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In Employment Law Cases, It’s Not Just about Smoking Gun Evidence

The worst-case scenario for any claim involving an employment-related decision is the “smoking gun” piece of evidence that destroys the case. It could be a notation in an interviewer’s notes that the applicant was “old” or a supervisor’s note indicating that the recently terminated employee “complained about safety issues a lot.” Because you generally have good supervisors and interviewers who should know better than to make those types of notations, “smoking gun” evidence is rare.

What is common, however, is the type of evidence that, on its face, doesn’t destroy the case but hurts your ability to defend the claim. While not the smoking gun, it allows the employee to draw inferences and moves her closer to proving that you made an improper employment decision. This article addresses some of the pitfalls that can occur in the employment process and offers suggestions on how to best defend yourself against an employment-related claim.

Mastering HR: Discrimination

The interviewing process is ripe with opportunities for problems. For example, it’s important to avoid certain subjects, such as conversations about the applicant’s spouse or children. While some brief “small talk” at the beginning of an interview about the applicant’s child playing in the local soccer league may seem harmless, it can quickly turn into evidence that you didn’t hire the applicant because you were worried she would need to leave work early because of her child’s extracurricular activities. If the applicant voluntarily injects her spouse or children into the conversation, you should quickly and politely turn the conversation back to the matter at hand.

It’s important to know that any notes you take during the interview could be used later at trial if the applicant files a lawsuit over your decision not to hire her. Therefore, you must be cautious about the types of notes you take and how they relate to the applicant. That’s not to say that you shouldn’t take notes. It simply means you should make notes with the understanding that the entire world may see them in the future.

Mastering HR: Hiring

Like notes taken during an interview, any employee evaluation you perform may, at some point, become a trial exhibit in a lawsuit. Therefore, any notation or comment included in an evaluation must be made with the view that a jury may one day look at the evaluation during a trial.

Moreover, it’s important that employee evaluations be done consistently. Inconsistent evaluations can cause problems and create situations that may be difficult to explain. For example, let’s say you have two supervisors, and each evaluates his own group of employees. Assume that one supervisor is demanding and expects a lot out of the employees he supervises. Because he tends to rate employees on a tougher scale, employees in his group tend to be rated lower. The other supervisor, however, is more forgiving and rates his employees on an easier scale. As a result, his employees tend to receive higher ratings. Now, assume that you give raises based on their ratings.

You know that the first supervisor tends to give lower ratings and that a midrange rating from him is better than a midrange rating from the second supervisor. You may run into problems, however, if you give the first supervisor’s employee a larger raise than the second supervisor’s employee. Similarly, if both employees apply for a promotion, you may encounter some difficulty awarding it to the lower-rated employee even though you know that a lower rating from the first supervisor is the same as a higher rating from the second supervisor. For those reasons, it is critical that your supervisors be consistent in giving evaluations.

Mastering HR: Discipline and Documentation

Discipline and termination
As with evaluations, discipline must be applied consistently among all employees. For example, if employee A and employee B engage in similar misconduct, both employees should receive the same type of discipline. Inconsistent discipline is difficult to explain and can help an employee argue that he received harsher discipline because of a protected characteristic such as race or gender.

In addition to maintaining consistent disciplinary practices, you should ensure that you keep a written record of the discipline. Even if the employee merely receives an oral warning, there should be some notation in his personnel file indicating that. A written record makes it easier to show a jury or judge how you advised the employee that his conduct was unacceptable and gave him another chance. It’s difficult to later argue that you didn’t promote an employee because of his tardiness issues when there’s no record that you ever disciplined him for being tardy. Having a written record of discipline makes things easier and helps keep you out of a potentially difficult position.

Finally, the same rules for doling out discipline also apply to the ultimate discipline — termination. For example, if you suspend employee A for misconduct but fire employee B for engaging in the same misconduct, you will quickly find yourself in a difficult position. In a lawsuit, employee B can easily create an inference that his dismissal must have been for some impermissible reason rather than for his alleged misconduct. While you can attempt to offer an explanation for the inconsistent treatment, it may fall on deaf ears.

Mastering HR: Firing

Bottom line
Any employment decision you make can always be scrutinized and twisted to support an employee’s claim. An employer’s job is to avoid creating not only the obvious evidence that will destroy a case but also any evidence that on its face doesn’t appear improper. You should look at every employment decision you make from all angles and determine whether it could be misconstrued to support an employee’s claim. If you find yourself having to provide a complicated explanation for your decision, chances are you need to step back and reevaluate whether it could withstand scrutiny in a lawsuit. Otherwise, you may find yourself in a difficult position when trying to defend your decision.

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