Shownotes
Did you know, you CAN like your lawyer?
Whether you’re a sole proprietor, a CEO of a major corporation, or a medium-sized company owner, there are a lot of things you need to keep in mind to run your business smoothly. How well do you communicate with your employees? What steps do you take to ensure they are given equal opportunities? David Seserman, a successful Colorado civil trial attorney and the founding member of Seserman Law LLC, helps shed light on how businesses should handle their relationship with their employees. He believes that companies must provide equal opportunities among their subordinates. Highlighting the importance of proper communication and transparency in every organization, David gives advice on what businesses should do to prevent harassment from happening and elaborates on how attorneys can advocate for both the employer and employee’s rights and responsibilities.
—
Transparency and Employee Relationships with David Seserman
My name is David Seserman. I am a civil trial attorney with the law firm Seserman Law. I use the term civil trial attorney for a very specific reason. I consider myself a trial attorney and not a litigator. The difference is a litigator is pretty good at pushing paper, arguing things, but is a bit uncomfortable at trial. A trial attorney enjoys going to trial and the challenges that that raises. I’ll give you an example. The way you can tell the difference between the two is if you are at a settlement conference and you are talking about resolving the case and the other side says to you, “David, if we can’t resolve this and settle this case here and now, then we’re going to go to trial.” If that’s an opportunity, you’re a trial attorney. If that’s a threat, you’re a litigator.
We’re incredibly fortunate to have you on the podcast. I have my cohost, Meranda Vieyra. She’s with Denver Legal Marketing and we have David Seserman of Seserman Law. David, tell us a little bit about your business and who you serve.
As a trial lawyer, you have to focus your practice. Most of my practice is in the realm of employment and employee benefits litigation. My employment law practice is fairly straightforward: age discrimination, gender discrimination, breach of employment contract, misappropriation of trade secrets cases and matters like that. I expand that to employee benefits because I have a fairly strong background in ERISA, that is retirement benefits, health and welfare benefits, benefits of that nature. I consider myself more of an HR attorney because I cover the gamut. I have always carefully maintained a practice where I represent both management and individuals. I feel like that gives me a much more balanced perspective and allows me to counsel whoever it may be, whether it’s a C-Suite executive leaving a company or management looking at, “How do we deal with a situation where one of our employees just walked out with some trade secrets?” I can counsel them a little bit better because I understand the arguments that both sides will make.
For your practice, what’s your predominant geographic focus?
For the most part, it’s Colorado. I am licensed in Colorado. I don’t hold a license to practice law anywhere else. That being said, I have handled matters all over the United States. Sometimes you get the call that says, “We need you or want to hire you in this case.” It could be a court appearance in New Orleans or it could be in Dallas. It depends, but the predominant focus for me is localized. I try to stay very involved in the Colorado community and I try to concentrate my practice here because it’s home and it’s what I know best.
They don’t know you and they don’t know how long you’ve been in the law field. Tell us a little bit about what led you to be an attorney and a little bit of your background in law here in Colorado.
I had an undergraduate degree in finance and in management. I went into sales and I set records for the company that I was working for the first couple of years. I got moved into a basic level of sales management, then I had some creative ideas. I went to the senior management and said, “Out in the field, if you could package this with that, it would help us here and we could sell more product.” The response I got back from management was, “Your job is to produce and sell. That’s marketing. You’re in sales, you’re not in marketing.” I decided at that point, I wanted to use my mind a little more in business.
I always knew I’d return to school. I thought I’d probably get an MBA, but I decided as a lawyer, I’ll be able to use my mind a lot. That challenge would exist in law. I went to law school. Coming out of law school, I was 100% convinced I would be a business lawyer. I wanted to start with what the challenge was. I can always use my business background and become a business lawyer, but the challenge was going to be becoming a trial attorney. I’ve decided that’s where I’m going to start my career. Years later, I’m still doing it.
We’re all subject to the TV attorney shows and whatever goes on with those things. When you’re going to trial, what do you do to prepare mentally? Is there a typical organize process or steps that you do to lend confidence for when you arrive?
You have to become very myopic and focused just on the facts and law surrounding the case that you’re about to go to trial on. The first thing I do is I apologize to my wife and I apologize to anybody who’s going to be around me for the next few weeks because I know I will become unbearable. It’s reality. You have to have the myopic focus and so you’re not necessarily a pleasant person to go to a ballgame with or to have a casual conversation with. The reason is you have to focus on what it is you are doing.
You have to become a master of every fact in that case for trial because when a judge says to you, “Mr. Seserman, what about such and such?” you need to be able to respond on the spot. If you need a document, you need to be able to pull it out. It used to be pulled out of a box and give it to the witness. Now, it’s displayed typically on a screen of some sort, but you have to have access to that document. You have to know where it is. You have to know what it says. You have to know what a witness says and what it says in your deposition or you waive the right to ever bring that up again. You have to have mastery and focus.
