“Because I am a plaintiffs’ attorney, people want me to fail and die,” says attorney Whitney Warner. At SHRM’s Annual Conference and Exposition in Orlando, Warner turned the other cheek and told HR managers what they can do to avoid lawsuits.
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Warner, who is a founding partner with the labor and employment law firm of Moody & Warner, P.C., Albuquerque, New Mexico, says that “almost every type of employment law case is preventable.”
First, says Warner, for me to take a case, there has to be tolerable merit to the employee’s claim; it has to have the ring of truth to it.
Employers Build Her Case for Her
Then, there is a laundry list of things employers do to build her case.
1. Give No Reason for Termination
Don’t rely on at will. “They’re firing me for an illegal reason that they are covering up.” Giving the reason after the claim is asserted can look fabricated, says Warner.
Even worse:
- The reason offered by the employer changes over time.
Even worse than that:
- The reason is contradicted by objective evidence.
Note, says Warner, that unemployment hearing testimony is a powerful part of her arsenal. She likes it when supervisors testify. They are often not prepped. She will ask, “Is there anything else?” and they will say “No,” because they are always in a hurry. Now she has limited the employer’s response to what that supervisor said.
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2. Fired for Performance But Got a Good Evaluation
People believe what they see in writing, so the reason for termination will look like pretext, says Warner.
Even worse:
- Nothing negative in the file ever.
Even worse than that:
Employer got a bonus or raise, too. In one case, the employer said the employee was a “complete failure,” but they gave a $25,000 bonus.
Even worse than that:
- Employer got a glowing letter of recommendation. (In one case, the employee was fired for supposed detail mistakes, but the VP had written “great with details.”)
3. The Timing Is Bad
That is, there was an internal protected complaint followed closely in time by termination. How long is “closely”? At 1 year, I’m not interested, says Warner. She is looking for weeks or same day.
4. Ignored Prior Notice of Legal Issue
The company had had prior complaints about the same issue or person. They knew, says Warner.
Even worse:
- Ignored legal information in exit interviews.
Q: Do you feel you were subjected to discrimination or hostile working conditions here?
A: Yes
You have to investigate this as an internal complaint, says Warner.
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5. Internal Investigation Was Superficial
This manifests itself in several ways, says Warner:
- You asked the harasser what happened and called it a day.
- The investigation took too long.
- The investigation was not documented.
- Relevant witnesses were not interviewed.
- No corrective action was taken.
- The company responded to other complaints more earnestly.
- The company failed to act because there was “nothing concrete.” (Your job is to reach a conclusion, says Warner.)
Even worse:
- Further offending the employee by the questions asked. (In one situation, the employee complained about being referred to by the N word. An investigator asked, “Do you use the N word at home?”)
- The investigation is focused on the complainant.
Even worse than that:
- There was no investigation at all.
- The company responded: “That’s just the way he is.”
6. Believed Employee Was Just Trying to Get in the Retaliation Bubble
“She’s only bringing up her complaint because she just got written up.” Why do employees wait to make a complaint? People will put up with a lot until it starts affecting their income and job security.
In tomorrow’s Advisor, the rest of Warner’s 14, plus an introduction to BLR’s all-things-HR-in-one-place website, HR.BLR.com®.