Just cause: Employment litigator helps clients prevail, despite odds

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By Sheila Pursglove
Legal News

Employment law attorney Dan Swanson was drawn to this niche by chance more than by design.

In the 1980s, employment law was emerging as a specialty with advent of Title VII, the Elliott-Larsen Civil Rights Act and the Toussaint v. Blue Cross case – implied “just cause” employment contracts.

“Few attorneys were practicing in this area and employment litigation despite the increasing trend, and I saw an opportunity,” says Swanson, a senior shareholder at Sommers Schwartz in Southfield.

In an early case, Swanson represented a single mother, manager of a large medical practice of male doctors, who was fired without good cause after asserting her belief that the doctors were sexually discriminating against her.

“After winning a substantial verdict for her before a federal jury and then a couple of years later, obtaining a $2.5 million verdict in a breach of implied employment contract case, I decided this was an area of law where I could help real people and achieve success,” he says.

Swanson, whose clients include automotive manufacturers and suppliers, vocational schools, computer sales and services companies, and food distributors, specializes in employment litigation, including breach of employment contract, non-competition agreements, discrimination, whistleblower claims, sales representative commission disputes, Family & Medical Leave Act claims, and other employment-related actions, as well as representing individuals in severance negotiations.

At the start of his career, Swanson primarily represented employers; gradually his practice evolved to the point that he now mostly represents individuals.

“Most employment attorneys exclusively represent either one group or the other and frequently, they analyze a new matter without a good appreciation or knowledge about the other side’s viewpoint and strategy,” he notes.

By having the experience and opportunity to represent both employees and employers, Swanson has a broader perspective in evaluating cases, claims and defenses, determining an effective legal strategy and achieving the best possible result for the client.

“I enjoy the challenge of representing new and different clients regardless of whether they are an individual or employer,” he says. “Every case is different and presents a new and unique set of facts and issues.”

He finds it particularly rewarding to represent individuals in employment litigation who have prevailed, despite long odds. 

“Representing individuals is very different than representing employers that are typically knowledgeable and experienced about litigation,” he notes. “Many discharged employees are broke or suffering financially, are complete novices relative to the litigation process, and have little or no idea how to even find a competent attorney to represent them.”

Three particularly memorable cases include a mid-level executive fired when he advised his employer he was HIV positive in the course of seeking an FMLA medical leave; a woman in a staff position for more than 20 years at a major utility who was terminated and placed on mandatory retirement after taking a medical leave due to depression; and a middle school principal fired following a successful 20-year career after attempting suicide in the midst of a bout of depression and who sought a subsequent FMLA leave.

“Each of those cases resulted in substantial monetary settlements, but more importantly, each client obtained some measure of justice and gained the means to move forward with their lives,” Swanson says.

While the law surrounding discrimination has continued to develop and broaden, just cause employment litigation based upon the Toussaint decision has evaporated, he notes.

“Among the most significant advances in discrimination-related law has been the advent of sexual harassment and Title VII related retaliation claims,” he says. 

In addition, significant new employment laws have been enacted including the Americans With Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and Whistleblowers’ Protection Act (WPA), all of which have significantly broadened employee rights in the workplace.

According to Swanson, current “hot topics” in this field include disability and handicap discrimination, FMLA-related claims, and whistleblower actions either under the WPA statute or based on the common doctrine of violation of public policy.

“In the near term, the new hot topic will be the extension of protections under Title VII and the Elliott-Larsen Civil Rights Act to include the gay, lesbian and transgender communities,” he says.

A skilled negotiator, Swanson frequently achieves clients’ goals without the additional time and expense associated with litigation. Statistics overwhelmingly demonstrate that only a very small number of civil cases ever go to trial, and that civil cases are either dismissed (per summary disposition or summary judgment) or resolved, he notes.

“Without question, the best way to efficiently and effectively resolve most cases is by way of mediation,” he says. “I’m a big fan of mediation when the parties voluntarily and in good faith agree that it’s time to resolve a dispute. One of the keys to being successful attorney today is the ability to effectively represent a client in mediation.”

Typically, before mediation is likely to be effective, there must be some discovery, including exchanging of documents and taking key depositions.

“There are a good number of excellent mediators who are skilled at working with attorneys and clients in finding a way to settle their disputes and it’s critical to be able to identify the right mediator for your particular case,” he notes. “The trend toward resolving disputes by mediation is going to accelerate as the cost and time required to litigate cases increases.”

Swanson has shared his expertise on “The Today Show,” “Good Morning America,” as well as CNN Headline News and Fox Business and News Networks.

“Getting 15 seconds of fame from an interview by a national television reporter can initially be a real rush – at the same time, you can’t let it go to your head and lose sight of whether that publicity is going be effective in serving your client’s best interests,” he says. “As a result of my television experiences, I’ve much more respect for pundits like Jeff Toobin who have mastered the art of effectively communicating about legal matters on television.”

Current chairperson of the Labor and Employment Law Section of the State Bar of Michigan, in that job Swanson is focused on developing a strategic plan for the Section so that it can better serve its members. Currently, 50 percent of the Section’s membership is more than 50 years old, and overwhelming composed of white males; they will be retiring over the course of the next several years and the younger half of the membership who will come to lead the Section, is much more diverse based upon sex, race, ethnic group, and religion, Swanson notes.

“If the Section is going to continue to be successful, it must have a strategic plan focused on how it can more effectively reach out and better serve this group of younger and more diverse members,” he says.

Swanson knew from an early age that he was destined for law. A political junkie since his junior high days, he was a youthful volunteer on campaigns for candidates he felt were out to save the world – “or at least make it a little better,” he says. Almost all the political candidates were lawyers and with Swanson’s interest in politics, law seemed a good career path. 

“While I never got serious about pursuing politics – although I remain a very interested observer and sometime volunteer – practicing law matched my talents and desire to make a difference in people’s lives.”

Swanson earned both his undergrad and law degrees from the University of Michigan, where he met his future wife at a first year law school party.

“At U-M, I learned the world is a big place with lots of opportunities and populated by a lot of interesting, smart and talented people,” he says. “Perhaps the most startling revelation was that after working really hard as an undergraduate at U-M and getting good grades, I learned that all my peers at U-M Law School were all really smart and talented and that the competition was intense. What I enjoyed most was my friends and football – Bo Schembechler remains one of my heroes today.”

A Detroit native who grew up in Birmingham, Swanson has made his home in Bloomfield Township since 1984, with his wife, Leslie. When the couple wed in 1980, they lived in Rosedale Park in Detroit for four years, where their two children were born.

“I’m a proud Detroiter and Michigander and I’m confident the best is yet to come for the city and the state,” he says.

He has been a member of the Board of Directors for Cass Community Social Services in Detroit since 2010, serving as vice chairman in 2013 and as chairman last year. According to Swanson, this outstanding organization goes beyond providing temporary shelter for the homeless by helping people obtain the means and ability to do for themselves including finding gainful employment.

“My family and I have been given a lot and I’m dedicated in some small way to giving back to the community,” he says. “In the face of great adversity and against long odds, Cass makes a difference in people’s lives daily and it’s exciting to play a small role in that process.”

In his leisure time, Swanson enjoys golfing, biking, walking the dog a few miles each day, traveling, reading, and spending time at the family’s Torch Lake cottage.

“In the last few years as our family has grown, I’ve especially enjoyed our three grandchildren, who are a thrill a minute,” he says. “We’re looking forward to the arrival of the fourth grandchild in June. My family means everything and they are the proof of any success I have had in my life.”

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