On the website I promised that since I’m a defense lawyer by day, I would bring you the latest legal information “from behind the lines.” This topic is one of the seminars top employment lawyers provide for their biggest corporate clients. You, as an employee, can now learn what it is that the most expensive lawyers say to managers about what those managers should and should not do, in order to avoid getting sued.
Each of the following 10 points starts as a nugget of advice for a manager or a boss about what they should do to avoid being sued by employees. So for each point, not only can you see what your boss should be doing, but you can flip it around in your head and see how you can use the advice to your own advantage.
This Hub is Part 1, containing mistakes 1 through 5. Part II of the Hub contains mistakes 6-10 (which are some of the juiciest). So without further ado, here are “The 10 Biggest Mistakes Bully Bosses Make that Cause Companies to Get Sued”:
1. Sloppy Documentation
Most discrimination cases really are not won with some kind of smoking gun evidence that proves the entire case. A single e-mail , or an audio recording of manager yelling and swearing at an employee rarely carry the day for employees who file suit against their boss. Usually, discrimination cases are proven with circumstantial evidence. Although you may have heard someone on television dismissively say “That’s circumstantial evidence,” circumstantial evidence is still evidence. And it can be very powerful evidence. You can use it in court and you can win a case using only circumstantial evidence.
There’s an old lawyers’ example of supposing that you are walking through the woods and find a turtle on top of a tall stump. You don’t have any direct evidence that somebody put the turtle on the stump, but you have pretty persuasive circumstantial evidence for it. All of this is to emphasize the importance of documenting the little things as they happen, because all the little things can be powerful circumstantial evidence of something much larger – like a company-wide decision to get rid of older employees.
One very successful employer-side attorney warned a group of manager that when employees sue employers, they often use documents, particularly e-mail, to show the jury that the manager was acting toward the employee with discriminatory intent. So, the attorney advised, “Always speak and write as if your comments will be held up to a jury some day.” This is something that I tell employers and managers all the time as part of my “day job” as employer-side attorney. “If you’re going to write something to an employee, imagine that it’s blown up to poster size, and then set on an easel in front of a jury.
So likewise, as an employee trying to protect yourself from a bully boss, you should also imagine what your written words will look like to a jury when when you are responding to your boss’s e-mails. Make sure you use a calm, professional sounding tone. Imagine a jury reading your words and then deciding who is the good guy in this situation: is it you, or, is it the manager? Way too often people spout off and lose their temper in e-mails. It will only come back and bite them in the courtroom.
2. Not Following the Company’s Own Policies and Procedures
Rules aren’t used only to hold you, the employee, accountable. You can often spin the company’s own rules around and use those rules to hold your manager accountable. Also, employee manuals frequently promise more than what the law requires. As a result, you can hold your manager to the personnel policies your company has issued, even if your manager isn’t aware of those polices. Courts expect managers to know what your organization’s policies and procedures are. If a manager tells you that the policy is “A” and it’s actually “B”, then it will look like your manager is making up rules in order to get you in trouble.
Let’s say, for instance, that your manager says you must call in by 7:00 am if you’re going to be late for work. But the policy actually states that employees must call in 30 minutes before their shift starts. If your shift starts at 8:00 am, then a jury is going to view your manager as being purposefully deceitful, not just forgetful. It can make your manager look like he’s out to get you, which he or she probably was. Your manager should review a policy, double check that he or she has it right, and check with HR before taking disciplinary action against you.
If you know, then, that your manager has taken disciplinary action against you that contradicts company policy, then make sure that you careully document what happened and get a copy of the rule your manager did not follow. You will have a nice piece of evidence.
3. Inflated Employee Appraisals
This happens all the time. A manager spends years avoiding a confrontation with an employee the manager believes is under-performing. Rather go through the uncomfortable situation of giving a long term co-worker a bad appraisal, the manager just gives the employee “4’s” on a one to five scale — with five being excellent.
