Sorry. I’ll make it up to you today.


When this happened, you knew that I had to do some celebrating. Twice.

So, the fam and braved the long lines (during which my young children got quite a vocabulary lesson) and headed into Philadelphia on Thursday for the Philadelphia Eagles parade. Just us and a few million strangers.

But, football season is over. I’ve caught my breath. I’m back in employment lawyer blogger mode with a 3-in-1 post today.

Tomorrow, I’m off to testify before Philadelphia City Council.

How cool is this?

Last Wednesday, I received an email from the Office of Councilwoman Blondell Reynolds Brown, Majority Whip. That email contained an invitation to testify before the Philadelphia City Council Committee on Law and Government about a pending bill and resolution to amend the Philadelphia Home Rule Charter to require mandatory annual sexual harassment training for all City officers and employees.

Here are my remarks. I’m limited to two minutes, which is plenty of time for me to slip in a few typos. So, if you see any, please let me know.

The five-million-dollar comma?!?

Around this time last year, I blogged here about how a missing Oxford Comma in a Maine statute eviscerated an employer’s defense to a class wage-and-hour claim?

Well, that case just settled for $5,000,000!!!

The New York Times reports here that between last year’s stumble and last week’s settlement, the Maine legislature addressed the issue by swapping out commas for semicolons. And, the article also notes that in a statement on Friday night, John Bennett, president of Oakhurst Dairy, said the company “is pleased the dispute regarding overtime pay for delivery drivers has been resolved to the satisfaction of all parties.”

Must be nice to be pleased about paying out $5 million to resolve a wage-and-hour claim.

“Not a good fit.”

Do me a favor. Bite your tongue before using those words in a termination interview. (The comp claim may be cheaper than the defense of the subsequent discrimination claim.)

In Lockwood v. Coastal Health District 9-1 (opinion here), an unrepresented plaintiff — no lawyer — alleged that her former employer took her age and race into account when it terminated her employment. In support of her claim, the plaintiff claimed that she was handed a termination later and told that the company was firing her because “she was not a good fit.”

Indeed, as part of its discrimination defense, the employer argued that one of the reasons it fired the plaintiff was because she was not a good fit.


The plaintiff responded by merely noting that she had worked for the employer for five years.

Oh, I get it. If the plaintiff isn’t a good fit, why wait five years to cut the cord.

The Court got it too:

The Court is satisfied that Lockwood has responded to each legitimate nondiscriminatory reason offered by Coastal Health by sufficiently producing evidence to create a genuine issue of material fact regarding whether each stated reason was a pretext. While she cannot disagree with the reason, she has sufficiently called into question whether each stated reason was the real reason. 

As you may have gleaned from the quote, the employer offered some other more specific reasons for ending the plaintiff’s employment. However, the plaintiff was able to cast just enough doubt to create a jury questions about whether the employer’s specific reasons were legitimate or merely a pretext for discrimination.

All that aside, when you terminate an employee, it’s ok to articulate some specific reasons for ending her employment. Heck, it’s not just ok to do that, you should do that. Because an employee may interpret something wishy-washy like “not a good fit” as code for “you are firing me because of [insert protected class.]”


“Doing What’s Right – Not Just What’s Legal”
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