Attorney Lauren Scholnick on Common Law Protection and Wrongful Termination

Salt Lake City, UTLike many of her partners at Strindberg and Scholnick, LLC, became a Utahan by choice, moving here from her native Illinois in 1995 to clerk under Judge Gregory K. Orme at the Utah Court of Appeals. "We started the firm in January 2002," she says. "We do all sorts of employment law and labor law, everything involving labor except workers' compensation, although the La-Z-Boy case is sort of that."

Scholnick describes the La-Z-Boy case, Touchard v La-Z-Boy, first filed in 2004, as "sort of monumental for Utah workers in a bunch of ways. It's a wrongful termination case; most employees are protected from retaliation under state statute—they can't be fired, treated badly or demoted for using workers' compensation. In Utah, we didn't have any such protections under state statute, and up until La-Z-Boy there hadn't been a tort case establishing a protection from retaliation under common law."

The case centers around wrongful termination of workers at the La-Z-Boy recliner plant in Tremonton, Utah, who had filed for workers' compensation for work-related injuries. Scholnick says, "The plant had 1000 employees and almost all of them had had some sort of injury—the plant was not very mechanized, so there was a lot of heavy lifting of mattresses and so on, a lot of repetitive stapling and sewing, and a lot of repetitive stress injuries.

"La-Z-Boy was self insured, so it wasn't part of the state workers' compensation pool; they paid out of their own pocket. So they had a financial incentive to dissuade people from using those benefits. We knew it would be a class action, that was our intention, what we didn't want to do was invest a lot of time and money in the case and win at trial, then have La-Z-Boy appeal on grounds of no underlying cause.

"We wanted to resolve the issue of common law protection at the outset, so we basically said to La-Z-Boy, 'Don't you think we should resolve this early?'. So they filed to dismiss the claim; their motion to dismiss was heard by the federal District Court judge, who said that there was good chance for cause of action and that she'd ask the Utah Supreme Court for an advisory opinion. So it was sent over, and the Utah Supreme Court gave its opinion to the federal court in November 2006, establishing that all Utah workers cannot been fired for filing for or using workers' compensation benefits. This established the common law interpretation.

Scholnick filed for class certification on April 15. She says that the class will include all past La-Z-Boy employees who have been fired or constructively discharged: "We've established in discovery that it could be as many as 600 people.

"La-Z-Boy will have to file its opposition by June 11, we'll have to reply, and the judge will have to schedule a hearing, so we don't expect to hear until fall at the earliest. We have seven named plaintiffs, so we'll proceed with discovery regardless of whether the class is certified. It's a pattern and practice case, so anything applicable to the named plaintiffs will be applicable to the class.

"There are a few different aspects to the remedy we're seeking—the first is to reopen the workers' compensation claims for the people who were denied treatment, benefits, or payouts because they were discouraged or terminated. That's an equitable remedy that will require re-examination of the claims, and the judge could handle it in different ways.

"Because it's a wrongful termination case, we're entitled to tort remedies, so we were seeking back pay, reinstatement and back pay, or reinstatement and front pay. However, we just found out that La-Z-Boy is closing the plant in June, which makes reinstatement and front pay both impossible. So since La-Z-Boy has cut off front pay and reinstatement, what they'd be entitled to is back pay damages and punitive damages, as well as attorneys' fees and costs."

This is not the first wrongful termination case that Scholnick has handled, she says, "but to have such a blatant pattern and practice is unusual; it brings to light this bad act on the part of the employer. Some people were terminated for filing, others were dissuaded from filing, then when they had repeat injuries, they'd sometimes be fired.

"Sometimes La-Z-Boy had a 120-day return to work after injury policy. Even if they did get workers' compensation, the company would stall on treatments or put them on a very punitive alternate duty plan that would violate their work restrictions—if someone suffered from repetitive stress injuries, they'd assign them to jobs requiring fine motor skills, for example.

"Sometimes they made them come back to work the same day they were operated on, often under high narcotic pain medication. Other times they refused to transfer senior employees to other jobs that they could do; they just put them back on jobs they knew they couldn't do, so the employee would quit, or if an employee came back after costing La-Z-Boy money in workers' compensation, if they needed it again, they would fire them for bogus reasons—lying, faking a time card, etc.—to get rid of them. It's unbelievable."

Speaking of her own and her partners' motivation, Scholnick says, "I think we all got into law for similar reasons, and that's to use the law to make life better for average employees who are trying to put food on the table. It's kind of a moral reason to become a lawyer.

"That's especially true in Utah, where employers think they can get away with this kind of thing; making them accountable sort of motivates us. These La-Z-Boy employees are great people, some of them are injured for life and La-Z-Boy has never faced up to their responsibility, so that's what we're trying to make them accountable for."

Lauren Scholnick graduated from Stanford University in 1988 and received her JD from the University of Illinois College of Law in 1995. A founding member of Strindberg and Scholnick, LLC, she currently serves as on the Utah Legal Services' Board of Trustees and on the Utah Trial Lawyers Association Board of Governors and Executive Board. According to her firm biography, "Her one character flaw is that she is die-hard Chicago Cubs fan!"