Many of the most costly cases in employment law are decided by juries. Although judges carefully instruct jury members in the finer points of law involved in their cases, juries are often swayed more by a desire for fairness than by a desire for technical legal correctness. And many experts agree that juries are notoriously pro-employee. Juries ask:

• Was this act by the employer fair to the employee? And if it was not, the jury asks:
• What can we do to remedy the situation?
• And sometimes, they get to ask a third question: How can we punish the employer so this won't happen again?

Say your company promises a 20-year employee something, then doesn't deliver. The employee sues. You say there was no contract, so you had no legal obligation. The employee says simply that he or she trusted the company and that its actions weren't fair.

You may be technically right, but with whom will the jury side? The deep-pockets employer who treats a long-term employee shabbily? Or the poor, long-suffering employee?

Who Is the Typical Jury Member?

Who will you be facing in the jury box? Not 12 corporate managers who think as you do.

More likely, at least several lower-level workers or retired workers—or worse, laid off workers—who are much more likely to sympathize with your employee than with you.

Operate in multiple states? That's a real compliance challenge, but with "The 50-50" (50 Employment Laws in 50 States); answers are at your fingertips. Wage/hour? Leave? Child labor? Discrimination? All there in easy-to-read chart form. Get more details.

What Does Fairness Mean to a Jury?

To avoid actions that generate lawsuits, think like a jury member—think fairness. When the jury asks "Was the employer fair?" you want their answer to be "Yes, it was."

Here's what jury members want to know about your treatment of your employee:

• Did the employee know what the employer expected of her?
• Did he know what consequences could result from his actions?
• Did the employer make her a promise? And deliver?
• Did a manager take action before finding out the facts?
• Was the action taken the same as was taken in similar situations in the past?
• Were the decision criteria fair?
• Were policies and rules followed?
• Was the action a surprise?
• Did the employee have a chance to explain?
• Did the manager or organization trick or deceive the employee in any way?
• Was any important information withheld?
• Did the employer "kick the employee while he was down"?
• Did the employer retaliate against an employee for doing something any employee should have the right to do?

Act with Consistency, Reasonableness, Equality

There are three legs on which fair treatment of employees rests: consistency, reasonableness, and equality. Here's what you need to know about each.

Be Consistent

Consistency means that for any given set of facts or circumstances, your actions toward similar employees are the same.

For example, if you suspend one employee for missing the third day in a row without calling in, but then don't suspend the next employee who fails to call by the third day, you're setting up an unfair situation. If the first employee turns around and complains that you did this because he or she is a member of a protected group, will you be able to support your decision? It won't be easy if you haven't been consistent.

One test of your consistency: What do you do when one of your "stars" fails? For example, does your top salesperson get the same discipline as the least successful salesperson?

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Be Reasonable

Reasonableness means that a reasonable, neutral observer would find your action within the bounds of normal behavior.

For example, for a minor infraction, did you discharge a long-time, loyal employee? "That doesn't seem fair" is what the jury will think, even if you and your lawyer are thinking "This is an employment-at-will firm, and we can fire whomever we want whenever we want."

Be Equal

Equal treatment is the most important part of being fair. It's at the root of many employee lawsuits.

Lawsuits alleging any form of discrimination are based on failure to treat employees equally. This includes overt discrimination, of course, but also other more subtle forms of discrimination, such as stereotyping, patronizing, and favoritism.

Equal Treatment Doesn't Mean 'Kid Gloves'

"Don't discriminate" doesn't mean "don't manage." You can—and must—take action against those who don't perform or who break the rules. You just can't take action because of one of the protected characteristics.

Equal Doesn't Mean the Same

Does "equal treatment" mean that all employees have to get the same raise, the same evaluation? No. You're likely to treat a 20-year employee differently than a 6-month employee, and that's OK.

In tomorrow's Advisor, the discrimination aspects of fairness, and an introduction to a very useful guide to employment laws in all the 50 states.

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