9 Things You Don’t Want to Have to Admit in Court

Many times, the easiest way to train managers about HR issues is to ask them to imagine themselves on the witness stand. When they realize what they will have to admit to, they learn fast.

“I fired him for no reason”

This is the statement that “at-will believers” will have to make on the witness stand. They’ve always been told that if an employee is “at will” they can fire the employee for any reason or no reason. And although that’s technically true, it’s always unwise.

That employee is going to say he was fired because of his protected status—race, religion, national origin, sex—and your only defense is going to be “No, no, I didn’t fire for that illegal reason, I fired for no reason.”

No jury has believed that yet.

“No one ever says anything anyway”

This is the reason often given for not doing reference checks. These managers say, “You can’t get anyone to open up and talk about the person you’re trying to get a reference on, so why bother.”

Again, think of yourself on the witness stand. One of your employees has committed a violent act. It turns out that she’s done it before. The injured party’s attorney is going to ask, “Well, did you do your due diligence and do a thorough background check?”

You’re going to have to reply, “No I didn’t do a reference check because they usually don’t yield much information.” That’s not going to sit well.

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“Too old?  Oh, I didn’t mean anything by that”

This is the “stray comments” defense. While one “stray comment” like “too old” probably won’t mean a conviction for age discrimination, it can bolster a case. Someone will have asked the employee when he plans to retire, and someone will have said, “Isn’t it about time you gave it up, old timer?” 

When those comments are coupled with a situation in which the oldest person was let go with no particular basis for the decision, the jury may not see things your way. (By the way, there are a lot of older people sitting on juries.)

“It was all in fun. Sandy seemed to like it”

This is a standard line of people accused of sexual harassment. “Sandy” is going to sue one day, saying “I had to go along with it; I have a family to feed.”

The important thing to remember about sexual harassment is that intent isn’t the issue. Effect is the issue.

“I thought he’d stop”

This is the comment of every manager who ever ignored a problem until it exploded. Whether it be harassment, bullying, or attendance, the issue is the same: if you let inappropriate behavior go unchallenged, you are effectively condoning the behavior. It’s never going to be a strong argument to say you hoped it would go away on its own.

And there is a corollary: people you wish would resign never will.

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‘In our department, Satisfactory actually means Poor’

Grade inflation isn’t only happening in school—it’s rampant at work. But it’s going to leave you on the witness stand trying to explain why you fired someone for poor performance when you signed a performance appraisal giving a rating of “Satisfactory.”

Your employee’s attorney is going to ask you to read the company’s definition of satisfactory that appears on the evaluation form you signed, and it’s going to say “performs all duties in a satisfactory manner.” It’s not going to get any better from there.

In tomorrow’s Advisor, more things you don’t want to have to say in court, and an introduction to the all-in-one HR solution,

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