Season 3, Episode 10: “Don’t Let This Happen to You” – A Candid Conversation with Plaintiff’s Attorney Nina Pirrotti

Dan Schwartz: You know, if I had that on a magazine cover, I am putting that everywhere. So I love that - it is great. How have you been, Nina?

Nina Pirrotti: I’ve been great. This badass has been working hard and continues to fight the good fight, feeling now more than ever, fueled by where we are in this country to do this good work.

Dan Schwartz: Yeah, and we talk a lot, you and I have in the past of some of the political developments, and I think for this particular episode, we're gonna put that one aside, because in some ways we be chasing headlines - it feels. Like every day brings a new headline. I'm also not gonna talk about New Haven Pizza, as much as I love it. That's been getting all the headlines of late. Instead we're gonna switch gears and I thought it would be fun here to really get your perspective as a person who represents employees about some of the things that you see from employers. As employers, we can sometimes have our blinders on and not really see our blind spots of what we may or may not be doing wrong. And as listeners know, I mainly represent employers. So, I always think it's great to get different perspectives here. We may not always agree, we may differ and that's great - that's what makes this practice so fun. But I really think it's important to listen. Nina, are you game for that?

Nina Pirrotti: I am always game for this discussion. I have to tell you, but I'm jazzed by it because I would love, for circumstances to be such that I would be put out of business. I truly would love that. So, I think we should entitle this episode. “Don't let this Happen to You”.

Dan Schwartz: Alright. We'll see what we can do what we can do there. So why don't we talk first about policies because I think I've heard from you in the past that this is probably an area that you think is ripe for development.

So, in your experience, what are the most common inconsistencies that you end up seeing about how companies enforce those policies and how those inconsistencies might strengthen actually an employee's case.

Nina Pirrotti: You know it is really true – that a case that is otherwise a slam dunk for the employer can really be undone by inconsistent application of policies.

And I'll give you a couple of examples of anecdotes, just to put some meat on the bones and get an understanding of what we're talking about. I once had a client who worked for a, very well-known franchise that sells mostly donuts and she complained of sexual harassment and actually some of it was seen on video of her coworkers sexually harassing her.

Well, she was also seen on video taking donuts home with her and other products home with her at the end of the workday. So according to this particular franchise, that's a very serious offense. It's a policy violation that can include discipline up to and including termination. Of course, they terminated her.

And the best defense I had was the supervisor actually was taking home product. The coworkers were all taking home product. She takes home product. What is the difference in her scenario? Well, she's the only one who's complained about sexual harassment.

Another wonderful example is a client who was signing customer's names to these certain types of sheets that go along with his business when he's selling merchandise and you're not supposed to do that technically, you're supposed to have the customer sign the sheets. Okay, that's reasonable, except that our client had, at that point, developed cancer and was undergoing cancer treatment. So, the best comparator for him was how he was treated before he got cancer. Before he got cancer he regularly signed these sheets. Everyone knew about it. Nobody cared. After he got cancer, all of a sudden they were shocked to see that he was signing these sheets and they terminated him. And so, what we really are looking for when we're analyzing a case is if there is a clear policy violation.

In both the examples I gave to you, there were. Are they consistently applied across the board regardless of whether you are in a protected class or engaged in protected activity or not? And if so, great, and if not, you make that decision to disproportionately discipline our client at your peril.

Dan Schwartz: Yeah, I guess this probably isn't a good time to bring up the fact that when I worked at a pizza place, I would routinely take home pizzas at the end of my shift. To be clear, it was with the blessing of the supervisor. And look I was a teenager. Free pizza was about as good as it got on things.

That's really interesting though on the policies because I think you and I have probably seen written policies that are great in practice, but probably fail in their implementation.

Nina Pirrotti: This is the thing, and one of my most common responses when someone is filing a position statement or an answer in the CHRO, the Connecticut Commission of Human Rights and Opportunities, or the EEOC, is look at these robust, wonderful policies we have likely written by someone as brilliant as yourself Dan - look at these fabulous policies we have in place. My response is the policies are only as good as the paper they're written on, and if you are not following your wonderful policies, you really are doing your company a tremendous disservice, and you are doing your employees a tremendous disservice. I will tell you this, that all you need to do is one time, follow a policy to the letter when it comes to a rainmaker or a really important person in your company to send a message loud and clear - this is not tolerated, and if you do this kind of conduct, this is what happens to you. We don't care who you are, whether you're the person at the top of the food chain or at the bottom. I will just tell you, Dan, I once had a general counsel - she was so smart and she had a rainmaker, really top of the chain of his Fortune 500 company, engaged in sexual harassment with a low level subordinate, and she did an investigation. She did a credibility assessment. It was just he and she walking on the beach at a conference and she determined that our client was telling the truth and she terminated the rainmaker. I mean, what a message. Do you think that others who weren't as prominent or as valuable to the company are not gonna look at that and say, the, before the grace of God go, I, if I was thinking of harassing this person or stepping out of line, I think I'll think twice.

