“Why am I getting sued?” is a common question we get from our employer clients when faced with what they perceive as a frivolous lawsuit brought by a ne’er-do-well former employee out for a quick buck or a pound of flesh. The short answer to that question is usually pretty simple – the employee decided to talk to a lawyer. Unfortunately, all the nuts and bolts employment training in the world may not stop a terminated employee from calling a lawyer. Nevertheless, understanding a few reasons why employees make an appointment with a plaintiff’s attorney in the first place may help prevent that phone call from happening at all.
1. A Job is Personal: American society implicitly associates a person’s identity with their job. Just think about any cocktail party or social gathering where people introduce themselves to each other. One of the ice breakers thrown out is, “So, what do you?”
When a person loses their job, they lose part of their identity. The longer an employee worked with a company, the more difficult it is for them to deal with the loss of that identity. Most plaintiff’s attorneys will tell you that their initial intake interviews often start out with a comment like “I gave X number of years to that place. All of a sudden they showed up with a box for my stuff and gave me 15 minutes to get out.”
Remember that an employee who is about to lose their job also is about to lose part of their identity. There is nothing wrong with showing empathy to the departing employee -- regardless of the facts underlying the termination decision -- when communicating the decision to him or her.
2. Challenging Unemployment Benefits: The employee who just lost their job and identity faces an uncertain future. They are trying to figure out how to make their next mortgage payment and buy groceries for the family. In the midst of that comes word that their former employer, the one to whom they gave X number of years of loyal service, has now challenged their claim for unemployment benefits.
Not only did the company take away their identity, but now the employee perceives their former employer as trying to take food out of their kids’ mouths. Guess what that does? It sends them to a lawyer’s office for help, not because they think the company discriminated against them, but because they want to make sure they get their unemployment benefits.
Now let’s fast forward to the lawyer’s office. The lawyer listens to the employee’s story and says, “Wow, that’s really unfortunate. Have you thought about filing a charge of discrimination with the EEOC?” Here’s another secret plaintiff attorneys keep close to their vest – many of their clients would never have been clients had the employer not challenged the unemployment claim in the first place.
That’s not to say that companies should roll over and allow every former employee to collect unemployment benefits. That is a complex decision which varies from case to case. Yet, when a company receives notice of an unemployment claim, it should take a hard look at whether it really wants to challenge the claim. Not only will the former employee perceive that challenge as the employer trying to take a pound of flesh, but such a challenge could open an unintended can of worms.
3. We Don’t Need No Stinking Reason: Repeat after me, “they were an at-will employee, and we could fire them for any reason.” Somehow, the concept of employment at will and the old yarn that employees can be fired for a good reason, bad reason or no reason at all makes employers think they actually can terminate employees without giving the employee a reason for termination.
Want to give an employee an incentive to talk to a lawyer after terminating them? Leave them in the dark about why the company is letting them go. Better yet, tell them that the company is terminating them under the company’s at-will policy: “You’re an employee at will, and we will not employ you any longer.” That won’t raise a suspicion in the employee’s mind.
Many employers feel that they need to soften the blow of a termination by avoiding giving a reason for termination. They assume it will be easier on the employee that way. To the contrary, that approach serves only to create confusion and questions for the employee and makes them wonder what the employer is hiding. Sure, it may not be easy to give a reason for termination, but employers would be wise to take the time to do so and be as honest as possible with the employee.
4. What We’ve Got Here is a Failure to Communicate: While communication is not always easy, its importance when dealing with employees cannot be overstated. All too often, whether intentionally or not, supervisors keep employees in the dark about where they stand. Come on, raise your hand if you have ever sugarcoated a performance evaluation with inflated positivity only to mask real performance problems or held off on talking to an employee about their performance because you just knew he would turn it around. A termination which comes out the blue and after those sugarcoated performance evaluations only leads to suspicions, problems and worst of all, lawyers. Talk openly and honestly to employees when concerns begin. That conversation may not ultimately save a job but can keep the employee from feeling blindsided and wanting answers.
5. Perception is Reality: At the end of the day, an employee will be more inclined to call a lawyer if they perceive their termination (or workplace treatment) to be unfair, suspicious or down right illegal. The key here is the employee’s perception, not the employer’s. It may seem completely reasonable from the employer’s perspective to terminate an employee who made an internal complaint about racial discrimination within the previous three months because their performance was continuing to decline. The employee’s perception is probably going to be different. Regardless of your rationale for termination, it is always a good idea to take a step back, consider the bigger picture, and ask yourself, “how would their decision be perceived by a group of 12 strangers.” If you are concerned at the answer, perhaps a different course of action would be appropriate.
