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.
1. “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.
2. “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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3. “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.)
Tomorrow, the next 3 things you don’t want to have to admit to a jury — plus an introduction to a valuable resource for the small HR department that has to train managers on these key don’ts.
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Yesterday , we looked at 3 things your managers won't want to have to 'fess up to on the witness
Yesterday , we looked at 3 things your managers won't want to have to 'fess up to on the witness