Whether it's on the way to the courthouse or at the indefatigable end-of-year gatherings, it's not uncommon for us to listen patiently to a cousin, brother-in-law, acquaintance, or even the cab driver himself tell the story of how he filed a labor lawsuit against his former employer and was successful.
With some variation in the plot - and this includes the personal experiences of each interlocutor in the dreaded pre-trial hearing - the conclusion of the conversation is usually the same: "but the boss always loses, doesn't he?"
After hearing this same question for many years, we decided to reflect on the outcome of the lawsuits: does the boss always lose?
We believe that "employers" should be divided into two groups: those who strive to comply with labor rules, adopting best practices on a daily basis, and those who effectively make no effort to follow the rules and treat labor claims as a predictable factor in their balance sheets.
For the second group, the natural answer to the question from the fellow taxi driver or that distant cousin is "yes". In that case, the boss will always lose, because he doesn't even expect to win. The labor claims and the settlements that will be reached in the course of the proceeding make up a global number in their accounts, and losses are already expected.
In the case of the first group, the answer couldn't be more relevant to our profession and that is "it depends". Often the question of losing or winning is not just based on business practices and their implementation in the employee's day-to-day life.
The Labor Courts judge with what they have in hand. In this case, the evidence in the record. Even if companies follow labor rules, have good practices, and ensure that each of them is correctly implemented in the workplace, the outcome of a labor claim is also directly related to the employer's ability to provide the judge with proof of all these elements.
There is little point, for example, in encouraging a safe environment in which every care is taken to avoid accidents at work, if, on the other hand, the company is unable to manage the provision of personal protective equipment (PPE) for its employees.
This leads us to consider that just as important as following labor rules is the company's ability to demonstrate, within the proceeding, that these rules have been complied with.
Organizing documents, formalizing contractual changes, collecting employee signatures on policies, and archiving these documents are practices that should be as valued as supervising overtime. These small adjustments can make a huge difference in a trial.
Investing in these management changes is a simple and effective way to reduce the exposure of employers who strive to comply with labor rules and avoid dissatisfaction with a judgment that does not reflect the practices adopted at the company.
Some newer discussions in the judiciary should be handled with more caution by the defending party. Unusual issues for labor judges, who are swamped with lawsuits on the same topics, can fall into the mass grave at the time of a trial or even in the course of a pre-trial hearing, and thus be judged in a legally incorrect manner.
In such cases, a good way to avoid unpleasant surprises at trial is to follow the proceedings closely, to be present in the judges' chambers to explain and clarify controverted points, and to focus on the evidence in the record - especially documentary evidence, which often goes unnoticed.
With these precautions, we can begin to change the general perception that "the boss always loses" and thus also change the direction of end-of-year conversations.