However, when it comes to dispensing legal advice in a wrongful discharge or employment discrimination suit, even the wittiest barrister only has so much to offer. There are only three possible outcomes to a lawsuit, none of which are desirable and all of which involve significant risk: you win and pay a lot of money, you lose and pay a lot of money or you settle and pay a lot of money.
Once the battle has ended, it’s not uncommon for the defendants to gripe about the legal costs. Blaming the attorney for high legal costs is about as effective as blaming your favorite sports team for blowing $10M on a sore-armed quarterback or reliever. You can blame The American legal system with its loopholes, contradictions and obscurities and get the same result. With no one to blame, then what is management to do?
It’s really very simple. Do the right thing and treat the potential plaintiff with dignity and respect.
People don’t file lawsuits because they’ve found a loophole. They file lawsuits because they’re angry, because they’re hurt, because they’ve had their self-worth and dignity stripped away by a manager who handled the situation like a blockhead with no emotional intelligence.
Company policies designed to ensure consistency often make things worse. When someone is hurt and angry, they want to be recognized as an individual, not classified as part of the system. The classic case involves a situation when someone has used up his or her FMLA allotment and the company has a policy of automatic termination. The company defends the action on the basis of consistency. The employee looks at it differently: “I lost my job because I got sick.”
Now, which position do you think will play better in front of a jury?
Some HR people also make things worse by trying to compensate for the nagging doubt that the executives think HR is the refuge for wimps who couldn’t make it in the real business world. They compensate by getting tough, scripting terminations to eliminate any possibility of dialogue and attempting to intimidate the employee through the absolute logic of the company’s position. Obviously, HR people failed to watch Star Trek while growing up and missed the fact that Spock ticked off a lot of his co-workers by applying cold logic at a moment demanding empathy.
It has been said that termination is the psychological equivalent of death and no one wants to feel alone when they die. Adopting a strategic position and creating an atmosphere of formality in a termination discussion almost always guarantees that the employee will respond in kind: through an attorney who will formally communicate his or her strategic position. No matter what the outcome, the company will spend more money and suffer damage to its reputation because it failed to recognize the employee as a living, breathing human being.
The funny thing about many near-termination situations is that often both parties have the same goals but fail to communicate them well. Sometimes the employee wants to leave as much as you want the employee to leave. If you can find a way to make that easier for the employee, you could create a situation that works for both of you.
But you will never do that unless you get off your legal and tough-guy high horses and relate to the employee as one human being to another. The employee is in a pickle; we’ve all been in pickles at one time or another, so surely you can call up a bit of empathy when you start the conversation. Ask the employee, “What’s going on with all this? What’s your take on this situation?” Do all the things you should have learned in Management 101: listen, paraphrase and check for understanding. Share your perception without accusation, as if you are simply offering a different perspective. Dialogue as equals and work towards a solution that meets the needs of both parties. Do all you can to ensure that the employee leaves with dignity intact, self-worth restored and responsibility accepted (if the termination involves an alleged misdeed). This is achievable only if you treat that person with respect.
An honest conversation to end the employment relationship is far more preferable than entering the surreal world of legal action, where truth takes a back seat and the dynamics shift from dialogue to high-stakes poker.
You can lose a lot of money at the poker table.
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