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Should you use an apology to head off employee lawsuit?

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in Discrimination and Harassment,Employment Law,Human Resources,Small Business Tax,Small Business Tax Deduction Strategies

When the threat of an employee lawsuit looms, most employers are advised to take a tough stance, fight the charges and never admit guilt.

But some attorneys now advocate that an often-overlooked option of simply saying "I'm sorry" in certain situations may actually soothe feelings, and even defuse legal action.

Case in point: An employer that defended several large age-discrimination cases refused to apologize after several employees wrote to the CEO seeking some solace for being laid off after 30 years. The company's law firm says it's convinced that if the CEO had apologized as requested, some of the lawsuits wouldn't have been filed. Two employees actually said so in their depositions.

However, apologies can backfire. Saying you're sorry could be seen by a jury as an admission of guilt.

So how can employers craft an "I'm sorry" without admitting fault? Very carefully, attorneys say. Here are three tips:

1. Don't lay blame. An apology that begins, "I apologize, but ...," is worse than no apology. Beginning with contrition but ending with justifications, excuses and blame will make things worse and provide more lawsuit ammunition.

2. Focus on undisputed points. To build a safe and sincere apology while still preserving your legal defense, identify and apologize for aspects of a situation you don't necessarily dispute.

Example: If an employee's upset at being passed over for a promotion, you could say, "I understand you feel we made a mistake in choosing Kevin instead of you for the position. I know it's upsetting to you and I'm sorry for that. We strive to make the best choice we can and feel we did so in this case. If it turns out we made a mistake, I apologize." Document your wording.

3. Discuss apologies with employment counsel and insurers. If you have employment practices liability insurance (EPLI), your policy may carry language barring you from taking any action that might "prejudice" defense of a claim.

A poorly crafted apology that hasn't been vetted by your attorney and insurance reps might cause that clause to come back to haunt you. 

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