Are juries worried about whether the facts meet the second prong of a prima facie case? asks attorney Edward M. Richters, No, they get to the jury room, and someone says, “Boy, did that guy get hosed.” Or, maybe, “She had it coming to her.”
Bottom line, says Richters, “How would I want to be treated” is the basis on which juries make decisions. Richters’s comments came at a workplace law symposium sponsored by national employment law firm Jackson Lewis and the Connecticut Business and Industry Association. Richters is a partner in Jackson Lewis’s Hartford, CT office.
Consider Alternatives
When they rule on terminations, juries are going to want to know that the organization considered alternatives to termination, says Richters. For example, Did the company consider a transfer, a demotion, or a suspension? And if you think the jury might not think of this, rest assured that your employee’s attorney will remind the jury about alternatives.
The employee will always argue:
- You could have transferred me. It just wasn’t a good fit, why not give me a chance at another position.
- You could have demoted me. I’m a victim of the Peter Principle. I was a good worker—that’s why you promoted me—and I just tried to do my best for the organization and it didn’t work out at the higher-level job.
- You should have counseled me. I should have been told that there was a problem.
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The jury will expect that you have considered these arguments, so be prepared to show that you did so.
If, instead of terminating, you agree to let the employee resign, document your decision with a statement such as, “When X was apprised of the charges and the organization’s desire to terminate the relationship, he asked if he could resign instead,” Richters advises.
Understanding Burden of Proof
It’s important for HR managers to understand one technical legal aspect of civil cases—the concept of “burden of proof,” Richters says. Most people think—because they’ve all watched trials on television—that the burden of proof in trials is “beyond a reasonable doubt.”
That’s a tough standard to meet, and HR managers often think that the cases brought against them could never meet that burden. But “beyond a reasonable doubt” is the burden of proof for criminal cases, Richters says, not for the civil cases in which HR managers are usually involved.
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In HR’s civil cases, the burden of proof is “preponderance of evidence.” The judge will advise the jury to side with the employee “if it is more likely than not” that the offense occurred. Sometimes the judges will say, “If the scales of justice tip even a little in that direction,” you may go that way. “Preponderance of evidence is a relatively easy burden for your employee’s attorney to satisfy,” says Richters.
And there’s one additional technical point, he notes: The preponderance of evidence burden may often be satisfied by circumstantial evidence. That makes the situation even worse for employers, because there doesn’t have to be any direct evidence.
In tomorrow’s Advisor, Richters offers a typical supervisor’s experience when testifying, and we take a look at the best way to stay out of court—regular HR audits of your practices.