If you're ever hauled into court to testify in an employment lawsuit against your organization, what you say—and how you say it—can sink your defense … or help you win.
An employee's lawyer will gain points with a jury by shooting holes in your policies and practices. HR professionals are often the first line of defense against such attacks.
Don't forget: More than your credibility may be on trial. Under certain laws, including the FMLA and Fair Labor Standards Act, you could be held personally liable for some discriminatory acts against employees.
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The good news: You can ward off an opposing attorney's attempts to discredit you. First, it's important to know the weak points that he or she will seek to exploit.
Prepare yourself for any lawsuit by asking yourself these 10 questions:
1. How familiar are you with your policies and procedures?
A jury will view ignorance as uncaring and lax, at best … purposeful and negligent, at worst. How can you enforce policies that you don't even know yourself?
2. Documentation: Sloppy or complete?
Most discrimination cases aren't won with "smoking gun” evidence. They're proven circumstantially, with documents or statements made before the lawsuit is filed. You would never directly admit bias, but your documents—particularly emails—can help an employee's lawyer show discriminatory intent.
3. Performance appraisals: Precise or puffed up?
Performance reviews are often key evidence in employment cases. Inflated employee ratings have sunk many employers' cases. That's because past glowing appraisals can make it difficult to argue that poor performance led to discipline or a termination. At the least, they can make your credibility look shaky. Remind managers to always give realistic appraisals.
4. Are your statements consistent?
Cases that start with an employee's complaint filed with the EEOC or a state agency often require you to submit position statements or affidavits. You can bet the employee's attorney will review those statements and introduce them at trial, especially if your story has changed. Keep it consistent.
5. How good is your employment law knowledge?
Would you trust a brain surgeon who didn't stay current on developments in the field?
Well, juries expect—and the plaintiff's lawyer will encourage them to expect—that you and your company leaders are staying abreast of developments in employment law.
The Complete Compliance Guide to Federal & State Employment Law explains — in clear language — what your responsibilities are under each and every federal and state employment law. This invaluable library will keep you up-to-date on all your legal concerns. Learn More about the Sourcebook.
6. Do you track hiring rationale?
It's easy to answer, "Why did you hire the person you did?” But can you explain specifically why you rejected other candidates?
Too few rejection decisions are well documented, which makes it hard to recall the reasons later on. Juries may view this as "selective amnesia,” an attempt to cover up discrimination.
7. Does your story change over time?
Whenever a terminated employee can show that your reasons for making the decision changed midstream, your credibility is shot. Smart attorneys will argue that your reasons are false and were just excuses ("pretext”) for illegal discrimination.
8. Do you take complaints seriously?
Turning a blind eye to any complaints of unfairness or perceived illegal actions will kill your credibility. Statements like "Boys will be boys” or "I'm not a baby sitter” can jeopardize everything.
9. Did you 'paper' the employee's file?
The HR mantra is, "Document, document, document.” But a flurry of documentation after someone has been fired can look suspiciously like you're covering your backside for some reason.
Don't "paper” a file after the fact. Train supervisors to log the pros and cons of employees' performance and behavior as they occur.
10. Did you try to work with the employee before firing?
Juries are predisposed to sympathize with employees who have lost their jobs. An organization that fires without first trying to improve performance will appear insensitive and mean-spirited.
Conversely, if you really try to improve things and give enough warning before taking drastic action, you'll stand a much better chance of avoiding a lawsuit or winning in court.
Advice: Share this information with your organization's managers. Their testimony can make or break a lawsuit defense just as much as yours can.
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