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HR’s Loose Lips Can Sink Your Company’s Defense

by on
in Case In Point

Sometimes in HR, you know more than you want to know. But as this new court ruling shows, sharing inside information with an employee isn’t a smart move … for your employer or your career.

Case in Point: Laura Makowski, the marketing director for a Chicago law firm, took maternity leave under the Family and Medical Leave Act (FMLA). While she was out, the executive committee decided to eliminate Makowski’s position because "she did not fit into our culture."

The executive committee asked the firm’s HR director to run the decision by outside counsel. The outside attorney suggested they not only eliminate Makowski’s position but also another employee’s job, too. That way, they could label the event a “reduction in force.”

After Makowski was told of her termination, she came into the office to pack up her belongings. She ran into the HR director in the office lobby. The HR director pulled Makowski aside and shared a little secret, telling her the firing was really due to her pregnancy and maternity leave. The HR director allegedly added that "it might be a good idea to speak with a lawyer [as there] might be a possibility of a class action" because this has happened to other employees.

So Makowski did. Thanks for the tip off. Makowski sued for pregnancy discrimination and retaliation under Title VII of the Civil Rights Act and interference with her FMLA rights. So much for “parting gifts.”

What happened next? The HR director denied making the statement to Makowski. Even if she did, the employer argued, the statement would be “hearsay” evidence and not allowed in court. Makowski also asserted that she was not the decision-maker so she wasn’t involved in any of the allegations and, therefore, did not create the liability. The law firm also argued that Makowski was fired because no one liked working with her.

Result: The lower court ruled in favor of the law firm. But the appellate court reversed, rejecting the law firm’s defenses and sending the case to a jury to decide the truth. (Makowski v.  SmithAmundsen  LLC, 7th Cir.,11/9/11)

3 Lessons Learned…Without Going to Court

1. Watch what you say. It can and will be used against you in a court of law. You may be viewed as an agent of your employer and anything you say could be characterized as a party-admission.

2. Watch who you throw under the bus. Eliminating two positions at once does not necessarily create a legitimate reduction-in-force. That’s especially true if one employee is on maternity leave and the other was having performance problems, as in this case. This RIF smelled fishy.

3.  Watch out for “I didn’t do the firing” excuses. You don’t have to conduct the termination to create the liability. In this case, the court said the HR director was involved in the lawsuit because she sought an outside legal review and her general duties included actions related to the decision-making and compliance with federal anti-discrimination laws. She did not have to actually do the dirty deed to be a cause of the employee’s claims.

4. Do the right thing first. HR has a responsibility to guide management to do the right thing first and prevent illegal behavior from occurring in the workplace. The director of HR should have immediately gone to the executive committee with her concerns prior to any employment action being taken. That’s how to best protect employees. The HR professional did not go about this situation in the right way and it resulted in many jobs lost, a lawsuit and bad press.

{ 7 comments᰾ read them below or add one }

Chester Scrapps February 12, 2012 at 10:56 am

I was just teasing you about the g.a.y thing. Your response was very thoughtful, and I do appreciate your sensitivity.

I still prefer my version of number 4 to yours. At least you could have managed to insert _jackass_ at least once :)

hope I made you smile.

Reply

Mindy January 6, 2012 at 3:41 pm

Thank you all for your comments. I appreciate the time each one of you took to write in.

First, I want to clarify my Case-in-Point blog message. HR has a responsibility to guide management to do the right thing first and prevent illegal behavior from occurring in the workplace. The director of HR should have initially gone to the executive committee with her concerns prior to any employment action being taken. That’s how to best protect employees. I’m sure everyone agrees that preventive action is a best practice rather than passively letting some allegedly illegal decisions be made and acted upon.The HR Professional did not go about this situation in the right and professional way and it resulted in many jobs lost, a lawsuit and bad press…and a controversial blog.

Second, I never edit out the word “gay.” Please see numerous CIP blogs over the years where that word is used. It appears our back-end blog software may have done this for some reason. Not sure why. Gay is not an offensive term and either are any of the other protected classes which I reference frequently from court decisions.

Again, thank you all for sharing your thoughts. Based on your valuable comments, I have added a #4 point above:

Best regards always,
Mindy

Reply

Kevin January 6, 2012 at 10:02 am

I agree with Chester. When things like this happen people wonder where our morals have gone. I hope because of the egregious actions of the company that they were fined severely and made an example of. I am amazed that illegal actions would be encouraged. If it was the individual that committed something illegal I bet HR couldn’t find a way severe enough to punish and make an example of the employee.

Like Chester, I will be watching closely at future comments.

Reply

Chester Scrapps January 5, 2012 at 5:59 pm

In my original text, the word G-A-Y was automatically changed to ***.
Is that offensive? requiring automatic censorship?

I guess that means I am inherently offensive.

Reply

Chester Scrapps January 5, 2012 at 5:52 pm

Sarah –
I was not aware that you were expressing a similar sentiment at the same time I was writing. We apparently had the same knee-jerk reaction.

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Chester Scrapps January 5, 2012 at 5:43 pm

“After Makowski was told of her termination … the HR director … shared a little secret, telling her the firing was really due to her pregnancy and maternity leave.”

It is not ok to terminate someone because they have reproduced. I am gay and do not ever want to have kids. If anyone prefers not to have co-workers that chatter endlessly about their kids, IT IS ME, but I understand and respect the fact that I am not the only person on this planet.

I know that it is NOT RIGHT to terminate an employee because she becomes pregnant.

The HR director knew it was wrong as well! She should have blown the whistle rather than participate in the firing of a 2nd employee to cover up the firm’s sins.

Please add a last line to your numbered list of lessons learned:
#4. Don’t be a jackass. If you discriminate against the people in your workplace, you are a jackass. Not everyone around you is an “extra” cast to play in the movie being filmed entirely about you. If you don’t agree, at least treat the extras with respect and dignity.

Reply

Chester Scrapps January 5, 2012 at 5:10 pm

So you’re basically telling HR employees not to do the right thing by telling employees that they’re being fired ILLEGALLY? Seriously? I understand that this is a blog about saving face for companies, but I find it hard to believe that you are actually going to ENCOURAGE Human Resources professionals to “keep their mouths shut” when the company they are working for does something illegal … How could you sleep at night, knowing that the company you work for has fired a woman simply for having a child? What you’re saying here is that even though the company DID fire this woman for having a child, that’s okay – that it’s NOT okay to tell the ex-employee that what the company did is illegal. I am floored, and I will definitely keep this in mind when reading these blogs in the future. Yikes. Pretty scary!

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