“It’s a case of perception vs. reality. The plaintiff perceives he (she) was disciplined, retaliated against, and harassed. The reality is different. He (she) was terminated for a legitimate, non-discriminatory, non-retaliatory reason by a professional, well-trained manager with supportive documentation.”
Jurors are never on the side of the employers, says Zandy, who is with the FordHarrison law firm in its Orlando office. However, jurors have no problem siding with you if you give them the evidence.
Zandy’s research shows that his clients, large and small, get sued over the same issues time and again. At the recent SHRM Annual Conference and Exposition, Zandy offered the 10 top reasons that companies get sued:
1. Failure to Train Management
Managers must use “solid” techniques to:
- Interview and reference-check
- Evaluate performance
- Prepare documentation
- Coach, counsel, discipline, and discharge
- Recognize and reward
Managers must know the company’s equal employment opportunity and harassment policies. Who can unlawfully harass whom? Everyone can harass everyone! Zandy says.
Harassment can occur on-site or off-site and may involve vendors, customers, and third parties. Managers are always “on,” says Zandy. They think, “It’s my own time.” Tell them that when they are not at the office you still expect a level of professionalism.
2. Failure to Document
Make sure managers and supervisors know why HR insists on documentation—it’s simple, and juries demand it. You’d like your documents to control the day in court. You want the jury to know that you warned and warned again; you want the jury thinking, “Look how patient the company was.”
Use progressive discipline as a way to cure performance/conduct and as way to set goals and expectations, Zandy adds.
Managers/supervisors must understand where to maintain documents and be aware that personal files and “secret” desk files and e-mail files are all discoverable, including every posting and every Post-it® note).
Whether you like it or not, in court, your manager is going to have to say, “Yes, I’m the proud author of that document.”
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3. Failure to Manage In Person
Managers and supervisors should always try to communicate in person, face-to-face, says Zandy. Employees are less likely to be angry, upset, or misinformed if management is done in person.
Today’s managers and supervisors have forgotten about relationships. We’ve gone too far and our managers and supervisors are paranoid—they are so scared they won’t establish relationships with employees, Zandy says. The truth is that employees don’t sue managers they like, and a little compassion and sincerity go a long way.
Zandy recently had his first case in which an employee was fired on FaceBook. That act wasn’t discriminatory, Zandy says, but it was stupid, to the tune of $150,000.
4. Failure to Complete Performance Evaluations
Performance evaluations should be:
- Honest, accurate, and timely (an issue of “respect”)
- Used to summarize prior performance and conduct deficiencies (No Surprises!!!)
- Used to set goals and expectations for the future
Employees’ number one complaint about performance appraisals is that they are not done on time. Employees think that you don’t care about them.
Ask, does the file tell the same story the manager is telling? If the evaluation doesn’t support your position, says Zandy, seek an “amiable resolution” (that means write a check).
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5. Failure to Address Work Conflicts
Teach managers that they should not avoid internal employee conflict (“turn the other cheek”). Failure to address internal conflicts leads to discontent, lack of trust, and a loss of loyalty by employees. Managers and supervisors should:
- Identify and timely address conflicts;
- Follow up to ensure that conflict no longer exists;
- Address rumors head-on;
- Monitor turnover and retention rates; and
- Monitor interaction between new managers and employees. Lawsuits usually arise from a conflict (perceived or actual) with a “new” manager or because of a “bad” manager (“equal opportunity offender”).
Encourage managers who are uncomfortable with a conflict to talk to HR—they’re the pros, Zandy says.
In tomorrow’s Advisor, the rest of Zandy’s 10 most costly management mistakes, plus an introduction to BLR’s popular Wage and Hour Self-Audit Guide.