Dark Side, Schmark Side

I disagree with the many employee-side attorneys (most of whom are great folks) who I’ve heard refer to employers and their attorneys as the “Dark Side.” I know why this is said. Employee-side attorneys get frustrated with bad tactics we sometimes (albeit repeatedly) observe from some opponents: the hiding of information, the game-playing (e.g. musical-chairs with decision-makers and reasons for termination), the deponents’ “I-can’t-recalls” and the periodic bald-faced lie. I see these things too.

However, I see these behaviors as the minority, and not the rule, from opposing counsel. Most employer attorneys who I deal with are reasonable and civil most of the time. Most of the employers believe in their own testimony (however logically-believable or not).

Now, I do believe that more employers engage in hiding, game-playing, omissions, and lying than do employees at this point in history. However, I do not see that state of affairs as attributable to employers living on the “dark side.” If a line were drawn between employers and employees, I believe there would be an equal number of people on both sides who are inclined to conduct selfish and sociopathic behaviors.

In my view, the problem with employers at present is that those open to behaving badly have the power to do it freely, with relatively little risk of repercussion, e.g. they currently face relaxed oversight and repercussions from federal agencies and courts. If the state of the employment law world were reversed, and the working world were 100% unionized with ironclad protections against job termination, I believe there would be a disproportionate amount of bad behavior on the employee side– several more people with attendance abuses, lazy performance, liberties with timecards, etc. And it would be the minority of people (in this example, a select few of the empowered employees) who would engage in most of the troublesome behaviors that hurt their systems the most.

The answer to this hypothetical employee-abuse strain of behavior– and the answer to the very real employer-abuse strain we presently face– is to put rules and rights in place (and observe those already in place), and enforce them.

It is not an answer to engage in rhetoric, such as calling employers and their lawyers the “dark side,” or calling employees and their lawyers “extortionists” and the like. These views vilify and oversimplify large classes of people as if their diverse behaviors (many of which are decent) could be boiled down to the core bad motives of a destructive few.

Perhaps most importantly, rhetoric about the “dark side” and the like over-promotes an outward fixation. As of late, people in our country are always on the attack against the other. There is less introspection or guilt about our own wrongs. The reality is, we all need to keep an eye on ourselves first and foremost, because we all have the instincts and emotions that incline us to engage in the very behaviors above that we oppose in others. We also have more control over ourselves than we do over “them.” And if we police and critique ourselves first, and them second, more of them will do the same.

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