When a former employee sues for wrongful termination most managers immediately start the blame game. “That employee was crazy!” or “She never did her job!” or “I never wanted to hire her in the first place.” These are all childish ways to try and say, “This isn’t my fault, it’s the employee’s fault!”
I’m here to tell you that most employment lawsuits could have easily been avoided. Plaintiff lawyer’s like me handle wrongful termination lawsuits on a daily basis. After deposing countless HR professionals and managers, I have become convinced that if all managers would follow the below steps, the amount of wrongful termination lawsuits would drop by 99 percent nationwide.
So listen up talent management professionals—I’m about to give you some well needed advice:
1. No matter what, always treat your employees with respect
I’ve said it a hundred times: People don’t call a lawyer like me because the law was broken, they call because they feel like they were treated like garbage.
Yes, I know, they are your employee. Yes, they are getting paid to follow your instructions. And yes, sometimes they are downright terrible at their job. But, no matter how frustrated you are, please remember that employees are human beings first, employees second.
This may surprise you, but it’s the lawyer who determines whether or not the case has legal merit, not the terminated employee. Therefore, your goal as a manager should be to treat your employees with such respect so that they won't feel the need to pick up the phone and call an attorney. The moment they call a lawyer, for the most part, the case is no longer in the total control of the employee.
Look, I know this concept isn’t groundbreaking. But fundamental principles are fundamental for a reason. I think Jesus said it best -- “Love your neighbor as yourself.” (Matthew 22:39.) Even nonbelievers should understand the wisdom behind this command.
2. Be honest when you fire someone
No matter what you say during the termination meeting, the fired employee isn’t going to be happy. But when you stretch the truth as to why that person is being fired (or do a poor job investigating the real reason) you are basically poking them with a red hot piece of metal.
While this might seem obvious, management screws this up all the time. HR’s incessant need to justify why someone is being terminated has led to some pretty amusing depositions. Here is a hypothetical question and answer that is fairly representative of how many HR professionals answer questions in deposition:
So you wrote down on the termination form that the reason you fired my client is that he was excessively tardy. Is that true?
Did you witness his tardiness?
No, I didn’t. But people reported to me that he was tardy.
OK, do you at least know how many times was he tardy?
I’m not exactly sure, but way too many times.
Did you keep a record of his tardiness?
Yes, we keep a spreadsheet for all employees.
Did you look at that spreadsheet before firing my client?
Do you recall how many times that spreadsheet indicated he was tardy?
No, I don’t. But I’m sure I could look.
No need, I have it right here in front of me. It states that he wasn’t tardy at all for the six months prior to his termination. So were you lying about his tardiness?
Look, employees know when they’ve been performing poorly. They don’t sue when you fire them for something they know they screwed up.
But if you say they are being fired for tardiness, but they haven’t been tardy in six months, their spidey senses will start to tingle and they are probably going to call someone like me. Honesty truly is the best policy.
3. Enforce the rules fairly
I’ve written about this before. Well educated HR professionals know why this is so important.
It’s pretty hard to rebut a discrimination claim when all the white guys get free passes on company violations, but the black women do not. But I’ve learned that HR professionals are not the main violators of this rule, it’s business owners and managers who don’t understand the legal liability.
So for the HR professional, this issue largely becomes a “managing up” situation.
When your boss wants to give someone a free pass, or when he/she wants to fire someone without a warning when warnings are regularly given, it’s your job to advise that silly boss of the legal situation he/she might inadvertently be creating. So I urge HR and talent management professionals to toughen up and speak your mind. You are valuable and your boss will thank you later.