Employment and employment matters are all over the news in Colorado and beyond in 2019. I pulled a statistic that I thought was super interesting as a business owner and also because I work with business lawyers. They say that small, medium-sized businesses face a 12% chance of unemployment claim. What do you think about that? Is that accurate? Is it more or is it less than what you’ve seen?
As a trial lawyer, you have to become very myopic and focused on the facts and law surrounding the case that you're about to go to trial on.
I’m surprised that the number is only 12%. In my experience, virtually every employer faces that kind of claim down the road. In the press, there are lots of employment claims. You can’t help but get online and read the news and not see some employment claim out there. People understand that, “I lost my job. I think I’m in trouble, I’m going to make a claim and maybe I’ll get some money for it.” I’m surprised it’s that low.
I was surprised. I thought it was high, but you’re right. You see it from a completely different perspective being that you see this from both sides, the business side and also the employee side. If I’m a Colorado employer, what are the top three mistakes that you see right now with regard to lawsuits of any sort regarding employment?
The first one is failure to communicate. The way that you can avoid most certainly employment lawsuits as management is to be transparent. When an employee doesn’t do his or her job to your expectations, it’s important that you communicate your expectations to that individual and not wait until a year later for the annual review where you then say, “The employee was doing a decent job this year and you don’t even criticize.” That’s the second thing. One is to communicate. The second one is to be honest and candid in those communications. Those would be the top two. The third would be to educate yourself on the law. Understand the rights you as a business owner have and the rights that your employees or contractors have.
When you communicate with the employee, how do you prove that you’ve had the conversation or do you need to take and do written communication records?
Unfortunately, you do need to document what you’ve done. If you don’t, then it becomes the classic, “He said, she said.” It’s always a good practice to internally document just like a physician. When a physician is performing a procedure, the physician is typically engaging in dialogue throughout the procedure because it’s being recorded and documented what it is she did as the physician in that case. As a business owner, there’s no downside whatsoever to having some level of documentation of who and what met. The second thing is as a manager, take advantage of the fact that you have multiple individuals on the management side. When there is a critical meeting with an employee, have at least two people there so that there’s less question about what was said and what was communicated. Having that second individual can be good in terms of, “Did I communicate this correctly?” Also, it stops the classic, “You said that. No, I didn’t” situation.
As you think about the components of the value of the business, part of it is policies and procedures. I would presume that job descriptions would fall in there somewhere. I’m a fast-growing company and I can hardly get people on board fast enough. Colorado’s economy is pretty good. What should that business owner be thinking about as they’re onboarding these people to try to take and streamline or alleviate this issue?
There are several things. What is it you want that person to do? What is that person’s job? You mentioned the job description. In employment law, a job description is becoming more and more critical and arguably mandatory at this point. If an employee has to be able to lift ten pounds repetitively to perform his or her job, if it’s in the job description, that’s going to help when the employee can’t perform the essential function of the job which is to repetitively lift. Surprisingly, in the gig economy where people work at home all the time, if it’s important that an individual be present in the office from 8 to 5 or whatever the hours are, it’s a good idea to put that in the job description. Surprisingly, I’ve seen a few situations where there’s a debate about whether showing up to work is an essential function of a job. That’s important. Finally, related to that is what about the hours? Is somebody exempt or non-exempt? What are the expectations that are on there?
For employers, what does exempt and non-exempt mean?
Fair Labor Standards Act is the law I’m referring to. There are state equivalents in almost every state, but it’s the idea of are you properly salaried and exempt from overtime or are you paid by the hour? Where that comes up is somebody is paid hourly, but they have access to emails on their cell phone. She is expected to check her emails at night. She’s working when she’s checking those emails, but she’s not being compensated for that. That can become a huge liability down the road when she terminates her relationship with a company and says, “I wasn’t paid for all the hours I worked.” Communicate expectations and have certain policies in place.
One of the things that we talked about before that makes your practice perhaps unique is that you’re on both sides between the employee and the employer. For some folks, they may take umbrage at the fact that you’re on one side or the other only. How do you see that both sides exposure is helping a business owner because of your exposure?
The reason I maintain what I call a balanced practice is it gives me an opportunity to understand both sides of the argument or both sides of the equation. I’m able to meet with a business owner and talk about, “Here are the arguments that I would make if I were on the plaintiff side of this, if I was representing your employee. These are the things you need to consider.” I bring credibility to that conversation because I’ve been on that side. It’s not just something they’d go, “We don’t know what you’re talking about.” That’s a large part of why I maintain a balanced practice.
