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.
Train your managers to avoid the following mistakes that Warner warns can trigger expensive and time-consuming lawsuits.
No Reason Given for Termination
Managers often say to employees who are being terminated, “You’re at will. We don’t have to give you a reason for firing you.” That’s a mistake, says Warner. It’s going to guarantee that the employee will bring a claim against you.
Why?
Every person believes that he or she is at least meeting expectations, and most think that they are stars. So the firing is going to come as a shock. The employee is going to think, “If it were performance, they would have told me about it, besides, it can’t be because of my performance, because I’m a star.”
The only conclusion the fired employee can reach is that it must be because of an illegal reason (I’m a woman, I’m pregnant, I’m old, I’m a member of a protected class.) And so they call Warner.
Some HR managers believe they should say as little as possible. No, Warner says, tell all. If you list five things, I know I will have to refute five things.
So, says Warner, tell them what the reason is.
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Even Worse—The Reason Changes over Time
If the reason you give for the termination changes over time, I’m going to get you on that, Warner says. She often hears, “Well, now that you put it that way, it wasn’t really the budget …”
One way Warner often catches people is through unemployment hearing testimony. “I’m going to get that testimony,” she says. In one case, the unemployment testimony was that the 20-year employee was fired for taking a $1.98 discount that she wasn’t entitled to. The firing was 10 days after she had made a harassment complaint to management.
After we sued, the company said there was a “pattern” of such violations, but I had the unemployment testimony to show that they were making it up.
Training Point: Make sure your unemployment hearing representative is trained and that you know what was said at the hearing.
Even Worse—Your Reason Is Contradicted by Objective Evidence
One of my clients was fired for “poor attendance,” Warner says. “I pulled the computer logs and showed that my client only missed one day during the year in question.”
Another client was fired for “customer complaints” but there was no documentation to back it up. “Those are good cases for me,” she says.
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Failed to Follow Your Own Policies
Another problem that Warner often capitalizes on is employers failing to follow their own policies. In one of her cases, Warner’s client, a caregiver in a residential care facility, had a bad thing happen from an outside third party. She was cornered by visiting family members and sexually assaulted with inappropriate touching.
The response of the supervisor was to pray about it. That was all.
When the client came back to work, the third party stalked her around the building, but the company still didn’t do anything. When I asked, “Did you know about this?” the manager said, “Yes.” “Why didn’t you do anything?” “I don’t know,” was the reply.
The facility tried to claim that they didn’t know this would happen, but there was evidence of a previous complaint about the same behavior. That case settled, said Warner.
Because of the way the company handled the case, I was sure they’d have no policies, but, in fact, they had great policies with very detailed step-by-step procedures. Maybe nobody knew about them? No, unbelievably, the managers had all been trained on the policies between the two incidents.
When you don’t follow policies and there are no consequences to the managers who don’t follow the policies, this appears as “utter indifference,”—and that means punitive damages.
In tomorrow’s Advisor, more of Warner’s “mistakes that make her day,”—plus an introduction to a 24/7 leadership training program that won’t break the bank.