by Sheila Pursglove
Legal News
Termination of employment is the “capital punishment” of the industrial world, notes Brian Kreucher, a management side labor and employment attorney at Howard and Howard, Royal Oak.
“A person’s livelihood is at stake,” he says. “So the legal and strategic decisions that face busy human resources professionals and in-house legal counsel when discharging employees can be complicated and prove costly if not correctly handled.”
Kreucher has spent nearly 25 years advising on HR issues and litigating employment cases.
“Over time you develop an intuition on how certain actions will unfold down the road if an employment situation is not handled well early on,” he says. “There is always some unpredictability that’s part of human nature. So when you start down the right path, you still have to keep an eye out for appropriate course corrections, which makes employment law continuously exciting.”
No two situations are alike, he adds, as each encompasses unique individuals, specific factual scenarios and emotions.
“Layer on top of that the ‘alphabet soup’ of all the interrelated employment laws and you have some pretty tricky waters to navigate,” he says. “You can’t prevent every ‘fire,’ but carefully analyzing the legal issues, weighing options and deciding on the right course of action means you won’t be throwing gas on the embers.”
When Kreucher started his legal career, a lot of litigation followed in the wake of the Michigan case of Toussaint v. Blue Cross, that analyzed the “at -will” versus discharge only “for cause” relationship between employers and employees – and as a result, almost all employment handbooks and applications now contain a statement that the employment relationship is at-will and that the handbook does not equate to a contract for employment.
“Fast forward almost 25 years and a large percentage of my time is spent advising clients on disability and accommodation related issues, background screening compliance, discrimination and harassment, whistle blowing, wage and hour compliance, new OFCCP requirements and social media,” he says.
Strategic enforcement plans by the U.S. Equal Employment Opportunity Commission (EEOC), and the heightened interest in non-union employers by the National Labor Relations Board (NLRB), among other constant changes, make this a very dynamic area of the law, he notes.
According to Kreucher, current “hot topics” include health care reform; the Department of Labor’s focus on the misclassification of non-exempt employees as exempt; employees vs. independent contractors and liability for misclassification; social media from a privacy perspective and whether employee comments are “protected activity” under federal labor law, even in a non-union setting; and Bring Your Own Device (BYOD) to work issues.
President Obama also recently signed Executive Order 11246, expanding nondiscrimination protections for certain workers on the basis of sexual orientation and gender identity.
“Locally, there are now over 30 Michigan municipalities and ordinances, which prohibit discrimination on the basis of sexual orientation and/or gender identity,” Kreucher notes. “The Office of Federal Contract Compliance also recently issued new regulations for federal contractors addressing the rights of veterans and disabled employees.”
Kreucher, whose clients range from small businesses to multinational Tier 1 automobile suppliers, one of the nation's largest security firms and Fortune 500 companies, recalls his most memorable jury trial, which took more than two weeks to try. It involved a Caucasian employee whose employment was terminated by Kreucher’s client, the city that employed the plaintiff. The city’s African-American mayor was also fighting a highly publicized recall at the time.
“The plaintiff alleged reverse race discrimination and we had an all white jury,” Kreucher says. “Needless to say, the trial environment was politically and racially charged.”
After deliberating for only about an hour, the jury returned a unanimous verdict for the city. One of the keys to winning was “humanizing” the defendant.
“I kept the ‘flashiness’ to a minimum during the trial by using a timeline on a 15-foot-long foam board throughout the trial to tie the testimony and all the events together,” Kreucher says. “I also made it a point to show the work environment caused by the plaintiff from the perspective of employees who reported to him. I think that the jury empathized with the employees and understood why the city had to end the plaintiff’s employment.”
Kreucher’s career trajectory began with Albion College’s Professional Management Program, followed by a transfer to the University of Michigan’s Business School in Ann Arbor where he earned his B.B.A., with distinction.
“I especially enjoyed the ‘real life’ Harvard Business School Case Studies, and the business law and human resources courses, which added to my interest in employment law,” he says.
In college he landed a job as a summer supervisor at General Motors’ Saginaw Steering Gear, where students were trained to fill in for vacationing “foremen” (production supervisors). For a college kid studying business, it was a great experience.
“I spent the day on the production floor working with the team to hit the numbers and quality goals. I learned to communicate with UAW folks who had been working at the plant for longer than I had been alive and plant managers and senior executives too,” he says. “Those jobs dried up for non-engineering students, but I was able to work my way into the labor relations department and saw the business from a different perspective.”
During one of his summers, contract negotiations began for a new labor agreement. “I was able to attend the bargaining sessions, which was a great experience,” he says.
This “real world” experience helped Kreucher land a clerkship at a management side labor and employment firm in downtown Detroit, where he worked throughout his third year at Wayne State University Law School.
“WSU was a great law school, especially for someone who wanted to focus on labor law,” he says. “It offered some wonderful ‘real world’ opportunities to gain legal experience while still a law student. I was able to do an internship with the Wayne County Prosecutor’s Office and try my first jury trial while still in law school.”
After graduating in 1990, Kreucher continued with the downtown law firm for more than two decades until moving his practice to Howard & Howard in the spring of 2013.
“It’s been a great partnership with Howard & Howard given my business background and the firm’s focus on ‘law for business,’” he notes.
Practicing labor and employment law was a natural choice given his background in business and labor relations.
“I’ve always enjoyed being part of a team, whether it was the football team or forensics team in high school,” he says. “Practicing employment law gives me the opportunity to team up with some great human resources professionals and in-house attorneys and work closely with them and the business folks to achieve their goals and business objectives. The number and complexity of employment laws that affect every business keeps increasing. I’m honored to have become a trusted advisor and counselor at this point in my career.”
As a faculty member of the Michigan Institution of Continuing Legal Education's Annual Labor & Employment Law Institute, he shares his knowledge and experience with legal and HR professionals.
“I also learn a lot from the folks who are ‘in the trenches’ every day by gaining a better understanding of the issues they face,” he says.
Kreucher and his wife Missy, also an attorney, attended Albion College at the same time but never met on campus – “Which is somewhat difficult given the size of the school,” he says. He was introduced to Missy by his brother Jon, when Missy and Jon were new attorneys at Howard & Howard in the early ‘90s.
“It only took me 20 some years to come full circle and also join Howard & Howard last year,” Kreucher says.
The couple has called Novi home for the past 20 years. Their daughters play volleyball, and the Kreuchers spend much of their free time attending volleyball tournaments. They also enjoy spending time at a family cabin built by Kreucher’s grandfather in the 1940s in the Les Cheneaux Islands in Michigan’s Upper Peninsula.
“We love spending time there – there’s nothing like rolling down the car windows and taking a deep breath while northbound on the Mackinac Bridge to help melt away the stress,” says Kreucher, whose license plate on the family’s “up north” vehicle is NRTHBND.
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