10 things your employment lawyer never wants to hear

HR people, you know what I’m talking about.

Sharks, vampires, tornadoes, heights, and evil clowns are scary. But sometimes the scariest thing to a management-side lawyer is what employers themselves say. Here are 10 things employers sometimes say that their lawyers (and HR) never want to hear.

No. 1: “We have employment at will in this state, so we didn’t need a reason to fire him.” Where there’s no reason, a host of illegal reasons will rush in to fill the void.

No. 2: “With 20-20 hindsight, I guess we should have documented that.” Oh, do you think?

No. 3: “Dave wasn’t setting the world on fire, but he was ok until we got his discrimination charge. That was the last straw as far as the CEO was concerned.” No, that was the second-to-last straw. The retaliation lawsuit that you’re about to lose will be the last straw.

No. 4: “I can’t think of any good reason why Mary should be making so much less than John.” Think harder. (And make a correction while you still can.)

No. 5: “Beavis was automatically term’d for being on medical leave for six months. We do that with everybody. No exceptions, and no ifs, ands, or buts.” An exceptional policy! (Not.)

No. 6: “When did we last do harassment training . . .? Er, I’ll have to get back to you. I need to check with someone who’s been with the company longer than I have.”
 #TimesUp! Get that harassment training done now!

No. 7: “Overtime? Of course not. All of our receptionists are salaried.” Here’s hoping they start late, quit early, and take very long lunch hours.

No. 8: “I know our VP of Sales is a bull in a china shop, but he makes so much money for the company . . .” Until this next lawsuit, which will cost more than all of the revenue he’s brought in for the past 10 years.

No. 9: “We did the EEOC response ourselves because it was an open-and-shut case.” No EEOC charge is truly open-and-shut until it’s over. At the very least, you should have an employment lawyer review what you prepare. Before you send it in.

No. 10: “Sure, everybody knew about Glinda’s automobile accident. It even made the local news. A drunk driver ran a red light at 50 miles an hour and T-boned her. She was in really bad shape – in intensive care for weeks. But we denied her request for FMLA leave because she didn’t get her medical certification to us within 15 calendar days.” Uh, remember the part about “unless it is not practicable under the particular circumstances to do so”?

Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.


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