Warner, who has shared some of her secrets with our readers before [Go here for other secrets], details five things that beg her to file a lawsuit. Warner is the founding partner of Moody and Warner PC in Albuquerque, New Mexico. Her tips came at the SHRM Annual Conference and Exhibition, held recently in Las Vegas.

1. Timing is Bad

When there's an internal protected complaint followed closely in time by termination, that's pretty easy for a plaintiffs' attorney to exploit.
How long is long enough to wait after an internal protected complaint? Wait until either:

• An undeniable, verifiable reason for termination arises, or
• The complaint is forgotten. (If you are still thinking about it, you haven't waited long enough, says Warner.)

2. Internal Investigation Was Superficial

The problems Warner sees most often with investigations are:

• The employer just asked the harasser what happened and called it a day
• The investigations took too long
• The investigation was not documented
• No feedback was given to the complaining employee
• Relevant witnesses were not interviewed
• No corrective action was taken (especially a problem if the conduct is admitted)
• The employer responded to other complaints more earnestly (especially bad if the company does a full-blown investigation against the complainer while doing a cursory investigation of his or her complaint)

Even worse—No Investigation

Of course, it's worse if there's no investigation at all, says Warner. Or of the employer's response is a dismissive "Oh, that's just the way he is."

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3. EEOC Response Not Well Done

One of the employer mistakes that "makes my day" is a casual response to the EEOC, says Warner. "I'll get all the EEOC documents at the beginning of the case, and I'Il be watching carefully. If anything comes up in testimony that contradicts what you told the EEOC, I'll pounce."

Typical problems Warner sees:

• The charge is not investigated at all. This doesn't look good, says Warner.
• The investigation is too cursory. A related problem is giving short shrift to the EEOC, for example, leaving your response at, "We have a policy and we didn't discriminate." Put some meat on it, Warner says.
• Statements turn out to be not quite right. For example, employer alleges a "pattern" of absence or "extensive" violations of the absence policy when the company's records show two absences.
• EEOC response fails to refute the conduct. For example, says Warner, say that the employee complained to the EEOC that she was harassed over many months. And then I look at the company's response to the EEOC and it doesn't say, "It didn't happen. It wasn't severe and pervasive. We haven't violated the law." You have to say that, Warner says. "Put that in your response and make me prove my case."
• Even Worse –Your Response Insults EEOC! For example, in your rebuttal letter, you say, "I don't know how your agency could arrive at this finding, your investigation was all wrong, you didn't talk to the right people."
• You gave phone numbers to EEOC.  EEOC asks for contact information, but if you don't give it, they typically won't push, Warner says. They rarely contact individual employees. "But if you give them contact information, guess what, I'm going to use it. I'm going to call all those people. I'll ask them, ‘Might you have been a victim?' So use initials and give demographic information only. Don't include address and phone numbers."

4. Employer Issues a Gag Order

Employers may be tempted to issue a statement such as, "Jane has filed an EEOC charge and you are not to talk to her or her attorney. You must report any contact to management."

Or else what? Warner asks. Your gag order implies adverse action for violating the directive. Employees think they are going to be fired if they disobey. Says Warner, I will have this e-mail in big print. I'll ask, Why did you send this e-mail? People have a legitimate right to bring a concern. You wouldn't retaliate, would you? So what are you trying to hide?"

Bottom line, the gag order looks like witness intimidation. You're "interfering with an investigation." That will get the EEOC interested in talking to witnesses, Warner says.

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5. Employee with Good Evaluation Fired for Performance

It's always going to be a problem for employers when an employee who was fired for poor performance has a recent "good" evaluation in the file.

• Worse—there's nothing negative in the file.
• Even worse—the employee got a bonus or raise
• Still worse—the employee got a glowing letter of recommendation
• Worse yet—the letter of recommendation is from the very person who had the issue with performance

In one case, says Warner, her client was allegedly fired for poor performance and her performance review actually said, "This employee walks on water."

In tomorrow's Advisor, the three things that "kill" Warner's cases, plus an introduction to a unique checklist-based audit system that will help you catch violations before the feds do.

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