HR’s loose lips can sink your company’s defense

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 at a Chicago law firm, took FMLA leave after giving birth. While she was out, the executive committee decided to eliminate Makowski’s job because “she did not fit into our culture.”

The committee asked the firm’s HR director to run the decision by outside counsel. That attorney suggested they eliminate another employee’s job as well as Makowski’s. That way, they could label the event a “reduction in force.”

After Makowski was notified, she came to pack up her belongings. She ran into the HR director, who pulled Makowski aside and told her the firing was really due to her maternity leave. The HR director allegedly added that “it might be a good idea to speak with a lawyer” because this has happened to other employees.

So Makowski did. She sued for pregnancy discrimination and interference with her FMLA rights. So much for “parting gifts.”

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 and, therefore, did not create the liability.

Result: The court rejected the law firm’s defenses and sent the case to a jury trial. (Makowski v. SmithAmundsen LLC, 7th Cir.)

Lessons learned … without going to court

1. Watch what you say. You can 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. 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.

4. Do the right thing first. The HR director should have gone to the executive committee with her concerns prior to the termination. That’s how to best protect employees—and the organization.

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Author: Mindy Chapman is an attorney and presi­dent of Mindy Chapman & Associates LLC. She is a master trainer and co-author of the book, Case Dismissed! Taking Your ­Har­assment Prevention Train­ing to Trial. Sign up to receive her blog postings at www.BusinessManagementDaily.com.

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