THE FORBIDDEN PHRASES DON’T WORK

Posted by Attorney Roger L. Pettit in Employer-Employee Relationship, Human Resources, Business Management / Comments

In my last post I explained that using the forbidden phrases when terminating employees can foster lawsuits.  Those phrases will never satisfy an opposing counsel or a fact finder in a lawsuit brought by disgruntled employees.  The following fictionalized cross examinations illustrate why employers may wish they had been more forthright in the first place:

 

Question:	“Did you give Mr. Smith a reason for his termination?”
Answer:	“Yes.  I told him the company was going in a different direction.”
Question:	“Which direction were you planning to go? North? South?  East? West?  Up? Down?  Frontwards?  Or backwards?”
Answer:	“No, that’s not what I meant.  I just meant that the company was going to make a change.”
Question:	“Were you going to change product design? Were you going to change manufacturing techniques?  Were you going to change locations?”
Answer:	“No, no, no, no, we were going to change the employee.”
Question:	“I see, you were going to change Mr. Smith for another employee.  Now that that is cleared up, please tell the court why you decided to terminate Mr. Smith, and if the reason is a legitimate one, why you didn’t tell Mr. Smith at the time of his termination?”

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Question:	“Did you tell Mr. Smith why you were terminating his employment?”
Answer:	“Well, I told him I was letting him go at-will.”
Question:	“What does that mean?”
Answer:	“Well, Mr. Smith was an employee at-will so I could let him go.”
Question:	“Is that why you let Mr. Smith go, simply because you could?”
Answer:	“No, I had a reason.”
Question:	“If your reason was legitimate you would have told him when you sent him to the unemployment line, wouldn’t you?”

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Question:	“When you terminated Mr. Smith did you give him a reason?”
Answer:	“No.”
Question:	“Why not?”
Answer:	“Because I was told that I don’t have to have a reason to terminate an employee.”
Question:	“In fact, isn’t it true that when you terminated Mr. Smith you told him that you didn’t have to give him a reason?”
Answer:	“Yes, I did.”
Question:	“So you terminated Mr. Smith for no reason?”
Answer:	“No, I have a reason.”
Question:	“If your reason was legitimate you certainly would have told Mr. Smith at the time of his termination.  Correct?”

Question:	“Now, Mr. Smith tells me that on the day that you terminated his employment you told him that he was not a good fit. Is that correct?”
Answer:	“Yes.”
Question:	“What did you mean by that?”
Answer:	“Well, he was always late.”
Question:	“Do you have other employees that you have not terminated who are late?”
Answer:	“Yes.”
Question:	“Are they bad fits as well?”
Answer:	“No.  Their lateness wasn’t as often as Mr. Smith’s.”
Question:	“Do you tolerate a certain level of poorly fitting employees?”
Answer:	“No, that’s not what I meant.”
Question:	“Is Mr. Smith not a good fit in some other manner?”
Answer:	“Well, he really didn’t get along with his co-workers.”
Question:	“Do you allow your co-workers to determine hirings and firings?”
Answer:	“Of course not.”
Question:	“Was there any other way in which Mr. Smith failed to fit?”
Answer:	“Well, if you must know, he was the least productive member of his team and it required the other team members to do extra work in order to get our projects completed on time.”
Question:	“If that was the real reason, you certainly would have told him that at the time he was terminated.  Correct?”

Answer:	“I told Mr. Smith when we let him go that it just wasn’t working out.”
Question:	“What wasn’t working out?”
Answer:	“Mr. Smith’s employment.”
Question:	“Was he on time to work every day?”
Answer:	“Yes.”
Question:	“Did he miss any days from work?”
Answer:	“No.  He was always at work.”
Question:	“Was he respectful of his co-workers?”
Answer:	“I never heard any complaints.”
Question:	“Was he respectful of authority?”
Answer:	“Yes.”
Question:	“Did Mr. Smith violate any rules or company regulations?”
Answer:	“Not that I can think of.”
Question:	“Isn’t it true that of all of the employees in your company from time to time you would run across individuals who would sometimes be late?”
Answer:	“Oh yes.”
Question:	“Sometimes be absent for no excusable reason?”
Answer:	“Yes.  Unfortunately we have some of those once and awhile.”
Question:	“Do you sometimes have to counsel employees for violating one rule or another?”
Answer:	“Oh yes, that’s all part of the daily life of a HR Director.”
Question:	“Have many of those employees been employed for a good length of time?”
Answer:	“Oh, yes.  A lot of our employees have been around for more than 5 years.”
Question:	“And even those employees from time to time had attendance problems, and committed other work rule infractions and are still employed.  Those employees are ‘working out.’ Correct?”
Answer:	“Well, I suppose so if you put it that way.”
Question:	“Well then you must have made a mistake when you fired Mr. Smith because as you have so helpfully explained, employees with a record such as Mr. Smith are ‘working out’ as employees of the company. Correct?”
Answer:	“No, no, you don’t understand.  Mr. Smith’s quantity and quality of work was less than his co-workers on his team and it required his team members to put in extra time and effort to get projects done in a timely manner.  In fact, when he did submit a report on behalf of the team, it was poorly written, there were several misspellings and grammatical errors, and the report showed his lack of understanding of the significance of the project.”
Question:	“Well, if that was the real reason you certainly would have explained that to him at his exit interview.  Correct?”

At trial the employer wants the evidence to focus on facts that support the stated reason for terminating the employee. Trial is not the time to articulate for the first time an employment related reason.