I found this list on the Internet the other day and I thought it had some good “nuggets of awareness” in it. It was provided by the Employer Advisors Network and gives 7 reasons why employers lose in court when sued by employees (current or former). This is consistent with the risk management advice provided by insurance carriers that offer Employment Practices Liability insurance.
Employers lose the majority of the cases that go to trial. Here are some of the main reasons why this is the case:
1. The jury pool – Very few jurors have ever held an executive or managerial position. As result, the jury box generally consists of people who will judge your company from the perspective of the employee, not the employer. Like many employees, they have an “all bosses are villains and all employees are victims” mentality.
2. Employers focus on justifying rather than taking responsibility. When we make a mistake we should admit it. (My input? It’s funny that this is advice from lawyers!) There is no justifying the fact an employee hired on to bring value to your company is now suing you.
3. Failure to document – As every employment attorney tells their client: document, document, and document. Judges and juries expect to see proof of poor employee performance – in writing.
4. The company has disciplined inconsistently - Whether the company is big or small, the lack of consistent treatment is guaranteed to generate juror mistrust.
5. Somebody gets caught lying – Employers will often ignore, bury, or deny conduct they consider potentially damaging. Disclosure of this conduct by a plaintiff’s counsel will prove devastating. Catch someone lying just once and you can instruct a jury that everything they say lacks credibility.
6. They never received or signed the agreement – The employment contract, the confidentiality agreement, the employee handbook, and the mediation and arbitration agreement are nowhere to be found in the employee’s file – if they exist at all.
7. An overly aggressive approach – Whether on the leaning toward the plaintiff or defense, jurors dislike an overly aggressive presentation of the case. They are particularly sensitive to an attack on non-party witnesses.
The fact is, there are many more ways to lose at trial and employers are doing it all the time. Even if you “win” one of these cases you lose huge amounts of time and defense costs. And when you lose a case, you can lose real big. The best defenses against these claims are strategies and tools designed to prevent the filing of claims in the first place! And of course, Employment Practices Liability insurance.
I hope the list above helps you make the right moves to stay out of court.
