You know the mantra: To win lawsuits, you must document, document, document! When it comes to employees who sue you for discrimination after they have been disciplined, documentation means making careful, contemporaneous notes about alleged rule-breaking or other wrongdoing. It means and saving records for every disciplinary action.
You can’t just zealously document misdeeds by the employee you think will sue. You have to do it for everyone.
Recent case: Joezette worked in sales for Hill Dermaceuticals, a drug manufacturer. Hill’s primary customers are physicians, who prescribe its products to treat adult and pediatric scalp and skin diseases.
Joezette took two maternity leaves. When she returned to work after her second leave, she found thatwas unhappy with her sales performance.
Meanwhile, Hill rolled out a new employee requirement against selling competitive products. Joezette signed the acknowledgment.
A few months later, Joezette opened a spa offering manicures, waxing and facial services and sold bath products and lotions.
The website for the spa advertised that its organic skin-care products were free of parabens, a preservative added to Hill’s products. The website stated that parabens have been linked to breast cancer and reproductive problems.
Meanwhile, Joezette’s sales numbers at Hill continued to fall, as she spent time promoting her spa, including doing TV interviews. Eventually, Hill decided to terminate her for her poor sales performance and for opening a competing business.
She sued, alleging that she had been targeted for termination because of sex discrimination.
But Hill was ready. It showed the court detailed disciplinary records for Joezette—along with those of other employees who had been disciplined but not terminated for various infractions. Joezette was the only one who had directly entered into competition with her employer, selling competitive products while disparaging the content of Hill’s products and appearing in TV news interviews. (Hite v. Hill Dermaceuticals, No. 14-11230, 11th Cir., 2015)
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