Last week, our colleague Patrick Smith posted an entry on his employment blog titled, “What Makes for a Good Employee Lawsuit”. In his blog, Patrick responded to an employment presentation given by Ohio-based attorney Randy Freking. While the employment attorneys at Babich Goldman primarily represent employees, Patrick primarily represents employers, so his ideas on what he thinks makes a good employee lawsuit caught my eye. Below are some of Patrick’s thoughts from an employer perspective and some of my thoughts from an employee perspective.
On Performance Evaluations:
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.
We love performance evaluations for the very reasons Patrick and Mr. Freking advise employers to use caution. We can frequently use performance evaluations to argue our client’s former employer trumped up a reason to fire our client. Judges and juries (the people making decisions in these cases) will likely have a hard time believing a person’s job performance was so abysmal the person had to be fired when that person’s recent performance evaluations are glowing. Judges and juries are equally skeptical of odd patterns in performance evaluations, i.e. when a person receives exemplary ratings one year and then those ratings plummet the next year leading up to discharge.
On Written Discipline:
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.
Patrick’s view that “at will employment has for all practical purposes become a myth” demonstrates it really is a matter of perspective. In our office, we receive a lot of phone calls from people treated poorly and unfairly at work, but because of Iowa’s at-will employment laws, there isn’t a lot we can do to help them. From the employee’s perspective, at-will employment seems alive and well and too often used to discharge hardworking and dedicated employees over minor issues or differences in opinion. Employers must be mindful, however, that although at-will employment means an employee can be fired for any reason, the reason may not be an unlawful one.
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.
Patrick is right. People forget that email does not go away, and tend to turn off their internal censors for email. While managers and other decision-makers might be careful not to verbally say anything that could be used “against” them, they might not be so careful in email. When someone becomes upset and fires off an email without thinking first, those emails can become a window into a decision-maker’s thought process, motive, and biases, and can then be used by employees to prove their cases.
On why people seek legal advice:
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”.
I understand Patrick’s point, but I respectfully disagree. I believe a lot of times if an employer demonstrated more compassion during a termination meeting, an employee might leave feeling less angry and might not seek the help of an attorney in the first place. I don’t believe there is anything wrong with an employer being apologetic during a termination meeting or acknowledging that the decision was a difficult one.
Here, Patrick is responding to Mr. Freking’s observation that people often seek legal advice because they are angry about the way they were treated at work. This is true. Another reason people will seek the advice of an employment lawyer is they have been fired and their former employer fights the employees claim for unemployment benefits. Had the employer never fought the claim, the employee may never have thought to visit with an attorney. An employee may go to an attorney’s office for unemployment help and leave with an attorney/client contract after having shared the facts of what is a very good employment lawsuit. The lesson here is that for employers, how you treat employees after their discharge may be just as important as how you treat them before or during their discharge.
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