Make it easy for the judge to rule in your favor

One of the judge’s hardest jobs at a trial is to decide what happened because each side usually has a different view of events. To win, you want to do things that make it easy for the judge to rule in your favor. One technique frequently used by lawyers, because we know a judge may later be deciding what happened, is using a confirming letter or email.

Assume you are at an unemployment hearing after an employee quits over the phone. The employee testifies that he was laid off, maybe because after he quit he learned the impact it had on eligibility for benefits. The HR Manager testifies that he quit. If we had a celestial video recorder, we could see the employee did quit. But both witnesses are credible and there is no other evidence of what happened.

It is difficult for the judge to rule in your favor in this situation. The scales of justice are equally balanced. But there is public policy that favors awarding benefits to the unemployed which acts as a gentle breeze blowing down on the employee’s side of the scale.

Now, what if you have a letter to offer into evidence that was sent certified mail return receipt requested right after the phone call. (Or an email – hopefully sent with a delivery receipt so you have proof of receipt) The letter, or email, says:

Dear Employee,

This confirms our telephone conversation this afternoon. You informed me that you were quitting effective immediately. We will process the necessary paperwork and mail your final check.

We wish you well.


HR Manager

The employee never responded to your letter. (They rarely do!)

Now, you have tilted the balance of the evidence way over to your side. By not responding to your letter, the employee essentially admitted that he quit. With this simple step, you have made it easy for the judge to rule in your favor.

How can I fire a pregnant employee without getting sued?

You can’t.   OK, that’s an overstatement; there are times it might make sense, but it is always a high-risk move.

What is the most important factor in whether an ex-employee files a lawsuit against an employer? Anger? Feeling unfairly treated? Need for money? Those are all way up there. But I think the top reason lawsuits are filed is that the ex-employee consults with a lawyer.

When you fire a pregnant employee, she is going to tell her co-workers, spouse, girlfriend or boyfriend, mother, father, grandparents, cousins, brothers and sisters-in-law, neighbors, best friends, casual friends, Facebook friends, acquaintance at the dog park, gym . . . you get the picture. EVERYONE she talks to will say “They can’t do that!” and urge her to see a lawyer.

Although “everyone” is wrong about whether you can fire a pregnant employee, there are a lot of laws that come into play. Some laws require favorable treatment such as time off when the employee is sick or disabled because of the pregnancy. Some laws prohibit treating the pregnant employee differently because of the pregnancy. For example, you cannot discharge an employee because she is pregnant.

To make matters worse, if the soon-to-be mother files a lawsuit, she is likely to find an audience with a very sympathetic jury and judge.

The likelihood she will consult with a lawyer at everyone’s urging, the complexity of the applicable laws. and the fact she will be a sympathetic plaintiff combine to make discharge a high-risk move.

This does not mean an employer’s hands are tied. There are steps to reduce you can take to reduce the risk of litigation. You could some things like making sure (a) you are aware of all applicable laws regarding pregnant employees and have documented proof of compliance with all these laws; (c) you have documented proof that the pregnant employee understood your expectations; (d) you have documented proof she not meeting your expectations; (e) you have documented proof that you gave her a meaningful opportunity to improve and the necessary tools to do so; (f) you notified her in writing that failure to meet expectations would result in discharge; (g) you use progressive discipline; and (h) you have documented proof that similarly-situated non-pregnant employees have been treated the same way as the pregnant employee.

Your goal is to build such an air-tight case that even an opposing lawyer or sympathetic juror or judge looking at the evidence feels compelled to rule in your favor. You are also trying to treat her in a way that almost agrees with the discharge decision. You would like her to feel so comfortable with the result and the overall process that her inner voice telling her that she was treated well is loud enough to drown out the voices that tell her she must see a lawyer.

Even under the best situation, though, I think discharging a pregnant employee will always be a high-risk move for employers.

Get the employee’s side of the story in his or her own words

An employee’s version of events resulting in discharge often change significantly over time. One cause of this change is likely because the employee’s interests change. When an employer is addressing performance or conduct issues before discharge, the employee’s primary interest is usually working with the employer to remain employed. When an employee files a lawsuit or other claim following discharge, the employee’s primary interest is beating the adversary – the employer.

Getting employees to put their version of events into writing when their primary interest is remaining employed makes it more likely you will get an accurate and honest description. And it will make it difficult for the employee to change their version when they become the employer’s adversary.

For example, assume that John complains to you that a co-worker, Robert, angrily yelled at him with a barrage of profanity when John asked Robert if he needed assistance. And also assume that what John says is absolutely true. You want to talk to Robert about the incident to get his version of what happened.

At this point, Robert is likely to act in ways consistent with his primary interest of staying employed. Sure, he may deny yelling or swearing at John. But there is a high probability that he may admit to the alleged behavior and try to justify his actions or appeal to you to give him another chance. If, at this point, Robert writes down what happened in his own words, the employer has the best chance it will ever have of getting the accurate and honest description of events from Robert’s perspective. And whatever his motivation for admitting the alleged behavior, it is still an admission that he did what John alleged.

Once you discharge Robert and he files a charge of discrimination, lawsuit, or a claim for unemployment benefits, his interest changes. Rather than trying to persuade you that his actions did not warrant discharge, he now wants to win. He has a strong interest in a version of events in which he did not swear or yell at John.

I cannot overemphasize the value to an employer of an early narrative in the employee’s own words. One of the key issues in any discharge case is proving what actually happened and proving that the motivation for the discharge was not an unlawful one. Having a written statement from the employee admitting to the misconduct or poor performance can convince an employee’s lawyer not to file a claim or lawsuit against the employer or, if a claim or lawsuit is filed, make it much more likely the employer will prevail.

There are several ways to get this type of description in the employee’s own words. I think the best way is for the employee to handwrite a statement. You could also have the employee type up a statement in a document or email. With either of these approaches, it is a good idea to include appropriate language and signature so that the statement is made under oath. And if you are worried that the employee’s own version may miss relevant issues, you can always ask the employee to address specific questions from you.

Another approach is to type up a statement or make detailed notes while interviewing the employee and then have the employee sign under oath that the statement or notes are accurate and complete. I think these approaches are not as powerful as a statement in the employee’s own words, but these approaches are better than not getting anything in writing from the employee. If you do not have the employee put things in his or her own words, I recommend that you also give the employee an opportunity to review the notes or statement before signing, to add information to make the document complete, to ask questions, or to revise the statement.