When confronted with lawsuits, employers are often their own worst enemies, attorney Wendy Warner told attendees at a recent Society for Human Resource Management (SHRM) conference. Although she usually represents employees, Warner agreed to deliver tips on how employers can avoid lawsuits.
Warner is a partner with Moody & Warner, P.C., in Albuquerque, New Mexico. Here are some of the most problematic things she’s seen employers do.
Demonizing or Humiliating the Employee
Early in settlement discussions, company attorneys will often go nuts on the plaintiff employee, Warner says.
“That could never happen here.”
“You are crazy to suggest that this occurred.”
“This person you are accusing is a great person.”
“How can you do this to someone so important to our success.”
After this broadside, the employee, who might have been willing to settle for a modest amount, digs in his or her heels: “I don’t care what happens—I am not settling—I am going to get the jury to hear this case.”
Warner suggests that whoever talks to the employee take an approach more like this:
“I’m really sorry.”
“What are all the reasons you are concerned?”
“I can see this is upsetting.
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Trying to Be Clever with Testimony
“If you try to be clever, I’m going to get you,” Warner says. For example:
Warner: “Does this incident violate your zero-tolerance policy?”
You: “It depends.”
Warner: “How many incidents does it take?”
You: “A few.”
Warner: “Do you agree it would be inappropriate to do/say X in the workplace?”
You: “There are times when it could be appropriate. It depends on how it is interpreted.”
Warner: “Aren’t you the one who should know this?”
Acting Clueless on the Witness Stand
A surprising number of managers and HR witnesses often seem clueless when testifying. For example, they don’t know:
- The company’s policies
- If or when training took place
- How complaints are “supposed” to be handled, let alone how they were handled in the particular case
At least do a little homework, she admonishes. “Make me earn my money.”
‘Losing’ Old Documents
If you can’t find an important document in a case, like a performance evaluation or the other applicants’ résumés, Warner says she will likely suggest that you intentionally lost it.
‘Finding’ Mysterious ‘New’ Documents
On the other hand are suddenly discovered disciplinary forms found without an employee signature and complaints about the employee that are post-dated. “Those are going to be suspicious,” Warner notes.
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Selective Amnesia
Some managers think that “I don’t remember” is a better answer than the cold hard facts. Unfortunately for you, that response effectively means that the employee’s testimony is going unrefuted.
For example, if Warner’s client says, “He touched me 13 times.”
The manager answers, “I don’t remember.” That only leaves one fact on the table—the employee’s “13 times.”
Regurgitating the Party Line
A “party line” that gets repeated over and over in testimony starts to turn on itself.
“He’s an independent contractor.”
“She never reported the harassment.”
It soon becomes clear that the line is being parroted. “You quickly lose credibility,” Warner says.
In the next issue of the Advisor, we’ll offer Warner’s “lawsuit repellant” tips and introduce an extraordinary training tool for all your managers and supervisors.