HR Esq. Column
Gotcha!: How Your Employees’ Attorneys Will Trap Your Managers
At Their Depositions
By Devora L. Lindeman, Esq.
Although no one wants their former employees’ harassment or discrimination claim to move forward to litigation, when it does, chances are your managers are not prepared. I don’t mean that they won’t be prepared for their depositions. I’m sure that your company employment lawyers will spend hours with them role playing so the managers become familiar with the process, etc. No. I mean that they (or your company) will not have taken the actions that should have been taken when the employee was still employed (or before) to set up defenses and avoid the “gotchas.” Here are some classic questions your employees’ lawyers will ask your managers:
“How much time did you spend with Plaintiff going over her job description?”
- Usual response: “What job description?” The company is trying to show that the plaintiff was let go because of her poor performance, but they can’t produce her job description.
“You told Plaintiff that he was being laid off in a down-sizing, but wasn’t Robert hired to do Plaintiff’s job the next week?”
- Usual response: Many managers do not know how to respond to this one because they thought they were being kind by telling the employee he was being laid off instead of saying that they were fed up with his poor performance. Always tell the employee the truth about why he or she is being let go. While you do not need to relay all the nitty-gritty details, a simple “We’ve talked about the problems with your performance and I’m just not seeing the improvement that is needed” can be enough to make clear why the employee is being let go—provided the manager has, indeed, performance managed the employee and had prior meetings about the poor performance.
“When is the last time you reviewed the company’s harassment policy?”
- Usual response: “What harassment policy?” Or, “I’m sure I saw it when I was hired about 8 years ago.” Or, “I don’t know if we have a harassment policy.” Not only do companies need to have (and keep current) harassment and discrimination policies, but these policies should be re-distributed to employees regularly (annually), with signed acknowledgements of receipt, and updated as needed.
“How often did you attend your company’s harassment training?”
- Usual response: “My company does not have harassment training.” Providing training for supervisors and managers demonstrates a commitment by senior management to provide a harassment-free environment to its employees, and a forum for managers to ask any questions they may have. In some states, such as California and New York, such training is required by law.
“If Plaintiff’s employment was so terrible that you had to let her go, why did you give her a satisfactory review a month before she was fired?”
- Usual response: “I give everyone a satisfactory review.” Or “I didn’t write the review—I just signed it.” Or “I guess her performance was not all that bad.” Or “The issues I was having with her were not addressed on that form.” Performance reviews (a) need to be done, and done regularly and (b) need to be an honest and accurate appraisal of the employee’s performance.
“If Plaintiff’s employment was so terrible that you had to let her go, why did you give her a raise (or a bonus) a month before she was fired?”
- Usual response: “I give everyone a raise.” Or “Everyone got a raise that year.” Or “She was having monetary trouble and I wanted to help her out.” Unless the company has a history of routinely giving cost-of-living raises without regard to performance, raises usually signal that the employee’s performance is at least satisfactory, if not better—especially when the raise is significant.
In most of the cases that I am handling now, the employee was let go for a legitimate business reason. There was no discrimination. However, because the employer failed to properly performance manage the employee and/or did not have proper anti-harassment policies and procedures in place, the litigation becomes difficult to defend.
While one would think that HR knows what it needs to do in this day and age to protect the company, business owners and managers sometimes don’t know that they need to listen to HR. It’s not always easy to implement the simple policies and procedures that can save the company money by potentially (a) preventing unnecessary litigations from being filed in the first place or (b) providing the company with the defenses it needs to show the former employee’s lawyer early on that he or she will not win that case. These are only some examples. But, getting these actions implemented can save the company time, money and aggravation (and possible PR damage) down the road.