The number one thing that makes a lawsuit attractive to a plaintiff’s lawyer? When no reason is given for a termination. In today’s Advisor, advice from the other side of the courtroom—plaintiff’s attorney Whitney Warner spills about the management mistakes she looks for in planning legal actions against companies like yours.
Warner, who is SPHR certified, is the founding partner of Moody and Warner PC in Albuquerque, New MEXICO. Her tips came at the SHRM Annual Conference and Exhibition, held recently in Las Vegas.
No Reason Given for Termination
Managers often say to employees who are being terminated, “You’re at will. We don’t have to give you a reason for firing you.” That’s a mistake, says Warner. It’s going to guarantee that the employee will bring a claim against you.
Why? Every person believes that he or she is at least meeting expectations, and most think that they are stars. So the firing is going to come as a shock. The employee is going to think, “If it were performance, they would have told me about it, besides, it can’t be because of my performance, because I’m a star.”
The only conclusion the fired employee can reach is that it must be because of an illegal reason (I’m a woman, I’m pregnant, I’m old, I’m a member of a protected class.) And so they call Warner.
Some HR managers believe they should say as little as possible. No, Warner says, tell all. If you list five things, I know I will have to refute five things.
So, says Warner, tell them what the reason is.
You know your managers could do a better job if they were trained, and now there’s a convenient and reasonable way to get it done—BLR’s Leadership Library at the online, 24/7, Employee Training Center. Get More Information.
Even Worse—The Reason Changes over Time
If the reason you give for the termination changes over time, I’m going to get you on that, Warner says. She often hears, “Well, now that you put it that way, it wasn’t really the budget …”
One way Warner often catches people is through unemployment hearing testimony. “I’m going to get that testimony,” she says. In one case, the unemployment testimony was that the 20-year employee was fired for taking a $1.98 discount that she wasn’t entitled to. The firing was 10 days after she had made a harassment complaint to management.
After we sued, the company said there was a “pattern” of such violations, but I had the unemployment testimony to show that they were making it up. Moral: Make sure your unemployment hearing representative is trained and that you know what was said at the hearing.
Even Worse—Your Reason Is Contradicted by Objective Evidence
One of my clients was fired for “poor attendance,” Warner says. “I pulled the computer logs and showed that my client only missed one day during the year in question.”
Another client was fired for “customer complaints” but there was no documentation to back it up. “Those are good cases for me,” she says.
Despaired of ever getting your managers and supervisors trained? It isn’t easy to fit it in—schedule-wise or budget-wise—but now there’s BLR’s Leadership Training for Managers and Supervisors. Train all your people, at their convenience, 24/7, for one standard fee. Get More Information.
Failed to Follow Your Own Policies
Another problem that Warner often capitalizes on is employers failing to follow their own policies. In one of her cases, Warner’s client, a caregiver in a residential care facility, had a bad thing happen from an outside third party. She was cornered by visiting family members and sexually assaulted with inappropriate touching.
The response of the supervisor was to pray about it. That was all.
When the client came back to work, the third party stalked her around the building, but the company still didn’t do anything. When I asked, “Did you know about this?” the manager said, “Yes.” “Why didn’t you do anything?” “I don’t know,” was the reply.
The facility tried to claim that they didn’t know this would happen, but there was evidence of a previous complaint about the same behavior. That case settled, said Warner.
Because of the way the company handled the case, I was sure they’d have no policies, but, in fact, they had great policies with very detailed step-by-step procedures. Maybe nobody knew about them? No, unbelievably, the managers had all been trained on the policies between the two incidents.
When you don’t follow policies and there are no consequences to the managers who don’t follow the policies, this appears as “utter indifference,” and that means punitive damages.
In tomorrow’s Advisor, more of Warner’s “mistakes that make her day,” plus an introduction to a 24/7 leadership training program that won’t break the bank.
Yeah, right… show your hand and provide instant ammunition to the opposing side to attack your case for terminating the employee. The patent answer is terminate defensibly correct, procedurally and legally compliant with minefield mapping beforehand, and make sure that in unemployment claims, nothing will pop up that would discredit your decision. In many cases, unlawful motives are alleged before the administrative hearing, not during. If you did it right and dutifully, nothing to worry about. She and her ilk will fish for the answer anyway. That’s what they’re supposed to do.
So many managers and HR managers think at-will is a cover all. I don’t really think I’ve ever seen a situation where an at-will termination was appropriate.
http://www.navigathr.com
Interesting that she provides this advice, yet she provides legal advice to employers in this state that BLATANTLY violate employment laws all the time.
Thank you for this highly informative passage. I’ve seen all these things happen and am amazed when it goes so poorly from a managerial perspective.
At-will terminations are kind of a catch-22–managers simply don’t fire people without having a reason. The reason may be legal (poor performance) or not (racism, sexism), but not stating a reason leads juries straight to the conclusion that the reason must have been an improper one.