surprisingthat Ms. Smith filed a charge with the EEOC claiming she
was subjected to sexual discrimination. Under these
allegations, she rightfully claims quid pro quo
harassment. The impermissible trade was sex in
exchange for a permanent full-time job. Under these
allegations, she also rightfully claimed that her workplaceconstituted a hostile work environment. The acts of
harassment were severe in nature, pervasive and the
actions impaired her ability to perform her job.
Ms. Smith also claimed that she had a recognized
impairment under the ADA and the county refused tooffer a reasonable accommodation. Recall she claimed
she could do her job with a reasonable accommodation.
The law does not require an employer to accommodate an
unreasonable accommodation. Covering the exposed
wires was not an unreasonable accommodation nor was
providing a physically accessible parking space.Reasonable accommodation was requested and no action
was taken by either the chief clerk or the county.
Lets continue:
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After receiving a right to sue letter from the EEOC,
Ms. Smith filed suit. She sued the chief clerk and the
county. She filed the following federal claims against
them both: (1) quid pro quo and hostile work
environment sexual harassment and (2) disability
discrimination. She also filed the following state claims
against the county and the chief clerk: (1) assault and
battery; (2) invasion of privacy; (3) outrage; (4) negligent
and wanton supervision and retention. In her prayer forrelief, Ms. Smith demanded compensatory and punitive
damages, attorneys fees and costs. She did not ask for
instatement to a full-time job. Other types of injunctive
relief that may be imposed include sexual harassment
training, modification of the countys supervision and
retention practices.
Ms. Smith also sued the chief probate clerk
individually claiming he violated the Equal Protection
Clause of the Fourteenth Amendment of the United States
Constitution. She claimed he altered the terms and
conditions of her employment by requiring sexual favors
in exchange for full time employment.
Ms. Smith sued the county for damages because the
chief clerk as her supervisor and that his actions were
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taken within the line and scope of his employment. The
county likely retained separate counsel for the chief clerk
as the countys legal position would be in conflict with
the clerk behavior.
The chief clerk may attempt to claim that as a state
employee he has qualified immunity which would
insulate him from personal liability from money damages.
The court would likely deny that defense reasoning that
the conduct alleged violated clearly established law ofwhich a reasonable person would have known.
In closing, I submit that all our laws are based upon
Judeo-Christian Laws. It is then appropriate to consider
the words of a great teacher. In the Sermon on the Mount,
Jesus gave this advice to those who had gathered to hearhim speak. I think it is good advice no matter where you
stand on his divinity. In Matthew 5:25-26, Jesus said:
Settle matters quickly with your adversary who is
taking you to court. Do it while you are still together on
the way to court, for your adversary may hand you over to
the judge, and the judge may hand you over to the officer,
and you may be thrown into prison. Truly I tell you, you
will not get out until you have paid the last penny.
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Many think the only way to defend their rights as an
employee is to take their employer to court. If there is no
litigation, there will be no justice. They really feel it is
just that simple. You and I know, there is a middle way
and it is the better way. With solid reporting procedures in
your chain of command and policies that enforce
accountability, you can head expensive problems off
before they reach the courthouse. Alternate enforcement
routes allow employee and employer to meet in a privatesetting and solve ongoing disputes by availing themselves
of the remedies put in place to ensure that fair labor
practices are the norm in probate court.
You are called upon each day to deal with reasonable
people and unreasonable people. In all instances please be
reasonable and remember the golden rule is a steady
guide. I wish you well and please know I appreciate the
services you provide to our Alabama citizens.
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