Management side lawyers are constantly giving advice about “how to” or “how not to” handle various employment situations. But, sometimes the best insight about what is or is not a good practice comes from the plaintiff’s side. After all, they are the ones who sue our clients, and we should pay attention whenever a plaintiff’s lawyer tells us candidly what makes for a good employment lawsuit.
The following are a few quotes from a presentation attorney Randy Freking gave at a Labor and Employment Advanced Practices Symposium, followed by my own observations in bold:
Freking: “Performance reviews are dangerous things. I always tell employers to not do employee reviews unless you’re going to do them honestly. They’re wonderful documents for plaintiff lawyers.”
I agree with Mr. Freking on this one. When my client tells me they fired an employee for poor performance, only occasionally do the performance reviews back them up. The fact is, most managers and supervisors are not candid with employees who need to do better. Although it is difficult to give bad reviews, not putting an employee on notice of bad performance will cost you later.
Freking; “With every new potential client, I ask if they received a warning before being terminated. As soon as I hear ‘yes,’ it does slow us down in the march toward litigation.”
Many employers think that because Iowa is an at-will state, there is no legal requirement to give warnings. While that is technically true, at will employment has for all practical purposes become a myth. The reality is, almost all employee handbooks have progressive discipline, and most juries think it should be followed. The only exception might be if the employee does something really egregious, and you can prove the employee actually knew it was egregious and might result in a discharge. Serious safety related violations may qualify, especially if someone else is injured. So does theft or some serious dishonesty. But not too much else.
Freking: “Juries expect some level of progressive discipline—they think it should be required.”
Freking: “For a plaintiff’s lawyer, email stands for ‘evidence mail.'”
As we all know, e-mail has become the most common way people communicate with each other in the workplace. No matter how much managers are cautioned about how they use it, the reality is most continue to treat e-mail like it is a conversation instead of a written communication. People forget that e-mail does not go away, and those internal censors that are typically used in written communication are sometimes turned off when it comes to e-mail.
Freking: “People don’t run to attorneys because they think they’ve got a great legal case. They come to see me because they’re angry about the way they were treated, especially on their way out.”
Few things are more difficult that terminating employees, even those who deserve termination. To try and make the conversation easier, sometimes we say too much, try to be funny, or simply don’t think enough ahead of time about what to say. For example common statements like the following really have no place in a termination: “I understand how you feel”; “this is as hard for me as it is for you”; or “this decision is for the best interests of you and the company”.
Freking: “Respond to the lawyer’s letter. You’ve got to tell your side of the story. It’s your opportunity to talk the plaintiff’s lawyer out of the lawsuit. If I get blown off, I’ll proceed with the case.”
This is a good idea, but please get counsel involved at this point. Don’t assume the lawyer will be dissuaded from filing a if you simply tell them what the real facts are. Don’t assume this employee will never sue, that the court will dismiss it right away, or it will be obvious to anyone that you are on the right side.