A Look Back at What Still Holds True in the Practice of Employment Law

On January 1, 2026, I will retire from the practice of law at Bradley. This is not goodbye to the law as I will turn my efforts to serving as a mediator in employment and business disputes. The legal profession has been good to me, and I hold my time at Bradley in great appreciation. The practice of labor and employment law was what I went to law school to do and has been my daily pursuit for 42-plus years. I am ready for the next chapter but before I turn that page, I want to reflect on a few things that I have learned along the way that I believe still hold true today.

If you want employees to meet your expectations, write them down.

Most every employer has a policy manual or handbook of some sort. Employment evaluations are another valuable written document. Sometimes I encounter an employer reluctant to “put it in writing” believing they are bound to act only that way or setting precedent they might not want to follow in the future. However, if you really want your employees to follow your guidance and policies, then putting them in writing is the most effective way to accomplish that goal and, more importantly, to hold employees accountable for their failure to do so. Besides, discretion can be maintained at various levels on matters that truly require discretion, such as discipline and discharge. Further, including the caveat that all policies are subject to change or amendment can preserve the necessary degree of discretion for future changes, but being committed to your policies and evaluations as an employer is a good thing.

You win more friends with fairness than you do with kindness.

Some of my favorite clients are great businesspeople with a soft spot for kindness. They want to take care of their employees, help them out in tough times, support them and their families and, on occasion, bend the rules in favor of the employee or do more than they know they should. Most of the time these unilateral acts go without issue but, occasionally, they come back to bite an employer when the employee takes advantage of the generosity. Worse yet is when the employee fails to reciprocate with a commitment to employment, then turns around and sues the employer after they have been accountable for their actions following unprecedented kindness or forgiveness by the employer. Being fair means applying the policies consistently and treating people fairly even when that may require “tough love.” Other employees will remember how another employee was treated, and if you bend the rules to be kind one time, then the next employee will think they are not being treated fairly if they are held to strict compliance. There can be mitigating factors, such as length of service, an employee’s individual circumstances, and work rule changes, but applying policies consistently is the best path.

Juries typically apply the rule of fairness, not necessarily the rule of law.

If you want the law to be strictly applied, then your best bet is to hope a strong motion for summary judgment is ruled upon favorably by the court. If you are going to trial, you can expect the jury to “try and understand the law” but then apply it in a way that it thinks is fair to the plaintiff-employee. As noted above in applying employment policies consistently, a jury may find that applying policies differently to different people is based on bias or retaliation. Why else would an employer treat a male employee differently than a female or a 60-year-old employee differently than a 30-year-old for the same violation or issue? It is a natural question, and if the employer does not have an objective reason for treating different employees differently for the same issue, the jury may infer that the reason was bias, and the law was violated in finding for the plaintiff-employee. Remember a jury wants to “hear and see what happened.” So, follow the three Ds: documentation, documentation, documentation.

Any good lawyer can tell you what the law is; the challenge is to help employers minimize the legal risk in their decision-making.

There a ton of smart people practicing law (and going to law school). I am lucky that I work with such people every day. When I started the Labor & Employment Practice Group at Bradley (then Boult Cummings) in 1988, it was “just me.” As time went by, I was lucky to find lawyers smarter than me (a low bar admittedly) who wanted to do what I did at a firm that fully supported an L&E practice and clients who needed our help, even if they did not know it yet. My belief has morphed some over the years as the law has become more complex such that even good lawyers sometimes trip over the myriads of employment laws. If lawyers can be tripped up, imagine what employers and human resources professionals feel like sometimes. The challenge is helping a client understand the law and what it means to their operations and/or decision process. We want to help employers accomplish their goals while understanding the risks certain decisions entail. Then, it is the employer’s decision and if it gets legally challenged, the collaborative process will have helped minimize the risks and allowed the client to understand the potential exposure. If a client tells me “I don’t care, I am going to do what I want to do -- the law be damned,” I say “Great, I can always use the work…” That usually causes a pause in the thought process.

To our clients and my Bradley colleagues, I say thank you for allowing me to work with you, to develop these rewarding relationships, and to make some great friends along the way. I also thank my family for supporting my career, which took me away from home so often that I could not have done what I did without their unquestioning understanding.