The Most Expensive Risks We Face

Editor’s note: This article is part of a series. Click here for the previous article.

Gordon Graham here! Thanks for the feedback regarding my last article on “information risks” and the need for an independent investigation whenever the action or inaction of a law enforcement officers results in the death of an individual. Hopefully this concept will spread from Wisconsin to other states—including yours—and we can start to learn (and share) what really causes tragedies in law enforcement.

Not to digress (but if you have been reading the past 53 iterations of these writings you know I have a tendency to do just that), but 2022 has not had a good start in terms of line-of-duty deaths for public safety personnel. At the time of this writing, the Officer Down Memorial Page reports we have lost that we have lost 19 officers (not including those who died from COVID-19) and the National Fire Protection Association reported in late January on the deaths of eight firefighters in incidents ranging from the tragic Baltimore fire to the deaths of two Wisconsin firefighters when their apparatus was struck by a semi. Each of these incidents deserves a full investigation and report.

Bottom line (and I am almost done with this rambling) is we need to get some national, standardized approach—similar to NTSB investigations—to the investigative process into line-of-duty deaths, officer-involved shootings and other critical events. When these investigations are complete, they need to be shared so all interested parties (including public safety personnel) can learn what really happened so that such a tragedy never happens to them.

Enough of that. Let’s move on to Family Seven—the risks involved in Human Resources operations. Going all the way back to Family One, I identified “external” risks as the most difficult family of risks facing public safety personnel. There is little we can do to address terrorism, attacks on our personnel, criminal street gangs, pandemics, arsonists and other things over which we have little or no control.

HR risks are the opposite—they are “internal” risks—no less dangerous but much more under our control.

Family Seven is the most expensive family of risks we face. Many public safety agencies pay out more money in claims, settlements and verdicts involving HR issues with their own employees than they do for lawsuits and claims filed by non-employees.

The plaintiff lawyer knows there is a lot more money available if she/he can make it a class action lawsuit, rather than just a single plaintiff.

Here is my “nightmare” scenario for you to consider: You have a supervisor or manager who makes an incorrect employment law decision. Let’s choose one that is in the news regularly, a decision involving pregnancy. The involved employee contacts a lawyer. Here I go digressing again, but once when I drove from the Birmingham airport to Tuscaloosa for a presentation, I counted over 40 billboards on both sides of the interstate containing advertisements for plaintiff law firms. My point is that it’s pretty easy to find a lawyer who will take an employment law case (particularly involving a government agency) because government agencies make a lot of mistakes involving dealing with employees—and government is always seen as “the deep pocket.”

So imagine you are a fly on the wall of the lawyer’s office and she/he is listening to the aggrieved employee about his/her issues involving pregnancy. (By the way, I am not kidding when I use the “his” identifier in the last sentence—I am seeing more and more pregnancy cases involving fathers who feel they were not afforded the time off the law allows.)

The plaintiff lawyer recognizes there is some money to be made in representing a single plaintiff. But this same lawyer knows there is a lot more money available if she/he can make it a class action lawsuit, rather than just a single plaintiff.

“Have other people in your department been treated in the same illegal manner?” the lawyer asks the woman/man sitting on the other side of the desk. And if the client says, “Oh yes, they do that all the time”—BLAM—all of a sudden this becomes a class action lawsuit, where the plaintiff lawyer represents scores or hundreds (or thousands) of plaintiffs who were similarly situated.

My comments in the above paragraph make the process seem quick and easy—let me assure you it is not—but the return on investment for the clever plaintiff lawyer can be huge. I have seen verdicts in the millions of dollars in these types of cases. And that’s powerful motivation for them to try to make a bigger case out of one person’s claim.

But let’s suppose your agency prevails in the litigation. I have personal experience with bosses in public safety agencies who prevail in court and their attitude is “We won, we won, we won!” My response is, “Do you actually think you have won something, Chief? How much did it cost you in terms of lawyer fees, the costs of employees preparing for testimony and the time spent attending hearings and depositions? You may have won the case, but you paid out a ton of money to do so.”

There is a “fix” for this—and I will share it in my next article. Until then, please work safely.

TIMELY TAKEAWAY—Do you have policies in place to address ALL the federal and state laws and regulations governing conditions of employment?

Gordon Graham

GORDON GRAHAM is a 33-year veteran of law enforcement and the co-founder of Lexipol, where he serves on the current board of directors. Graham is a risk management expert and a practicing attorney who has presented a commonsense risk management approach to hundreds of thousands of public safety professionals around the world. Graham holds a master’s degree in Safety and Systems Management from University of Southern California and a Juris Doctorate from Western State University.

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