HR From the Jury’s Perspective

I’m a trial lawyer.  An associate in my law firm recently asked me to make a list of things that I think the jury considers when hearing a case. While not everything on the list is required by law, if you could ask them, Jurors would probably tell you some pretty basic stuff:

Terminations:

  • Do not raise your voice to an employee unless you are warning of an imminent harm – “Look out for that beam!”
  • Talk to the supervisor before you fire his employee.
  • Never fire someone based solely on a written report.  Make sure the termination is properly motivated.  Investigate.  Ask questions.  Listen.
  • Never fire an employee without first getting their side.  Things aren’t always as they seem.
  • Don’t fudge the reason why you are terminating someone.  Better a slight or trivial reason than a false one.  Tweet This
  • The right to terminate an employee without cause is cold comfort in front of a jury.
  • Trying to explain to a jury why you didn’t do something is infinitely harder than explaining why you did; i.e., why you didn’t give notice, why you didn’t document the warnings, why you didn’t accommodate, etc.

Witnesses:

  • Action is character.  What you do exposes your character.
  • Truthfulness, likeability, documentation and consistency win lawsuits, in that order.
  • The more you have to explain why you did something the less likely you are to win a lawsuit.
  • Be polite and dignified in speaking of the employee to jurors.  You may not prevail, but it can lower the damages you must pay.
  • Corporations are people in the eyes of the law.  Mean people suck.  Jurors punish mean people.  Tweet This

Documents:

  • Write kind.  All documentation should promote likeability of the employer and its management.  Tweet This
  • Every document should tell the complete story of who, what, when, where, why.  It should stand on its own when presented to a jury.
  • Explain yourself in every document.  Be transparent.
  • All documentation should be contemporaneous.
  • All documentation must be direct, concise, easy to understand and truthful.
  • Don’t lie in a document.  Tweet This

The Jury:

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  • A jury doesn’t care about the company’s rights.  They want to hear how the company honored the employee’s rights.
  • Each juror wants to award money to vindicate their own feelings of unfair treatment.
  • The jury is made up of individuals.  Each of them starts on the employee side at trial.  It’s a team effort to convince them to switch allegiance.
  • Juries don’t want to hear, “She was terminable at-will.”  They want to know why you fired that nice lady.
  • A plain reason for termination, one that can be explained in a sentence or less, can win a juror’s vote.
  • A jury can award emotional distress damages based on what they “feel” will compensate the employee for the embarrassment of losing a job.
  • Explaining to the Board why you should not fire an employee without notice and an opportunity to improve is infinitely easier than explaining why you lost the lawsuit because you didn’t do so.  Tweet This

 

Photo Credit:  Sarah Tyson

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Mary Wright

Mary Wright is the Founding Editor of HR Gazette, an online magazine for HR professionals and employment lawyers. She is an employment lawyer with 25+ years' experience in helping employers reach workable business solutions to complex human resource problems. She is currently a Shareholder with Ogletree Deakins and the firm's former General Counsel. Connect with Mary.

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