The manager might give a few 5’s, and even a few 3’s, but that is as critical as the manager will be. Now let’s say your manager has given you some “3’s”. On a 1 to 5 scale, threes are “satisfactory.” When you’re in front of a jury, what does satisfactory mean? It means satisfactory. It means average or meets minimum acceptable levels. It doesn’t mean “needs improvement or will be fired.” On a 1 to 5 scale getting a 3 overall means you’re doing a good enough job.
If your manager consistently gave you “3’s”, or satisfactory, and then claimed that you were terminated for poor performance or that you were in trouble for poor performance, then your manager was contradicting himself or herself. This will undermine your manager’s credibility. In front of a jury in court your own attorney can say, “Look, here are years and years of positive appraisals that this manager gave my client” [you]. “And sitting here today is the same manager saying that my client has a history of poor performance.” Your attorney probably won’t bother drawing the conclusion for the jury, but allow them to draw if for themselves: the manager is now lying to try to justify getting rid of the employee.
If your personnel file is less than all “Excellent” status, don’t worry. But do work hard to keep your overall review score at least at a level of “3” or Satisfactory or Average or whatever is the middle of the road score at your organization. In truth, this should be fairly easy to do with most (but not all) managers. Do it, and you will have another powerful piece of evidence that the “real reason” you are being disciplined or threatened with termination is NOT your job performance.
4. The “Higher Up” Managers Shrug-off Employee Complaints
If there’s anything that I hear over and over again it’s that an employee complained about a bully boss to a higher level manager, and the higher level manager just shrugs it off, taking no action whatsoever. Defense-side lawyers are trying hard to train managers not to do this, but they do it anyway.
So what does this mean for you as an employee? You should complain to your manager, your HR person, or your boss’ boss. However, expect them not to do much, if anything, about your problem. You should carefully document that you did make these complaints. Send the boss’s boss an e-mail confirming that you had a conversation with them. Briefly summarize the key points and blind copy yourself to a personal e-mail address outside the company before you hit SEND.
This way you will have a copy of the e-mail that shows it was sent to your manager’s boss with the date and the time. It will then be the company’s burden to show (in court or in front of the EEOC) that it responded to you. Will they have? Probably not. Often a boss responds with comments like “I’m not a babysitter” or “boys will be boys” or “I want everyone here to act like adults.” They think that such a cursory response is enough, but it’s not. Their lack of responsiveness to good faith employee concerns is a big cause of employee lawsuits, and a big reason why employees win those suits later on down the road.
5. Managers Who Change Their Story
Another way that bully bosses cause and lose lawsuits is by changing their story. In an organization, sometimes the story of why an employee was terminated changes multiple times. When this happens, the company’s credibility is shot.
At first your boss will claim that you are having performance problems, and that you face discipline or even termination because of these supposed problems. When, however, you address those performance problems your boss will change course, and say, “Oh well, there are the attendance problems you have been having lately.” Then you address those supposed problems. Then your boss (now probably with H.R. Involved) will say, “Well, we’re laying you off because your position is being eliminated.” Does it look like “layoff” is the real reason you’ve lost your job, after management proffered all these different reasons, and keeps changing its justifications?
No, it looks like the real reason was some discriminatory motivation, and your boss was determined to get rid of you no matter how thoroughly you shot down each performance issue your boss raised. That’s why your bully boss changed his or her story – because he or she was determined to get rid of you no matter what.
So although this can be horribly frustrating to you when it’s going on, take heart in knowing that courts frown upon companies that flip-flop on why an employee was let go. Defense lawyers and companies both know that story-swapping by bullying bosses just causes the company to lose lawsuits. That’s why defense lawyers are out in the business world training bosses NOT to change their story around once they start disciplining an employee with an eye on termination.
If this happens to you, there’s no denying that the short term battles with your boss will be agonizing and frustrating. You’ll probably feel like you are caught in a cycle where you lose no matter what you do. But you will know that the bully boss is unintentionally giving you the upper hand in the long term. You are the one who is going to win the war.
6. “Papering” an Employee’s File
(This is Part II of the Hub “10 Things Bully Bosses do to Cause Lawsuits.” If you missed Part I, you can find it HERE.)
