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Team up for termination meetings; going solo could trigger lawsuit

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Here’s a bit of advice that may save you from a messy and needless lawsuit: When terminating an employee, never meet one-on-one. Instead, make sure at least two company representatives are present at all times.

Plus, warn everyone against speaking with the employee after the discharge unless someone else is present.

The reason? If you meet alone, you give the employee an opportunity to put words in your mouth—words that may end up as evidence against you in court.

Recent case: Laura Makowski worked in a law firm’s marketing department. She became pregnant, and announced she would take ma­­ternity leave beginning at the end of the year and running into early spring. She went on FMLA leave shortly before giving birth.

About that time, the firm’s management committee held a retreat to make plans for the new year—including how to cut a job in the marketing department. The firm concluded Makowski would be the one to go.

The committee then told the HR director to contact outside counsel for advice on how to handle the Makowski termination. She was also told to terminate another employee.

Makowski was then terminated by telephone in mid-February on the same day the other employee was cut.

Makowski came into the office that afternoon to collect her belongings. She ran into the HR director in the lobby.

While the director later denied making any statements, Makowski claimed she learned that her pregnancy leave was the real reason she was terminated. The director allegedly also told her that another woman had been terminated over a pregnancy, too, and that she should consult an attorney.

Finally, the HR director allegedly told her that outside counsel had suggested that instead of terminating the other employee for poor perform­ance, they should call the matter a reduction in force and justify both terminations that way.

Makowski sued, alleging that the comments were direct evidence of pregnancy discrimination and sex discrimination, plus FMLA violations.

The firm argued that since the HR director denied making the statements, they were nothing more than hearsay.

But the 7th Circuit Court of Appeals saw things differently. It concluded that because the HR director was involved in the termination (she sought outside counsel on behalf of the firm), anything she allegedly said would be an “admission against interest.” That’s an exception to the hearsay rule.

A jury will now decide whether the statements attributed to the HR director are true. If so, Makowski has powerful direct evidence of discrimination. (Makowski v. Smith­­Amundsen, et al., No. 10-3330, 7th Cir., 2011)

Final note: Remember that anything said by someone involved even indirectly in the termination decision may be used against an employer. That’s why it is crucial that no one talk to the employee directly without a witness. Don’t give the employee a chance to build a case.

Imagine how this case will play in front of a jury. The HR director will deny she made the statements, but they will be introduced nonetheless. If they sound plausible, who knows what weight an impressionable jury will give them?

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