And that's what we really want here. We want for, especially for serious conduct like sexual harassment, sexual assault, but also discrimination, harassment on other protected classes. What we want is a zero-tolerance policy no matter who you are, because all it takes is one time. It's hard for the company that getting rid of somebody really good and valuable, but it really can have beneficial consequences in the long term.

Dan Schwartz: Yeah, I would say, firing the high performer who commits a policy violation is a really tough conversation to have. But I will say, I think more and more, particularly over the last, five or 10 years, I think employers have realized that they have to do it, not really just for that situation but for what you've described, which is sending a message to your entire workforce that this won't be tolerated because inevitably other employees have heard about it through whispers, through conversations. And if you don't take action, the rest of your employees are gonna know, Hey, this is tolerated. So I think that's a great point to bring up.

Nina Pirrotti: And Dan, I'll also say this, can you imagine how difficult it was for me to negotiate on behalf of this particular client when they did everything right? The employer they found out about it, they investigated it promptly, and I think this is gonna segue nicely into our next conversation, but they investigated it promptly.

They did everything they needed to do, and in the end, they terminated the wrongdoer. What do I do as the employment lawyer? It really did limit my options in negotiating for her.

Dan Schwartz: No that's a great point and I think it's a good segue into talking about complaint handling procedures because I think that's, those really tie in together. Which is what are some of the flaws that you see on how companies respond to, say, an initial employee complaint? How do they take what should be perhaps a straightforward situation and mess it up from there?

Nina Pirrotti: And botch it, right? So, this is and this is a subject that's near dear to my heart. I've spoken on this, I've written on this - investigations and the way they are done, something that I hype and we plaintiff's employment lawyers, hyper scrutinize when it comes to evaluating a case. So from the get go there needs to be a prompt and thoughtful response.

I once had a scenario where the prompt and thoughtful response to sexual harassment allegations, when the other person denied it and said, oh, she was sexually harassing me, was they suspended both employees without pay. We were even handed, we suspended both the person who alleged sexual harassment and the guy who denied it, without paying.

Didn't we do good? No, you did not do good. So, what you need to do is do prompt, thorough, thoughtful investigations. They start with interviewing the client and doing it in a way, Dan, that makes sure that the client feels safe and heard and not have the proverbial white light in the room. So, the question isn't, why didn't you bring this up to us sooner?

The question is, help me understand, how it is that we're here today. Can you walk me through that please? It's respectful, thoughtful interview of the client and then it's following of the employee, and then it's following through on who the complaining employee needs as witnesses and the documents that she needs too.

I can't tell you how often people come to me and say, I tried to share my cell phone with them. They said I'm not interested; where I tried to direct them to these three individuals and then we find out from these three individuals, no, no one ever got in touch with me. So, it's following through there on speaking with witnesses, on reviewing documents, on making credibility assessments.

Just because it's, he said, she said, you don't throw up your hands and say, oh can't do anything. You evaluate who has the motive to lie? What are the facts that we know about in the periphery are consistent with what she is saying. Does she appear in demeanor, in words and actions to be sincere and what she's bringing forth.

So, those are some of the things. And then of course, I'd love to talk to you about how you actually conduct your training before we even get to the complaint point. But let me also say this - I think you'd have to provide resources to the employee. It's so important that you raise whatever it is that you have out on the table if you have therapy available to the employee. If you have the opportunity for the employee to take a period of time off encouraging the employee, for example, to take some form of FMLA leave if it's warranted. If she's or he is suffering from some serious fallout for what has happened to them. And then keeping them informed as much as you can without violating confidentiality so they don't feel they're completely left in the dark while this whole process is going on.You let them know. Check in with them periodically. How are you doing? Listen, we're proceeding, we're interviewing witnesses. We're reviewing the documents you shared with us, and finally, making the precedents complaining feel heard, validated, respected. It's just so important. It's a recipe for success.

Dan Schwartz: Appreciate your perspective on that. And I think handling complaints really varies based on the size of the employer, the industry. There are some employers that are just more sophisticated and can handle that internally, and there are some employers who would be best off maybe relying on either an outside counsel or an outside HR person who might have the time to handle it.

