confidentiality Archives - Workers' Compensation Watch

“They aren’t going to want the publicity.”

In my experience, this phrase is right up there with “This isn’t about the money” when it comes to red flag phrases from potential clients looking for legal representation in a case against their employer or former employer in a wrongful termination or discrimination case.

Like a lot of common misconceptions about the legal process, “They aren’t going to want the publicity” is based on some truth that is stretched beyond reality. Companies like to keep litigation or disputes with former employers private. Employers usually demand confidentiality to settle cases out of court. Sometimes even routine company documents are subject to protective orders from courts.

But the threat of bad publicity is almost never sufficient to settle a dispute with employee quickly and on favorable terms to an employee. This post is about detailing some of those reasons.

Is your dispute with your employer newsworthy? In other words, why would anyone else be interested in what happened to you at work? If the mistreatment is based on something like sex, race, religion or disability, etc. you at least get your foot in the proverbial door. Same if you are opposing some unsafe or unlawful practice by your employer. But if your mistreatment is more or less a personal dispute between you and your boss or you and your co-workers, it’s not news.

Not all news is fit to print – Let’s say you have a legitimate legal case against an employer or former employer, does that mean the media will be running to put a microphone in your employer’s face? If what you are alleging is common place or typical then probably not. Maybe if something happens in your case like a favorable decision on a motion or verdict, then maybe that will merit some media coverage. But most civil cases don’t garner media attention based on merely filing a lawsuit.

Less news is fit to print nowadays – There is less coverage of local news due to the decline of local newspapers. So even if you have a strong legal case that may have some public interest, there are fewer reporters that would be able to cover your case. Early in my practice, up until about 2010, the local Associated Press would call me routinely about filings in my federal employment cases. Not anymore. Newsworthy cases may now get picked up in outlets like Law360 or Bloomberg Law that are read by lawyers, but it’s less common to read about civil cases in general publications.

Negative publicity is far from fatal for major employers – So let’s say that your case against your current or former employer garners some media attention and that attention is unfavorable for your current or former employer. If it’s a major employer, they likely have a public relations department to spin the story and more importantly create an ongoing stream of positive coverage that overwhelm the negative news about your case. Major employers also spend on advertising and corporate philanthropy to bolster their image. So the negative press from your claim, may be entirely cancelled out by what a companies efforts on advertising and public relations. Bluntly, major employers budget substantial sums to fight negative publicity.

Negative publicity may not change how your employer does business– Sometimes employees want employers to change how they do business. Maybe you can do that through litigation, but actions like collective bargaining and political organizing are the more effective in accomplishing those ends. But again, major employers already spend large sums of money on regular basis on the political process through lobbying and campaign contributions.

In short, employment law cases are about employees trying to correct harms done when their employers violate employment laws. While these harms can be newsworthy, they rarely garner media coverage. Even when they do, that media coverage usually doesn’t lead to substantial changes from employers without organized and sustained pressure. The potential bad publicity for the mistreatment of an individual employee is not going to lead to those changes in and of itself. An employee seeking justice, financial or otherwise, from mistreatment in the workplace is likely going to be in for relatively long-hail.

In Biestek v. Berryhill the Supreme Court upheld the partial denial of Social Security Disability Insurance (SSDI) benefits to a claimant based on the opinion of a vocational counselor that the employee could find work in the national economy. The Supreme Court upheld the denial of benefits despite the fact the vocational counselor would not disclose the data that supported her opinion and the ALJ refused claimant’s request for the counselor to reveal the data that formed her opinion.

What interested me in the case, in addition to the vocational rehabilitation issue, was the dissent authored by Justice Gorsuch that was joined by Justice Ginsburg. Viscerally I liked the powerful language of the Gorsuch dissent in a case where I disagreed with the result. After all in a SSDI case the government has the burden to prove the availability of work once a claimant proves impairment. I can’t imagine not being able not being able to evaluate the foundation an adverse opinion. (Particularly an opinion that concluded there was low-skill, light duty manufacturing work available during the Great Recession of the late 2000s/early 2010s)

But ultimately the majority relied on the very deferential “substantial evidence” standard in upholding the denial of benefits. The more I think about the case, I think Justice Sotomayor’s separate dissent was better reasoned, if more nuanced and less emotionally resonant than Gorsuch’s dissent. Nonetheless, I think there are some important takeaways from Biestek.

1. The war on SSDI continues — The Biestek decision indicates that appellate courts will be even more reluctant to reverse denials of benefits. The Biestek decision comes on the heels of anti-applicant legislation and administrative rule changes, rooted in elite consensus against SSDI, that began in the late Obama administration and have accelerated in the Trump administration.

The extreme deference to ALJs could be troublesome in the wake of the Lucia v. SEC decision. In that decision the Supreme Court held it was unconstitutional under the appointments clause to hire ALJs as civil service employees rather than have them appointed by the exectuvie branch. In the wake of the Lucia decision, the Trump administration has decided to change how ALJs are appointed. This has raised concerns that ALJs will be politicized and biased against applicants. The Biestek decision could give politicized ALJs a greenlight to deny benefits without fear of reversal.

2. There are some advantages for plaintiffs in proceedings governed by the rules of civil procedure. One advantage of administrative type hearings like SSDI are relaxed rules of evidence and procedure that can make it less costly to pursue a claim. But since the rules of civil procedure don’t apply in SSDI, an applicant can be denied benefits on evidence that wouldn’t pass muster in a civil proceeding.

Thankfully in Nebraska workers compensation, the rules of civil procedure apply (See NWCC Rule 4) and a plaintiff is free to investigate in detali the basis for an opinion made by a vocational counselor.

3. Confidentiality has run amuck in litigation — In Biestek, the ALJ agreed that a vocational counselor could claim confidentiality as a legitimate reason not to disclose the basis for their conclusion that the plaintiff could work. In that regard, Biestek is consistent with a push by corporate defendants to keep court papers and proceedings confidential. I recommend a recent article by Reuters about how confidentiality n litigation helped exacerbate the opioid crisis. I think corporate defendants abuse claims of confidentiality in the litigation process. The Biestek decision seems to implicitly approve these practrices

4. Biestek could be a good summary judgment case for plaintiffs — The Gorsuch dissent drew parallels between the substantial evidence standard used in administrative proceedings and the substantial evidence standard in summary judgment. But reading between the lines it seems the majority in Biestek believes the substantial evidence standard is a more relaxed evidentiary standard than is believed by Justice Gorsuch.

One study shows that rougly 90 percent of employment law cases are dismissed on summary judgement. Clarification from the Supreme Court that substantial evidence is a relatively relaxed evidentiary standard, could make federal judges less likely to grant summary judgment motions.

Workers' Compensation Watch

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Employees can’t count on worries over bad publicity to get a good outcome in a case against an employer

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