Employment-related claims remain at near all-time high levels, and most employers face them from time to time. Many attorneys would agree they have a “wish list” of things they would like to receive with their next employment lawsuit to help them successfully defend the case. Unfortunately, to the detriment of an employer’s defense, that wish list often goes unfulfilled. By equipping your employment defense lawyer with the right tools, you’ll increase your chances of winning employment-related claims. It’s important to recognize that a good defense starts with internal processes, long before a claim is made. Here are just a few items on this defense attorney’s wish list.
Solid and accurate documentation
Good documentation is the bedrock of effective corrective action when defending your personnel actions. Too often, employees are counseled about past behavior but there is no documentation. The absence of documentation can have dramatic effects on the outcome of employment- related claims.
When judges, juries, and administrative agencies evaluate claims, witness testimony obviously has some degree of weight. Testimony that is supported by documentation created at the time of the personnel action is more powerful and persuasive than it would be otherwise. In some cases, documentation is literally the only record of what happened months or even years ago. Memories fade over time. Managers and supervisors move on, sometimes becoming disenchanted with their former employer. Further, sometimes a witness’ recall and testimony of events simply isn’t possible, which makes contemporaneous documentation all the more important.
Thus, there a few basic rules you should instill in your supervisors and managers. First is the no-gossip/no-hearsay rule. Documentation and personnel actions should focus on facts, not rumors, gossip, or speculation. Additionally, all documentation should be based on observable behavior, not conclusions or opinions. For example, a statement that an employee is “lazy” isn’t helpful. A better approach is to specifically state the performance issue. Doing so will be far more helpful if a claim is made months (or even years) down the road and a manager must recollect why he thought the employee was lazy. By focusing on the employee’s behavior ― he repeatedly takes extended breaks, never turns in assignments on time, and has been late for work three times in the last five days ― you eliminate the perception of bias.
Second, it’s important that documentation be prepared contemporaneously. If you document an incident when it happens (or soon after), it will be harder to infer that the record was somehow doctored or made after the fact to hide some sort of nefarious motive. On the other hand, if documentation is prepared six months after a complaint or legal claim has been made, it’s easy for the employee to argue that you did so simply to cover your tracks. Again, memories fade, which makes documenting events as they occur all the more important.
Honest evaluations
Over the years, we’ve seen many cases in which employees were discharged for poor performance and their managers readily testified that their performance had been unacceptable for months or even years. In a surprising number of those cases, the written performance evaluations simply didn’t support that conclusion. The employee looks like a star on paper.
The reality is that as human beings, managers are often hesitant to provide negative feedback or evaluations, even when they’re warranted. That can be costly when it comes to defending performance-related discharges. The obvious inference is that if an employee’s performance evaluations have been good over the years, testimony to the contrary isn’t credible. By contrast, when evaluations document actual performance issues, you have a much easier time supporting and defending the discharge decision.
Keep in mind that defending a potential lawsuit isn’t the only goal when documenting employee performance. Evaluations are designed in part to identify issues to employees and give them an opportunity to improve, which is good for the employee and good for business. Thus, candid evaluations serve a practical goal of improving performance as much as they serve the goal of preparing for a solid defense of potential legal claims.
Accurate termination documentation and communication
In terms of both the termination message and its supporting documentation, accuracy is something that is on most defense lawyers’ wish list, particularly when it comes to defending discharge claims. For example, consider an employee who is discharged for a specific act or omission or poor performance. Sometimes, in the interest of softening the blow or avoiding confrontation, a manager may not describe the termination honestly or accurately. Instead, he might say something like “position elimination.”
That can come back to haunt you. You can expect a discrimination claim when the former employee learns that someone outside his protected class assumed his job duties. Then, when you explain the “real” reasons for the discharge (which differ from what was communicated to the employee or placed in his file), the honesty of your rationale can come into question. Courts have found that inconsistent statements about the reason for a discharge can, on their own, be enough to send a case to trial. That injects a whole new level of time, expense, and risk into an employment claim.
The omission of one of many discharge reasons can have the same effect. When an employee is discharged for multiple reasons, the person completing the discharge documentation might highlight one reason that stands out. In the alternative, he might take the easy route and not describe the circumstances fully. Adding discharge reasons or later changing them has the same effect and can undermine your defense to an employee’s discharge claim. When an employee is terminated for multiple reasons, each reason should be documented and serve as the basis for the personnel action.
The pretermination call
In today’s economic climate, employers are sometimes reluctant to run a discharge decision past HR or legal counsel. Resources are limited, so it’s understandable. However, most employment attorneys have seen cases in which a simple phone call to a lawyer before a discharge could have (1) better positioned the employer to defend its decision or (2) avoided a mistake that led to an employment lawsuit. The modest investment it takes to run a discharge decision past counsel can pay huge dividends. That’s because one mistake is all it takes to generate an employment claim that can cost tens of thousands of dollars and much time and angst to defend.
Bottom line
These simple steps can help lower your risk of employment claims and make them more defensible when they occur. Accurate, detailed documentation in disciplinary situations, performance evaluations, and terminations can pay tremendous dividends. Running a discharge decision past HR or legal counsel is an important part of the risk-management process and involves minimal investment, making it well worth your time. It takes only one bad experience to highlight that fact. Hopefully, these simple steps will improve your processes and lower the risk of unpleasant experiences altogether. Happy holidays!
Craig M. Borowski is a partner with Faegre Baker & Daniels in Indianapolis, Indiana. He may be contacted at craig.borowski@bakerd.coms.