It’s a good distinction. It’s like you’re on sell-side buy-side, both.
Employee Relationships: A balanced practice gives you an opportunity to understand both sides of the argument or both sides of the equation.
You brought up a unique example of someone being on their email at night after work. You see it from both sides. You see it from the executive side who’s being forced to answer emails at [9:00] PM. You also see it from the business owner’s side of, “Was that a requirement of the job?” I think to see both sides of the coin there is an interesting perspective on Colorado Employment Law.
I’m seeing a ton in the news with regard to discrimination. Just in Colorado, in Denver, the #MeToo, sexual harassment, all kinds of issues are rife for lawsuits. Can you shed any light on avoiding that?
I look at things proactively when it comes to legal services. Oftentimes, people don’t hire attorneys in time and then they face a lawsuit or a claim or something like that. Having a lawyer look over your employment agreement before you sign it or being a business owner and having your lawyer draft your contracts, not your assistant, all of these things proactively help your business in the long run. With regard to discrimination lawsuits in Colorado, do you have anything to add on how to prevent that if you possibly can?
You raised a lot of topics, but I’m going to try to answer your last question. What I’m about to say is not radical or new. It is important that to avoid any potential claims, especially discrimination claims, whether it’s age discrimination, gender or racial discrimination or #MeToo which is a form of gender harassment that you see in the news a lot. As management, you need to treat employees fairly, to give employees equal opportunities, not to discriminate, which is the same thing I would have told you ten years ago. There’s nothing new there, but there is a heightened sensitivity in everything. The danger I’ve seen with #MeToo, in particular, is where #MeToo is a bit different than let’s say your traditional gender discrimination case. It has the ability to reach back many years to make a claim.
In employment law, and I don’t want to get into the real specifics necessarily, but it’s become very clear that if you have a policy in place as management that says, “Employee, if you believe you are being treated improperly or unfairly, you must make a claim in a timely fashion. You must inform the management so that we, as management, are aware of this situation and have an opportunity to react. If you don’t do so in a timely fashion, you’re going to be barred from ever making that claim.” What #MeToo has expanded it to is the ability to say, “Eight years ago, I believe that my supervisor acted inappropriately. I, the victim, am not looking to claim any damages necessarily, but there is a situation that occurred eight years ago and this person should pay for it now.” From an overall perspective, I agree with that. You shouldn’t be able to get away with sexual harassment from eight years ago. However, it’s very difficult for a manager to defend himself or herself from that kind of claim.
What I have seen and what bothers me in #MeToo, in particular, is I have seen a lot of in particular male managers that are reluctant to find themselves alone with a female subordinate working one-on-one. They’re afraid that like, “Five years down the road, she may decide to leave for whatever reason. She’s going to claim that I inappropriately propositioned her or something of that nature that may impact my relationship with my significant other at that point, that may torpedo my career even though it may very well be false. I’m going to avoid that situation. I am not going to be alone with women.” That’s unacceptable because that means in that situation, a male manager is not going to mentor an absolutely 100% capable woman just because of her gender.
With that being said, I’m this male supervisor. I have an up and coming young employee that happens to be male or female either way and I’m reluctant. What can you do to take and bring that employee along and still manage to protect the firm that you work for?
If you are the male in that situation, you absolutely must give your female subordinate the opportunities, but be very aware of situations you put yourself in. For instance, if you’re on a business trip, perhaps you don’t want to stay in adjoining hotel rooms and go out drinking until [2:00] in the morning.
That’s the low IQ solution.
On the day-to-day high IQ, it’s difficult because traditional mentorship is a one-on-one relationship, one-on-one support. That has to be given there. You’ve got to watch your actions. As in this case, the senior male, you can’t be touchy-feely. If you naturally like to rub someone’s shoulders as it’s been in the news lately, then you just don’t do it. On the flip side, if you are the subordinate and you feel like you’re not getting mentored, bring it up in a non-average serial fashion. You don’t have to say, “I think I’ve been discriminated against. I’m going to bring a charge of discrimination against you because you’re not giving me an opportunity.” Bring it up in a situation where you say, “I feel like I’m not being given opportunities. Is there something wrong with my performance?” Maybe it’s subconscious, but the manager may be avoiding the situation without thinking about it.
Are there protocols or maybe a proactive lecture that a law firm like yours can provide that can help Colorado businesses to tackle this?
There is, but most of that lecture is going to boil down to communication. Just communicate your expectations in the working relationship. Keep an active dialogue. Work hard to create that active dialogue. Lots of companies don’t do that. If someone is not performing, the easiest thing to do is simply avoid that person. As an attorney and as a former managing partner of a large law firm, I...
