California’s courtrooms are likely to be filled with employment cases for the foreseeable future. California has a significant and growing body of laws governing the field of employment. These include detailed regulations concerning wages and hours, which have been the grist for numerous class action lawsuits. There are also serious state laws forbidding discrimination against employees based upon factors including race, gender, age and medical condition.
The latter were at issue in the recent trial of claims by longtime Los Angeles Times sports writer T.J. Simers that he was effectively fired from the Times due to age and medical condition. Simers resigned from the paper in September 2013, allegedly under pressure from the Times due to his age and medical condition, a recent mild stroke. A Los Angeles jury recently awarded Simers in excess of $7 million due to his claims. https://www.latimes.com/local/california/la-me-simers-verdict-20151105-story.html
I think employment cases are a different breed in the world of business litigation. Many of my cases are “business versus business,” pitting two business owners fighting over what may appear to a jury to be very large sums of money. My concern is that the jury will have no natural sympathy for members of the ownership class, or may not understand their struggle.
On the other hand, employment is a condition that we all experience. Almost everyone on a prospective jury has been an employee; a few may have experience as employers. If a juror has not personally been fired, they likely know someone who has. All should be able to relate to the stress of making ends meet when employment ends. The choice by an employer to take an employment case to trial will therefore be a risky one.
The T.J. Simers case is an illustration. Simers had a mild stroke in March 2013 when he has about 63. He resigned in September 2013. The question became whether his resignation was caused by the Times’ discrimination due to his age and condition in the six months between stroke and resignation, or whether the Times had legitimate quarrels with his performance.
The Times’ biggest quarrel with Simers was that Simers urged the Times to provide a link on its website to a video featuring Simers, his daughter and NBA star Dwight Howard, saying only that the video was shot by a “friend.” In June 2013 the Sports Business Journal revealed that the video was created to promote a TV show based on Simers’ life, and that the Times link to the video was intended to create “buzz” for the project. This resulted in Simers’ suspension and an investigation. In August 2013, the Times told Simers his column was being taken away, but that he could continue as a reporter with full pay and benefits. Instead, Simers resigned and took a job at the Orange County Register.
The Times also countered Simers’ case with statistical evidence that they had a number of writers on their staff that were relatively older.
The Times may have had a legitimate beef with Simers over the video incident, and the statistics may have been useful in calling in to question whether they had a youth campaign. However, their case was damaged, and apparently sunk, by a prior incident, in May 2013, two months after the stroke and one month before the flap over the video. At that time, the Times told Simers his three weekly columns would be reduced to two, citing poor performance on recent columns. Simers had a storied career as a sports columnist. Apparently the Times was unable to produce any written evidence of criticism of Simers’ column that preceded his stroke. The reduction in his columns after the stroke and before the video controversy was apparently too much for the jury to overlook.
Every employment attorney I know who advises employers says much the same thing – regularly review and document employment performance. A written memo to Simers calling his columns into question before his stroke could have changed the outcome of the trial, and the lack of such evidence was apparently pivotal.
Employees take note – the jury is listening.
I don’t think we’ll be seeing abatement in employment cases any time soon.