Warner is a partner with Moody & Warner, P.C., in Albuquerque, New Mexico. Her tips for fending off lawsuits came at the recent Society for Human Resource Management (SHRM) conference in Chicago.
HR managers tend to underestimate their liability, Warner says. They think about how long the employee has been out of work and believe that is the limit of their exposure. That's wrong, says Warner. In most of these cases, a very large portion of what employers pay is emotional distress and punitive damages.
Your defense attorney almost always says, "Don't worry, this is not a punitive damages case." But, says Warner, I'm going to turn it into one. Think about what the jury has to believe to find for your employee. The jury has to think you discriminated, that you didn't act appropriately, or that you retaliated.
Once they believe that, she says, it's not too much of a leap to get them to say, “We need to punish the company for this.”
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Warner says she likes it when a high-ranking manager was the harasser or took the retaliatory step. The higher the rank, the better for her client, she says.
Even Better (for plaintiff)—This Is Not the First Problem with this Manager
One school principal called his African-American administrator “my little brown sugar” and “my African Queen.” She complained. The superintendent called in the principal, who was a friend, and the principal said he was just joking around. Good enough, said the superintendent, but no more joking around.
Little did the superintendent know that in the principal's file was a last-chance warning for similar behavior. But Warner found it.
Even Better (for plaintiff)—The Manager Got Promoted and Got a Bonus
A grocery chain store director said to a 20-year employee, "Those pants are really painted on. Do you have to lie on the bed to get those pants on?" The employee complained, and the director said he was trying to get her to abide by the dress code. No action was taken and about 10 days later the employee was fired. Meanwhile, the director was promoted and got his usual bonus. Does that, asks Warner, sound like punitive damages?
Here's what I'm going to tell the jury, she says: "You rewarded him for this inappropriate behavior and she's out of work after 20 years. There's nothing bad in her file; he has a thick file full of complaints and problems. The jury does not like that."
Managers often say to employees who are being terminated, “You’re ‘at will’—we don’t have to give you a reason.” That's a mistake, says Warner. Every employee 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. "It can't be because of my performance, I'm a star. So it must be something illegal; otherwise they would tell me." It's best, advises Warner, to tell the employee what the reason is.
Even Better (for plaintiff)—Your Reason Is Readily Disproved with Objective Evidence
One of Warner’s clients was fired for poor attendance. She pulled the computer logs and showed that her client only missed one day during the year in question. Ball game.
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Another worker who complained of harassment was fired for taking an unauthorized discount of $1.98. To investigate that theft, the company had viewed surveillance tapes, interviewed all the checkers, and done a very thorough investigation. But when it came to investigating the employee's harassment complaint, they did very little. The appearance was that they cared more about their $1.98 than their employee's well-being.
In tomorrow's Advisor, more of Warner's "trade secrets" and an introduction to a policy program that will help you avoid her lawsuits.
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