As a labor and employment lawyer representing employers for now
over thirty years, I have always been focused on the proactive and
preventative steps employers can and should take to avoid claims
and liability. Despite these efforts it seems we lawyers end up
doing more damage control. Through this damage control many lessons
are learned. With each matter I've always made an effort with
clients during the course of the case and certainly at the end to
talk about lessons learned. While they are numerous, and could be
the subject of a book on the topic, the following are a few of the
key lessons learned:
1. So you say you are an "At-Will"
employer. Then why does the proper disclaimer not
exist in your employment application, employee handbook, work rules
and other policies and procedures? I've heard many
times over the years, He or she was At-Will and we didn't have
to tell them why we fired them; or "My lawyer told me they
were At-Will and I didn't need a reason to fire them." If
you take the proper steps your employee will be At-Will and you
will have a better defense in a wrongful discharge claim made
against you. Employment At-Will doesn't relieve you of your
obligations under State/Federal Discrimination laws. Also, if you
don't give a reason for termination your former employee will
file a charge or get an attorney to get that answer.
2. Exactly what rule or policy did they violate?
With great regularity employees are terminated for violating
company policies or procedures, but when pressed at a deposition or
by their own lawyer to point to the language that they violated,
many employer witnesses have difficulty finding the exact rule or
policy. This is something plaintiff's lawyers, agencies
investigating claims filed by employees and hearing officers
handling unemployment compensation claims will want an
answer.
3. What you say will get you into trouble. Learn
to be judicious with your words and careful what you say. Nothing
is confidential and a slip of the tongue or an inappropriate
comment about someone's termination or other employment action
may be enough and has been in some cases enough to ruin an
otherwise good defense.
4. If it doesn't make sense to your lawyer, it's
not likely to make sense to a judge or jury. It is
important to be honest with yourself and recognize that your
emotion or personal stake in a matter may be driving it more than
logic or rational analysis of the circumstances. If you don't
heed this lesson learned you will be your own worst enemy.
5. Everyone is brave a year before trial. Of
course they were the worst employee you ever had, yes you gave them
nothing but excellent evaluations, your documents are awful, but
you're not paying them a dime and we are going to take this
case all the way. This seems to be many people's perspective a
year out from trial, but as depositions are taken, documents are
requested and exchanged, witnesses do a poor job in their
depositions, parties then get a reality check and the case that
looked great a year before trial doesn't look so good two
months before trial and it gets settled.
6. If you made a mistake - take ownership of it.
Many claims of discrimination or wrongful discharge involve no
malice, or intent intentional discrimination on the part of
employers but mistakes are made. Maybe someone didn't
understand a certain technical aspect of the Wage/Hour law, ERISA
requirements or some Affirmative Action requirement. Maybe they
didn't realize another employee engaged in the same conduct and
was not fired. If that is the case, work with your counsel to
create a win/win situation. Honesty and a quick resolution may be
the best remedy.
7. We will never settle despite being told by our lawyer
that we should. As an example, one case I was involved
with could have settled three months into the case for $10,000 but
"We did nothing wrong and we're not paying a dime."
Six months into the case it could have settled for $25,000 but,
"No we're not settling." Bad facts in depositions and
summary judgment is lost, case could settle for $60,000. Still the
response is "no". Judgment against the employer paid to
plaintiff $150,000. Attorneys' fees spent on the case, $75,000.
Lesson learned - have the courage to acknowledge we made a mistake
and it's only money but money well spent. $10,000 is a lot less
than $225,000. How many widgets do you need to sell to make
$225,000.
8. Document everything - Well not really.
Subjective written comments by management personnel in
discrimination investigations like "This is the worst case of
harassment I have seen" or disagreements by management
personnel as to someone's performance, and layoff analysis
without the protection of attorney/client privilege have all been
examples of documentation getting employers into trouble. If you
are willing to document something (especially e-mails), be sure it
is thoroughly read, thought out, reviewed by counsel and ask
yourself, "How would I feel if this was published in the
newspaper or presented in front of a judge or jury?"
9. Timing is everything. If an employee has made a
complaint of discrimination, did you really need to terminate them
three days, two weeks, a month after their complaint. Particularly
troublesome is when other individuals have engaged in similar
conduct and not been terminated but the only unique thing about
this employee is that they raised a complaint, called your hotline
or filed a charge with some State or Federal agency. Retaliation
claims are on the rise.
10. Do you understand the English language? The
classic example is firing employees for insubordination when in
fact, they have not been insubordinate. There are several cases
that have supported employee claims of defamation (false statements
against them) in which they were fired for insubordination. What
the employer meant to say was they had engaged in poor work
performance or didn't follow company policies or procedures.
They didn't bother to look up the word insubordination, which
means refusing to follow a direct order or refusing to submit to
the authority of a supervisor.
11. No good deed goes unpunished. We've all
heard this adage but when you have an employee who does not deserve
a paycheck and should have been fired long ago, the longer you keep
them the greater the likelihood that you will learn this lesson the
hard way and be saying to yourself, "We should have fired them
years ago."
12. Remember you hired the person you had to fire.
The lesson to be learned from this one is did you do a background
check? Did you have them do a drug screen? Did you have them fill
out an employment application? Were they really qualified for the
job? Did you have an evaluation system or even properly evaluate
them? To the extent you do these things properly you may not have
to learn this lesson the hard way.
In summary, every employer makes choices and decisions which have
consequences. They can be good consequences or bad. If bad, you
will have the opportunity to learn some of these lessons learned or
new ones. Make the choice to be proactive and take the preventative
cause of action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
