Yesterday’s Advisor began attorney Whitney Warner’s list of 14 things managers do that make a plaintiffs’ attorney’s day. Today, the rest of her list.
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Warner, who is a founding partner with the labor and employment law firm of Moody & Warner, P.C., Albuquerque, New Mexico, made her suggestions at SHRM’s Annual Conference and Exposition in Orlando.
[Go here for the first six]
7. EEOC Response Not Well Done
Warner reminds employers that she gets the employer’s EEOC response before she takes the case. Typical problems she encounters:
- The charge was not investigated.
- Statements turn out to be wrong.
- The investigation was too cursory.
- The response insults the charging party (even worse, the response insults the EEOC!).
8. Company Didn’t Follow Its Own Policies
When the company ignores its policies, it looks like:
- Utter indifference, which can lead to punitive damages.
- Discrimination.
- Something that has to be explained.
- Something that is not fair. If it doesn’t feel fair, it feels illegal, Warner says.
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9. Company Issued a Gag Order
“Jane has filed an EEOC charge and you are not to talk to her or her attorney. You must report any contact to management.” Or, else what? asks Warner. This looks like:
- Witness intimidation
- Interference with an investigation
10. Company Ignored a Pre-suit Letter from a Lawyer
Give the lawyer a reason to go away instead of a reason to pursue, says Warner. For example:
- Provide the employee’s personnel file. If the termination is well-grounded, it will show in the file.
- Provide the relevant company policies.
- Explain your side.
11. Management/HR Witnesses Seem Clueless When Testifying
Warner finds managers guilty of:
- Not knowing the policies
- Not knowing if or when training or corrective action took place
- Not knowing how complaints are “supposed” to be handled
- Answering “I don’t know” to questions like “What is this case about?” “When was the employee trained?” “When were you trained?”
12. Trying to Be Clever with Testimony
Clever testimony will backfire, Warner says.
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13. Demonizing or Humiliating the Employee
For example, says Warner, avoid being overly aggressive during EEOC mediation or bullying the employee at a deposition or at trial.
14. Documents Are Missing or Suspect
For example, the employer can’t find:
- The employee’s performance evaluation
- The other applicants’ resumes
We have:
- Just-discovered “new” documents
- Unsigned disciplinary forms
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