BulletProofBlog the blog on crisis communications

In this regular feature, Bulletproof interviews top plaintiffs' attorneys for their perspective on the crises likely to affect businesses in the near future. Today we talk to Anne C. Vladeck of New York' s Vladeck, Waldman, Elias & Engelhard, P.C., one of the best-known employment/labor plaintiffs' firms in the profession. Ms. Vladeck discussed a fundamental employment issue particularly relevant during deep, lingering downturns.

How does a recession, and particularly a recession as deep as the current one, affect your practice?

Anne Vladeck: Employers try to be clever. At a time like this, large reductions in force are expected by the public, and they' re expected internally. So what employers do - more so, I' d say, in this recession than in the past - is to hide discriminatory firings in the collective dismissal. They need to know that good plaintiffs' lawyers are on to that, even though they' re making us work a little harder.

One particularly cruel thing we' re seeing is that companies are firing seriously ill employees as part of mass layoffs. Employers, particularly those who are self-insured, have a dual motivation - they save money on benefits and rid themselves of employees who might need time off.

How do you identify client prospects in this context?

Anne Vladeck: We look behind the numbers and gather anecdotal information, documents, and financials to identify legitimate grievances. Also, importantly, a question we always ask is, are the targeted employees making money for the company? To use a law firm as an example, if a firm is firing bankruptcy attorneys and hiring mergers and acquisitions attorneys, we know something' s wrong because bankruptcy law is hot, M & A is not.  If the firm's Bankruptcy lawyers are older and the M&A lawyers are young, it can show that age, not economics, is the real driver.

Also, we can still look at percentages as a basis for a lawsuit despite the underlying economics. If, for example, a company only has four African-American employees, and they fire two of them - well, that' s a 50 percent reduction, and it will raise a red flag.

More broadly, if a whole division is eliminated, that may be explainable. Maybe a market dried up. Maybe a product line was discontinued. But if any appreciable percentage of the division remains employed, we' re going to want to know why. Cherry-picking is a tip-off.

Are there particular industries on your radar screen?

Anne Vladeck: It' s pretty much across the board in an economy like this one. But I might mention retail, financial services, and service industries and professions in particular.

Are there any new wrinkles these days on standard gender or race cases?

Anne Vladeck: One increasingly common thing we' re seeing is that companies will not fire a male who has young children, but they will fire single women or a woman with a gainfully employed spouse. Aside from the fact that more women are now primary breadwinners for their families, it' s discrimination under any circumstances.

Employers may think they' re being humane with this kind of discrimination. In fact, they' re breaking the law and paving yet another road to hell with good intentions.

Larry Smith is Senior Vice President of Levick Strategic Communications and a contributing author to Bulletproof Blog.