First impressions are important. But when it comes to preventing employment lawsuits, it’s typically the last impression that employees have at work that matters most.
“This is why 90% of people come to our office. It’s the way they’re treated on the way out the door,” said noted plaintiffs' attorney, Randy Freking, of Freking & Betz in Cincinnati, during last week's Labor & Employment Law Advanced Practices (LEAP) Symposium in Las Vegas, hosted by Business Daily and The HR Specialist.
are the biggest flashpoint for employment lawsuits, and it’s where supervisors and HR professionals seem to make the most mistakes—in both style and substance.
Freking advises employers to “treat people as you expect to be treated” during terminations. One example: escorting employees off the premises, a practice he sees as unnecessary in most cases and will only trigger resentment and litigation. (It may be necessary with IT people.)
He notes that juries will are quick to rule against companies that appear to act unjustly against the employee, even if the law is technically on the company’s side.
As Freking puts it, a lot of juries seem to live by the motto of “If it seems unfair, there must be something there.”
Terminations: The 6 biggest mistakes by managers and HR
During his LEAP presentation (“Termination Mistakes Employers Commit that Make My Job Easier”), he and fellow plaintiff attorney William Waldo of the Bononi Law Group in Los Angeles alerted HR professionals to their most common errors they're making in the termination process:
1. Incomplete or contradictory documentation
“My message to employers: If you’re going to have annual, make sure your supervisors are doing them honestly,” said Freking.
Plaintiffs’ attorneys like nothing more than seeing potential clients walk in the door with a stack of glowing reviews along with a sudden pink slip for “.” Such inconsistency makes it much easier for the employee to point to some sort of illegal discrimination or retaliation as the real reason for the firing.
This is especially true if there’s close timing between an employee’s “protected activity” (taking, filing a complaint, etc.) and the sudden adverse action taken against the worker.
2. Lack of
While it’s wise to do so, employers are not mandated by law to give employees feedback about their performance, or to alert employees to their work or behavior mistakes. Employees can typically be terminated at any time for any lawful reason.
“But juries have a mindset that warnings are required,” said Freking. “You’re just going to get into a lot of trouble if you fire people without progressive discipline.”
When employees are surprised by a termination, they’re more likely to sue. For that reason, make sure supervisors provide honest and regular feedback and evaluations to all employees. Make sure supervisors understand and follow your progressive discipline policy.
3. Failure to recognize length of service in terminations
Getting ready to fire an employee with 10+ years with the company? Better get your legal ducks in a row. Juries are much more likely to hand out generous verdicts to employees who put in decades of service and then are suddenly fired for “poor work.”
“It seems to me that there’s a direct correlation between the size of jury verdict and the length of service of the plaintiff,” said Freking. “Be very careful with employees with long tenures.”
Both Freking and fellow attorney Waldo noted that their offices only take on about 15% of the cases that potential clients bring to them. (“A plaintiff’s lawyer does not want to pursue cases that they ultimately cannot win or settle,” said Freking.) But both agreed that they’re much more likely to purse cases with long-tenured workers.
“If the employee has 20 or more years, we’ll find a way (to bring the case),” said Waldo.
4. No independent review of termination decisions
“Less than 1% of supervisors keep me in business,” said Freking. Many of the cases he files against companies are trigger by rouge supervisors are fire workers on their own. Neither HR or the executive know or care why the worker is jettisoned—and the reason is typically some sort of bias or retaliation.
That’s why HR should never rubber-stamp terminations. Some outsider—either HR or an executive group or consultant—should review every termination recommendation to make sure there isn’t any undercurrent of discrimination in the supervisor’s reasoning.
5. Calling a termination a ‘reduction in force’
Many employers try to avoid conflict by naming an employee’s departure a “reduction in force” when the true reason is something else. Such inconsistency and story-shifting, Freking says, is “a goldmine” for plaintiff’s lawyers.
“(Employers) would have been better off call it what it was in the first place,” he said.
6. Failing to be “fair” after the separation
Simple actions that employees perceive as unfair—even if they’re not “illegal”—will send ex-employees running to the courthouse. Example: severance pay.
“People expect severance pay in the same way they expect progressive discipline,” said Freking.
Plus, Freking says his law firm is more likely to pursue an employees’ case if the company ignores his firm’s initial request for information about the employee’s case.
“It’s the employers who blow us off that raise our antennas,” he said. The lesson: Respond quickly and politely to inquiries from plaintiffs’ attorneys.
Bonus tip: When defending a lawsuit against an ex-employee, don’t forget to review the person’s Facebook page and other public musings. Freking says he’s seen many employees who have sabotaged their own cases, such as the “disabled” worker who posted photos of his bowling championship.
For plaintiffs, he says, “nothing good ever comes from Facebook,” which is why he requires every client to immediately retire from Facebook if he takes their case.