And I will say, we've seen now more investigations that could be conducted virtually via Zoom teams, whatever. And so the days of we need to get someone in there. We need to talk to someone in person. You can do it now virtually. And we've also seen people now start to record these and use them as a transcript where you know the accuracy of it because you have a transcript.And that can really help on an investigation.

So let me go back to something you said earlier on the sort of supervisor training and I guess some of the gaps that we see there. So what have you seen on elements that might be missing from training for managers that might come back to haunt them later in a lawsuit?

Nina Pirrotti: Okay. I'm gonna, this is a great question, Dan, and I'm gonna illustrate the importance of this issue with a couple of examples. First, I just wanna start off by saying, obviously liability flows to the employer when the employer is on notice of the harm. Can't do it if they had no means of knowing about it, that is either actual notice or even constructive notice.

But if they don't know, they're not responsible. So, supervisors need to receive even an heightened level of training on how to address workplace issues, because once the supervisor is on notice. The employer begins to face liability, and that's where the danger lies. So, the training has to not only elevate about what constitutes unlawful discrimination or harassment, but what the supervisor must do about it once it's is on notice of it.

So, I had a case where a client was sexually assaulted in a parking lot right outside the premises of her employment, and she went to a supervisor and her supervisor said, I'm so sorry, but that parking lot is not owned by our company. And so therefore, even though you were assaulted right outside by a coworker, there's really nothing that we can do about it.

Okay? That was a seven-figure settlement, and it was just all bad training. The supervisor had the best of intentions. But he didn’t understand that if you're sexually harassed by a coworker and it occurs while you are working remotely at home, or it occurs while you encounter him at a bar where you're out with your friends or it occurs inside the premises that you work on, it is actionable.

It needs to be investigated. It needs to be an action needs to be taken. So that would be one example. I had another example. Where a client was sexually harassed and assaulted by her rainmaker boss, the big boss. She was a very low level employee, and the response was, we are so sorry this happened to you, and it's clear you're not gonna be comfortable here. And I really think what would be best is, let me give you the separation package. Look it's a generous one. You really, you know what? I think you need to just leave because this is not a good environment for you to be in. That was another huge settlement, and look at both of these examples, Dan. These supervisors weren't bad people.

They weren't out to get my client. They were just poorly informed, and I'm sorry, but in that scenario, there is no difference as far as I'm concerned. Now, they're also just countless other well-meaning supervisors who simply don't know that even if the survivor of sexual harassment is sexual assault particularly, but other forms of discrimination and harassment as well, even if the survivor asks for confidentiality.

If the supervisor is concerned for that person's safety or for the safety of other coworkers based upon the information that's being reported to them, they cannot honor that request. They need to escalate that claim. Yeah, and there are so many examples of supervisors saying, I was just doing what she asked me to do.

Well, if she's being stalked at work or he's being subjected to vicious racial epithet. That are being spewed by a coworker or supervisor, and you are not taking action. This is potentially problematic for the employer, even though again, the intention is good. So, what are the hallmarks of good training?

Okay, I'm a big believer in live sexual harassment training. It could even be live virtually. That's okay too. But the idea that an employer is gonna, an employee in the privacy of his own space or her own space by herself is gonna be on a monitor snd if she on the monitor, pressing A, B, and C, and that's gonna be effective in terms of sexual harassment training. That's just pure nonsense.

You need to have. Some sort of live training, ideally by a third party that's being hired. But if you can't afford that's not realistic by some, by your HR person. In the presence of all, let everyone participate from the CEO down to the person who's cleaning the offices at night so that you are sending a message.

This is how seriously we take it. Everybody is subject to these rules and we have no exceptions. The other thing I'll say is that bystander training is critically important. Think about it from the employer's perspective because I always love the win-wins here. Bystander training of course, is good for my client because it protects them, right? Others are coming forward and speaking the truth about what's happening to her because she's too afraid to, she's a single mom. She needs her job. She fears, she's beholden to this particular supervisor who's has her career in his hands, et cetera. A bystander comes forward. That's a wonderful thing for my client, but it's also fantastic for the employer because then you have all of these eyes and ears out there that are making sure that problems get nipped in the butt and we are brought to your attention, and it has a chilling effect. If everyone knows this company really values bystander training, it sends a message to the punitive wrongdoer that if she doesn't report it, you know Joe Smith, who's right next to me, might. So, I love that. I love the bystander training approach being emphasized, prompt, thorough, objective investigations, making the credibility assessments, picking investigators who are trained, how to speak to survivors in a respectful, thoughtful manner. Treating the survivor with respect. All these things are so important as hallmarks to good investigations and to good training for supervisors who might oversee those investigations.

