Employers want a happy workforce; that’s a given. But there are certain things that employers do to further that goal that might as well be a present tied with a bow for a plaintiff’s attorney after an employment relationship sours. Below are some tips to help avoid making a potential plaintiff’s attorney’s day merrier and brighter.
Performance Evaluation Puffery: Many are guilty of being overly generous in an employee’s performance evaluation. Why? Because it is easier to give a good (or at least a decent) performance evaluation than it can be to confront performance issues and deal with the ensuing unhappiness of the underperforming employee. Often the thought is that by giving a positive performance evaluation, the performance problems will disappear, as if positive feedback will translate into positive performance. This wishful thinking is almost never the case in reality, and a track record of positive performance evaluations for an employee who is ultimately terminated for performance is bound to put a smile on a plaintiff’s attorney’s face.
The problem of an inaccurate or overly generous performance evaluation is often exacerbated when there is a transition in management. When an employee who is positively (but not accurately) evaluated by a manager for years is suddenly reporting to a new manager who does not sugarcoat the performance evaluation, and when that employee is later terminated for performance, the song that the plaintiff’s attorney will sing to the judge or jury is that because the evaluations were positive under previous management, the sudden change in heart about the employee’s performance must be because of the new manager’s bias against the employee based upon his or her status in a protected class. Delivering an appropriate message about the employee’s performance during the entire evaluation period is a strong tool should litigation ensue and may even dissuade a prospective attorney from taking the case.
Protective Instincts: Employers who make “protective” decisions to “help” an employee will also make the day of a plaintiff’s attorney. For example, sometimes a manager may opt to send a male employee out-of-state for work on an important project instead of sending a female employee with small children at home, reasoning that she would not want to travel because of her responsibilities at home. Such a decision may be made with all of the best intentions and upon an assumption that relieving an employee with family responsibilities from travel will make that employee happy, but a plaintiff’s attorney will easily turn those intentions into an intent to discriminate. When decisions are made about staffing, travel, or overtime assignments, the employer is not “helping” anyone but the plaintiff’s attorney if the employee is eliminated from the decision making because he or she is assumed to need the “help” of the employer in navigating his or her work and personal life.
No Good Deed Goes Unpunished: Bending the rules for one employee to make him or her happier at work is also fodder for a plaintiff’s attorney. Consider the situation where a loyal, hardworking employee has a problem getting to work on time, enough for other employees to notice. Yet, because of the productivity and skill of the employee, the employer lets the attendance policy slide and puts up with the tardiness issue. Plaintiffs’ attorneys love it when an employer extends grace to an employee to make him or her happy because when the attorney’s client, who wasn’t as valuable to the organization, is terminated for violations of the unenforced policy, an argument about pretextual decision-making is strengthened: if it was okay for one employee to show up late for work regularly, the plaintiff’s tardiness must not have been the reason for the termination. The lesson: when an employer extends a courtesy and overlooks company policies for one employee, that decision may ultimately be a bigger courtesy to the plaintiff’s attorney.
A Kinder and Gentler Termination: Unless contractual language to the contrary, an employer does not need to give a specific reason for a termination, although there are certainly times when it makes sense to do so. What makes little sense is to give a reason that is not the true reason just to make the termination meeting “easier” on the affected employee. For example, if the employee is terminated for performance, it is unwise to tell the employee that his position is being eliminated for the purpose of sparing him or her humiliation or self-doubt. The act of “kindness” to the employee may make the person communicating the termination feel better for a period of time, but it will make the plaintiff’s attorney feel really good for a long time. The false reason articulated will be postured as pretext, not as an attempt to be compassionate.
About the Author:
Kathryn S. Wood is a Member in the firm’s Troy office and Co-Chair of Dickinson Wright’s South Region Labor & Employment Practice Group. She focuses her practice in the areas of employment litigation, commercial litigation, and appellate practice. She has experience with discrimination, harassment, retaliation, whistleblower, complex commercial litigation, class and collective actions and defamation claims in Michigan, Indiana and Ohio. She can be reached at 313-223-3115 or firstname.lastname@example.org.