In yesterday’s Advisor, plaintiff’s attorney Whitney Warner gave us tips from “the enemy,” that is, a successful plaintiffs’ attorney. Today, more of her tips, plus an introduction to a 24/7 leadership training program that won’t break the bank.
Warner, who is SPHR certified, is the founding partner of Moody and Warner PC in Albuquerque, New Mexico. Her tips came at the SHRM Annual Conference and Exhibition, held recently in Las Vegas.
High-Ranking Manager Is the Bad Actor
“I like it when a high-ranking manager was the harasser or took the retaliatory step,” says Warner. The higher the rank of the bad actor, the better for my client.
Even Worse—This Is Not the First Problem with this Manager
A step worse is when I can show that this was not the first time this manager committed the bad act, says Warner.
Even Worse—No Corrective Action
And even worse than that, says Warner is when there were previous incidents and the company took no action. Always take action, says Warner. Do something.
Even Worse—The Manager Got Promoted and Got a Bonus
Sometimes it’s a step worse than that, when the bad actor has been rewarded. Say the top manager was behaving inappropriately toward a 20-year employee who was subsequently fired. Here’s what I’m going to tell the jury, Warner 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.”
Demonizing or Humiliating the Employee
Another mistake that Warner will take advantage of is demonizing or humiliating the employee. For example, often in an early conciliation session, the company attorney goes nuts on the employee, says Warner: “That could never happen here. You are crazy. This guy you are accusing is a great guy.”
The employee’s response is going to be, “I don’t care what happens. I am not settling. I am going to get the jury to hear this case.”
Here’s what to try instead, says Warner: “I’m really sorry. What are all the reasons you are concerned? I can see this is upsetting.”
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 (cleverly): 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’s interpreted.
Warner: Aren’t you the one who should know this?
Acting Clueless on the Witness Stand
Then, there’s the other side of the coin. A surprising number of managers and HR witnesses often seem clueless when testifying, Warner says. For example, they don’t know:
- The company’s policies,
- If or when training took place, and
- How complaints are “supposed” to be handled, let alone how they were handled in the particular case.
- The basics of the case: they haven’t reviewed the facts
“Losing” Important Documents
Finally, says Warner, be careful about documents. If you can’t find an important document in the case, like a performance evaluation or the other applicants’ resumes, I may suggest that you intentionally lost it.
“Finding” Mysterious “New” Documents
On the other hand, suddenly discovered disciplinary forms without an employee signature and complaints that are post dated are going to be suspicious.
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What if the manager or employer doesn’t recall certain information such as dates or times of conversations where employer claims the employee was told about his/her conduct that lead to termination? Or employer doesn’t recall statements that the employee claims manager made in regards to a situation that the employee may feel he/she was wrongfully terminated in relation to the content of the conversation? But yet manager remembers other specific situations that the employee claims never happened. How do you determine who is not telling the truth when it may simply be a case of he said she said between manager and employee.
This is a common (avoidable) problem. Ultimately juries resolve the credibility differences. They typically expect employers to have documented anything that was important and the supervisors to remember things. They may take a supervisor’s statement that he doesn’t remember an incident as a lie if the employee has sufficient details and contemporaneous notes. To resolve this kind of credibility problem before getting to a jury, the HR professional is called upon to assess all the circumstances, determine who might be motivated to state things incorrectly and assess what the employees wants to gain. If the employee isn’t seeking any money, is still employed, and wants the work enviornment to be better, there isn’t much motivation for them to make it up (unless they know they were just about to be fired). The manager is motivated to deny doing anything wrong. This situation can be avoided by regular notetaking by the manager. Don’t start taking notes with the employee who might be a problem. Make it a regular habit as to all (this avoids claims of being singled out). If the manager wants to be able to go back to a verbal conversation as a link in the chain of efforts to help the employee improve, this should be recorded somehow. Even an email to the employee to say, “Jim, just following up on our conversation yesterday afternoon. We talked about the importance of answering the phone within two or three rings and letting someone know if you are going to be away from your desk so that calls don’t go unanswered. Let me know if there is anything I can do to help you make sure these things happen.” This records what it was about, the emphasis is on improvement, and you can date when the conversation took place. You can track whether the employee received it and it gives them an easy way to object or respond if they don’t think it was fair. Even a quick entry in the manager’s daytimer is helpful to narrow down the date and corroborate the manager’s testimony about the conversation. Many employees do not recognize a verbal discussion as part of a corrective action plan and do not put much stock in these discussions. To make it meaningful (and memborable) to the employee give them something in writing (such as the sample email above).
In response to ED Lass’s comment above, this is exactly why contemporaneous documentation is so crucial–it only takes a minute to jot down a few notes about a performance-related conversation between supervisor and employee, and those notes could make all the difference in the event of a lawsuit (they could even mean the difference between getting sued and not getting sued in the first place).