Special from the Advanced Employment Issues Symposium, Las Vegas
To avoid lawsuits, think like a plaintiffs’ attorney, says attorney Dan M. Forman. When the law firm evaluates your employee’s case, it is making an “investment decision.” Your policies and practiced need to discourage their interest.
Forman is a partner at the Los Angeles office of Carothers, DiSante & Freudenberger. His remarks came at BLR’s Advanced Employment Issues Symposium going on this week in Las Vegas.
Plaintiffs’ lawyers typically spend a lot of time vetting before undertaking representation of your employee. You’d like their conclusion to be: “This case would be a poor investment.”
One of the best ways to get that “poor investment” decision is to have an exit letter that clarifies the termination decision, says Forman.
Terminated employees often don’t have a good understanding of why they were fired, says Forman. They are thinking, “I did nothing wrong.” And that leads them to conclude that an illegal reason was the basis for the action. You can help prevent this with an exit letter. This document:
- Explains the reason for the termination
- Uses cold, hard facts (no show, no call; tardy X times in X days; position eliminated)
- Offers specific details
- Quotes the policy violated
- Describes the impact on coworkers and productivity
Give the employee a chance to comment or dispute, Forman says, and ask the employee to sign the document, or to indicate that he or she refused to sign.
If you can do this, Forman says, you will have set up your defense against a claim. Your ex-employee’s attorney won’t see much potential for a successful suit.
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Think Like a Jury
Who is on a jury? Twelve people you never want to meet, says Forman. And discrimination claims are likely to get in front a of a jury, he adds.
The employee advances an illegal reason for the termination, for instance,
I was fired because on my disability.”
The employee advances the real, legitimate reason, for example, poor performance.
Then the employee offers evidence of pretext (for example, a much better record than that of the person not terminated).
Now this is likely to get in front of a jury.
Talking to a Jury
When you talk to a jury, focus on the impact on other employees, not the impact on the business, says Forman. Especially with a big employer, juries don’t want to hear about productivity.
Who does the work when this employee is absent? What about the other employees who now can’t go home on time to be with their families, who are going fall behind in their work. Is this person’s behavior fair to the employees who follow the rules?
Don’t advance opinions—this employee has a “poor work ethic”—focus on the person’s productivity, says Forman.
Don’t use terms like “crazy.” First of all, you are not an expert in psychiatry, and second, the opposing counsel will hop on that with, “Oh, you knew my client had a disability.”
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Some Defenses that Can Be Helpful
Forman shares the following defenses that may apply to your situation and that will reduce the likelihood of a suit.
- Same category. When a person is replaced by someone else who is a member of the same protected category, that’s a defense.
- Same actor. If the same person who hired the person fired the person, it’s hard to show animus. Why would the person have been hired in the first place?
- Manager in same protected category. If the terminating manager is in the same protected category as the terminated employee, that weakens the claim.
- Manager has no knowledge. If the terminating manager was not aware of the protected status, that also weakens the case.
Forman Tip: Involve multiple managers in discharge decisions. The decision to discharge will be seen as a considered approach. Furthermore, there’s more likely to be someone available to testify years later if a claim is brought.
In tomorrow’s Advisor, managers who want to fire immediately, plus an introduction to the total training system, TrainingToday.