The 10 firing mistakes sure to get you sued

In sports, it’d be invaluable to have your opponent’s playbook.

In the same way, it’d also be good for HR to know how plaintiffs’ attorneys plan to sue you for wrongful termination.

Two plaintiffs’ attorneys recently shared their strategies with HR pros so you can avoid the 10 “deadly sins” that firms often commit.

It’s true only 3% of all cases ever make it to trial. But you’ll increase your odds of ending up there if you’re guilty of any of these sins:

1. ‘At-will’ as defense

The myth of employment “at-will” – that staffers can be fired at any time for any reason – has been devoured by thousands of exceptions. Every person in the U.S. can fall within a protected category.

2. Contradictory documentation

If supervisors keep checking “satisfactory” boxes on performance reviews, you’ll never be able to get rid of anyone for performance reasons. Want a termination to stick? Make supervisors write honest reviews.

3. Appearance of retaliation

If an employee exercised his or her rights under FMLA, the ADA, the Pregnancy Discrimination Act or has announced plans to retire within the past six months and is then fired, a retaliation suit is almost automatic.

Watch out for close timing between adverse actions and protected activity. Juries like whistleblowers and believe they’re doing social good; these make great cases for plaintiffs’ lawyers.

4. No progressive discipline

If progressive discipline is in your handbook and you didn’t follow it, you’re in trouble. Juries are of a mindset that warnings are required before someone’s let go; the fired employee who can say, “I never got a warning” wins.

5. No respect for job longevity

If you fire a 10-year employee, plaintiffs’ lawyers automatically assume the firing was illegal – and they’ll find a way to prove it.

Wrongful termination jury verdicts rise dramatically for 10 years-plus of service, so these make very attractive cases for lawyers.

6. Shooting from the hip

Avoid rash decisions by having HR or another senior manager independently review all terminations.

7. Poorly implemented RIFs

Don’t call an elimination of one job a reduction-in-force; that’s a phantom RIF.

Everyone will think you were trying to get that one employee. You’re better off telling the truth about him or her.

And always be able to answer the question: “Why did you select me?”

8. No post-termination fairness

If you have no or cheap severance or try to deny unemployment benefits, staff members who wouldn’t have sued are backed into a corner and often feel they have no alternative but to sue.

9. Ignoring info requests

If you ignore a plaintiff’s attorney, you’ll just make him or her mad –

and he or she will go to the Equal Employment Opportunity Commission.

If you give the lawyer the requested info, often he or she will talk a complainant out of suing if the case is flimsy.

10. No experienced legal counsel

Dealing with lawyers on your side who don’t have experience in employment law just drags out the case and probably will make it more expensive for both sides.

Source: Attorneys Randy Freking (513-721-1975) and Bill Waldo (213-553-9200) spoke at the 2013 Labor & Employment Law Advanced Practices (LEAP) symposium in Las Vegas.

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