Category: Employer Best practices

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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.

Sincerely,

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.

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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.

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Avoid the use of a “Probation Period”

In my last post, I talked about firing employees during their first 90-days. There is a danger employers need to be aware of when referring to this initial period as a “probation” period.

One way employers alter the “at-will” employment relationship is by an express or implied promise, often in a handbook, not to fire employees unless the employer has a good enough reason for doing so, usually called “good cause.” A court could use your use of a “probation period” as a promise, by implication, that once an employee gets beyond the “probation period,” he or she cannot be discharged unless the employer has “good cause.” (And, in fact, this is often what union contracts provide.)

Here is the reasoning that an employee’s lawyer would likely use to file a lawsuit. During the 90-day “probation period,” everyone agrees that the employee can be fired for any reason. Once the employee passes the “probation period,” though, the employee must have some greater rights than before passing through that period. Unlike while in the period, the employee now cannot be fired unless the employer’s reason is a good enough one. The existence of the “probation period” is, in effect, an implied promise not to fire employees who have completed the period absent good cause. As a result, the employee can file a lawsuit to have a judge or jury decide whether that reason was good enough to justify discharge or whether the employer wrongfully fired the employee without good cause.

There are counter arguments employers can make. But to reduce the risk of this becoming an issue in litigation, avoid having a “probation period” in your handbook and train supervisors not to refer to a any “probation period” in day-to-day language.

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Get the Whole Story

One of my favorite references to the Shirley Sherrod fiasco last week came from Peter Sagal, host of National Public Radio’s weekly radio broadcast “Wait, Wait, Don’t Tell Me.”  “Wait, Wait, Don’t Tell Me” is an entertaining quiz show based on the week’s news.   When Sagal was discussing  USDA Secretary Tom Vilsack’s firing of Sherrod based on his viewing a two-minute video segment from Sherrod’s  45-minute speech, Sagal quipped:

“This explains why Agriculture Secretary Tom Vilsack thinks that the Wizard of Oz is a black and white film about a farm girl in Kansas.”

Sagal’s comment made me think of some employers I’ve represented and the risks associated with firing someone without getting the employee’s side of the story.  First, the employer’s conclusions about what happened will often be wrong.  Second, if the employee later sues for discrimination or retaliation, the employer’s not getting the employee’s side of the story makes it look like the employer was acting out of a discriminatory or retaliatory motive.   The employee, now turned plaintiff, will argue that the employer did not get the employee’s side of the story because the truth did not matter — what was really motivating the discharge was the employee’s race, age, sex, protected activity, etc.

Employers getting the employee’s side of the story before taking any disciplinary action make better and safer decisions.