5 Ways You Attract the Attention of Plaintiffs' Attorneys

It's not that hard to avoid the actions that tempt plaintiffs' attorneys. There are at least five things that employers do that "make a plaintiffs' attorneys day."

1. Timing is Bad

When there's an internal protected complaint followed closely in time by termination, that's pretty easy for a plaintiffs' attorney to exploit. How long is long enough to wait after an internal protected complaint? Wait until either:

•An undeniable, verifiable reason for termination arises, or
•The complaint is forgotten. (If you are still thinking about it, you haven't waited long enough, says Warner.)

2. Internal Investigation Was Superficial

Some of the problems with investigations are:

•The employer just asked the harasser what happened and called it a day
•The investigations took too long
•The investigation was not documented
•No feedback was given to the complaining employee
•Relevant witnesses were not interviewed
•No corrective action was taken (especially a problem if the conduct is admitted)
•The employer responded to other complaints more earnestly (especially bad if the company does a full-blown investigation against the complainer while doing a cursory investigation of his or her complaint)
•Even worse—No Investigation!

Of course, it's worse if there's no investigation at all. Or of the employer's response is a dismissive "Oh, that's just the way he/she is."

3. EEOC Position Statement Not Well Prepared

One of the employer mistakes that makes a plaintiff's attorneys day is a casual response to the EEOC. The plaintiff's attorney will gather all the EEOC documents at the beginning of the case, and watch carefully. If anything comes up in testimony that contradicts what you told the EEOC, the attorney will pounce."

Often Seen Problems:

•The charge is not investigated at all. This doesn't look good.
•The investigation is too cursory. For example your response is "We have a policy and we didn't discriminate." If I'm an EEOC investigator, I'm having a field day with that statement.
•Statements turn out to be not quite right. For example, employer alleges a "pattern" of absence or "extensive" violations of the absence policy when the company's records show two absences.
•EEOC response fails to refute the conduct. For example, say that the employee complained to the EEOC that she was harassed over many months. Then looking at the company's response to the EEOC and it doesn't say, "It didn't happen. It wasn't severe and pervasive. We haven't violated the law."

You have to say that! "Put that in your response and make the attorney prove their case.

•Even Worse –Your Response Insults EEOC! For example, in your rebuttal letter, you say, "I don't know how your agency could arrive at this finding, your investigation was all wrong, you didn't talk to the right people."
•You gave phone numbers to EEOC. EEOC asks for contact information, but if you don't give it, they typically won't push. They rarely contact individual employees. "But if you give them contact information, guess what, they are going to use it. They'll call all those people, and ask them, ‘Might you have been a victim?' So use initials and give demographic information only. Don't include address and phone numbers."

4. Employer Issues a Gag Order

Employers may be tempted to issue a statement such as, "Jane has filed an EEOC charge and you are not to talk to her or her attorney. You must report any contact to management."
Or else what? Your gag order implies adverse action for violating the directive. Employees think they are going to be fired if they disobey.

An attorney will have this e-mail in big print, Exhibit A. And ask, Why did you send this e-mail? People have a legitimate right to bring a concern. Does this imply you might retaliate? So what are you trying to hide?

Bottom line, the gag order looks like witness intimidation. You're "interfering with an investigation." That will get the EEOC interested in talking to witnesses.

5. Employee with Good Evaluation Fired for Performance

It's always going to be a problem for employers when an employee who was fired for poor performance has a recent "good" evaluation in the file.

•Worse—there's nothing negative in the file.
•Even worse—the employee got a bonus or raise.
•Still worse—the employee got a glowing letter of recommendation.
•Worse yet—the letter of recommendation is from the very person who had the issue with performance.

In one case, a client was allegedly fired for poor performance and her performance review actually said, "This employee walks on water."

It's critically important to have an up to date employee handbook, job descriptions and an appraisal system that is fair and consistently utilized. Equally important, is that your supervisors and managers MUST be trained on the proper use of these tools or they can be your "undoing".
The Whitford Group provides all of the above plus much more, for example, writing an effective position statement for the EEOC. Please contact us if you or any one you know needs help with these issues.
TheWhitfordGroup@aol.com or 704 215-2115

Above article was edited for this blog. Today's HR Daily Advisor Tip: Whitney Warner, SPHR is the founding partner of Moody and Warner PC in Albuquerque, New Mexico