“When a case begins,” says plaintiff’s lawyer Whitney Warner, “I wonder if the employer will do something dumb and fall into my hands. And they usually do make my day.”
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.
‘Don’t worry, this is not a punitive damages case’
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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High-Ranking Manager Is the Bad Actor
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.”
No Reason Given for Termination
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.
Yancey at You can learn basic employee rights
Employers routinely use discriminatory and disparate practices against employees. In my local government employment the prevailing attitude takes on two forms;
(1)”good ole boy” arrogance
(2)assumptive shield of government “immunity”
In 1998, I was simultaneously suspended and terminated by my Department Director for alleged insubordination. I declined to accept a work schedule change to a “created split shift” between second and third. Six months prior to this, I began teaching myself about my basic employee rights, particularly in the area of workplace discrimination and proving same.
This knowledge was critical because it enabled me to prove through the course of the appeal process (which was extremely biased) my employers pretext of discrimination. Thus, I was reinstated by a unanimous vote. The article mentions the “Even Better (for plaintiff)—This Is Not the First Problem with this Manager”. I presented rock solid evidence my terminating manager had a history of adverse action against people in protected classes. My employer assumed I was unaware of these facts for which this individual had gotten a “slap on the wrist and promotions”.
In criminal law there is a component for “conspiracy”, where two or more support each other, plan and scheme to commit crimes. Unfortunately, to my knowledge there is no corresponding employment law of conspiracy. My personal experience and research shows that “conspiracy” happens in the employment arena as readily as breathing. I have personally experienced collusion between managers, HR and legal departments to violate the employment rights of workers.
In my particular situation of local government, “good ole boy” arrogance assumed I was unaware of and would not dare seek to defend my basic employee rights. That same “good ole boy arrogance assumed it could hide behind the “shield of government immunity”. Since 1998, I have employment violations across the board hurled at me. I have been exposed to a hostile work environment; ADA violations, false harassment claims, discrimination in promotions and salaries and even a blatant attempt to violate rights guaranteed me under the Constitution of the United States! Local government has thrown everything at me including the kitchen sink, refrigerator and stove. Hmmm…great examples of the character and integrity of those running my local government. Yet I’m still here due to GOD ALMIGHTY and because I took the time to learn and continue to learn my basic employee rights!
Every employee should educate themselves about their basic employee rights before seeking and accepting employment. Doing so will arm them with knowledge of how to navigate the process of defending those rights and assisting legal counsel if and when it becomes necessary.