Mary Wright is an employment law attorney with more 25 years’ experience in helping employers — and she’s written a very helpful article that should be required reading for every HR practitioner and manager: HR from the Jury’s Perspective – What A Trial Lawyer Wants You to Know.
She offers bulleted lists of “Dos and Don’ts” and observations in several categories. We’ve excerpted a few as a sample.

Terminations: “Trying to explain to a jury why you didn’t do something is infinitely harder than explaining why you did; i.e., why you didn’t give notice, why you didn’t document the warnings, why you didn’t accommodate, etc.”

Witnesses: “Truthfulness, likeability, documentation and consistency win lawsuits, in that order.”

Documents: “All documentation must be direct, concise, easy to understand and truthful.”; “Don’t lie in a document.”

The jury’s perspective: “A jury doesn’t care about the company’s rights. They want to hear how the company honored the employee’s rights.”

Use your EAP
When it comes to performance issues or potential terminations, we’d urge you to involve your EAP whenever possible. When performance problems occur, particularly when there is a change or degradation in performance, there is often an underlying reason. It may be work-related or it may be personal – family stresses and problems, mental health issues, substance abuse, or any number of reasons.
It’s not the job of a supervisor to diagnose but your EAP can be a good resource for addressing behavior or performance issues. At ESI EAP, we are often able to help resolve employee issues before disciplinary actions are required. Train managers how to use the EAP and how to be familiar and comfortable with making referrals.

Additional Resources

When complex employee issues arise, ESI EAP offers member employers direct access to Certified Senior Professionals in Human Resources (SPHR) and senior clinical counselors. If you need an Employee Assistance Program give us a call: 800-535-4841.


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