Dan Schwartz: It's almost like you are an employment law attorney for companies, because I think a lot of that is things that we tend to preach, which is you can't, as an employer, sit on your hands on this and hope that your employees get it right. You have to set them up for success here and I normally have one of my slides on the trainings that we provide, copies the old New York City transit warning, which is if you see something, say something. I think that really applies to the workplace and that is everyone has an obligation to report this type of behavior.

And then the company, once it gets that report, it's on notice, but it has to take action about it. And if you combine those two, you're setting yourself up for some success rather than just putting your hands over your ears and hoping things go well.

Nina Pirrotti: Absolutely.

Dan Schwartz: Yeah. So we're gonna run out of time soon, but I do want to ask you in the time we have remaining on something else, because in some prior episodes on this podcast, we've been talking about accommodations for disabilities and the processes there.

And I think obviously there was a recent Second Circuit case that we've highlighted on our Employment Law Letter blog that talked about the need to provide accommodations even potentially in situations where an employee can already perform the essential functions of the job. So with that sort of setup, where do companies typically fall short in the interactive process for disability accommodations?

Nina Pirrotti: Dan, over the years I've like tracked trends in my own practice, and I will tell you that disability discrimination cases and FMLA interference, retaliation cases are among the most robust aspects of my practice and I think probably that's because too often employers get this wrong.

First of all, they confuse their obligations under the ADA, Americans with Disability Act and the state counterpart under the Connecticut Fair Employment Practice Act with their obligations for the FMLA. And I actually had an employer tell my employee who was seeking a reasonable accommodation for her disability – Well, you know what you have FMLA protection in place if you need it, you really don't need the interactive dialogue or for us to discuss accommodations with you. Again, it's just not being informed about your obligations and I obviously, Dan, the biggest pitfall for employers is not engaging in the interactive process.

So, the employee proposes something and the employer says, no way. I can't do that. She wants to work fully, remotely, forever. No, I can't do that. But then the employee comes back and says, what if we just do three months? I think I could do three months if the employer then still says no. You are getting to the point where you are actually showing that you're not engaging good faith in the process.

So even if an employer has to say no, because it's non-hardship, the employer has to come back with something else. Something else that addresses the employee's concern about the accommodation that they need. They have to show undue hardship and if the undue hardship is met, great. Interactive dialogue still requires them to try to brainstorm with the employee and come up with a solution.

And Dan, what does this accomplish? Aside from complying with the law. You have to engage in an interactive dialogue, but it also makes the employee feel heard. It makes the, even if you can't do that particular accommodation, it makes the employer feel heard, respected. It makes them maybe dig down and try to brainstorm with you and come up with solutions.

And at the end of the day, you want a happy employee who's able to work that case that says, you have to accommodate even if the employee can do the job without the accommodation, do you want the employee to do the job that and have to work so much harder or have to struggle so much more to do it because she doesn't have that accommodation in place.

You want the employee to have every resource you can reasonably have available to her to do her job well. You want her to succeed. So again, I see this as a win-win if it's done properly.

Dan Schwartz: Yeah. I've talked previously with clients and colleagues about the interactive process is probably best viewed like a tennis or as I've been playing recently, pickleball match, which is back and forth until you essentially win the point or get it right if you can't, if the conversation breaks down because you've proposed a reasonable accommodation as an employer and the employee rejects that, well fine, you've done your part, but you can't just give up on a round just because you don't like what's being proposed.

To think creatively and think more about it, so.

Nina Pirrotti: Absolutely.

Dan Schwartz: That's probably a good way to end here, our discussion. I know you and I can talk forever about this, but I really appreciate you coming on. If there are people who needed a plaintiff side employment lawyer, where can they find information about you?

Nina Pirrotti: I love it. They can Google me, but they could also just Google our firm because our firm is just staffed with some of the most talented lawyers in this area, in the country, in my opinion. So they could Google my law firm, Garrison, Levi, Epstein Fitzgerald, and Pirrotti and take it from there.

Dan Schwartz: Thanks again, Nina, for coming on and sharing your perspective on this podcast.

Really appreciate it. So that will wrap up another episode of From Lawyer to Employer. As always, we'd love to hear from you. If you have any questions or you have a topic that you'd like to hear us address, you can email me at dSchwartz@goodwin.com and feel free to leave us a comment on any of the sites where you get your podcast, whether it's Spotify, apple Podcasts, or more, we always like hearing from you, and that's a great way to let others know about our podcast.

So, thanks again for joining us and we hope you listen and subscribe to us as well. Take care.

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