The sixth mistake of managers that causes companies to lose lawsuits is papering an employee’s file. Lots of managers hear the mantra “document, document, document, document everything.” I tell that to supervisors when I provide training about discipline done the right way. And when I leave my day job and advise employees as “the Undercover Lawyer” I also tell the employees to document everything. But some managers seem to be under the impression that if they generate 100 pages of disciplinary actions against an employee then there is little chance the manager will get sued, and zero chance the manager will get sued and lose.
Such a manager could not be more wrong.
You see, despite the constant mantra of “document everything,” it is possible for a manager to over document, especially if you have years of positive performance appraisals in your file. What frequently happens is that an employee receives a steady stream of positive appraisals from one manager. Then that manager retires, is transferred or gets promoted. Then a new manager comes in and is red hot to show the world what a great manager he or she is. Suddenly the new boss is putting a steady stream of documents into your file about everything little thing you do the slightest bit different than what the new boss wants (and the new boss can’t explain what he or she wants when you ask). And then, bam, the employee is fired.
Looking back on the employee’s documented history with the company shows a long paper trail of positive evaluations and no performance problems, followed by an intense burst of negative documentation, and then a sudden termination. This pattern does not look good for the employer or the new manager.
Courts and juries see right through this pattern. It’s obvious that the “manger” can’t manage at all, but is just some bully who is determined to get rid of you. This new manager/bully is really just “building” a case against you by over-documenting trumped up infractions and sticking every possible negative piece of paper into your file. There are strategies for stopping these gung-ho bully bosses before you lose your job, but all those strategies are outside the scope of this Hub and take up so much space that I put them into a book. For the purposes of this article, you should know that “papering your file” is not some foolproof plan a bully manager can use against you. In fact, it’s not a smart move at all and will only help you, the employee, prove that the real problem was the new manager and not your (proven over the longer term) ability to do a good job.
7. Being Rude and Mean Spirited
Yes, being rude and mean actually is a bad thing for bosses. I know it sure doesn’t appear that way to many people, who feel like bully bosses get rewarded by company executives for ruining the careers of regular people. But consider this: the bully boss does not come across well in court.
An employer can have the best case in the world, but if on the witness stand a supervisor comes across as a rude, insensitive jerk, then the jury simply will not want to depart from the golden rule. The jury will not do unto you what they would not a jury to do unto them. In other words, the jury is not going to want to bring back a verdict where the jerk wins and the kind, every day employee loses everything.
Juries will almost always side with the person with the most sympathetic story, who also comes across as being honest and not fake. And it doesn’t matter all that much what the law says, and I say that as a lawyer.
I know this happens. The lawyers on both sides know juries act this way. That’s why defense lawyers put on seminars for managers and tell the audience “Sure, it’s not illegal to be a jerk, but it’s not smart. Your employees can’t sue you for being rude, but if you are rude it will help them win the discrimination and harassment claims that they can sue you for.
So look at this point and spin it around; an angry vindictive employee will not get the sympathy of the jury, even if that worker WAS discriminated against. That’s why it’s so crucial that you always come across as the reasonable, levelheaded employee who was trying all along to do the right thing. Even if your boss isn’t taking this advice (especially if you boss isn’t taking this advice) you should.
8. Careless Statements to EEOC Investigators
Number eight in the manager mistakes that cause employers to lose lawsuits is careless statements to EEOC investigators. Yes, managers get interviewed by EEOC investigators after you file a claim with the EEOC. Managers often will spout off, vent to the investigator and say all kinds of careless things. You can bet that you can use those against your manager later in court. It’s a great strategy, a way to see what your boss’s “side of the story” is, and get your boss respond to you before your boss brings a defense attorney in for help. You will get an unfiltered version of your boss’s story, and you can use it against him or her later on in court, or immediately in the EEOC case.
This is a secret way to get raw facts out of your employer, and you should use it to your advantage. And again, this trick is so powerful that defense attorneys go around training their clients to be really careful, to not respond to the EEOC on their own, and to always get company’s attorneys involved early. If you boss is cocky enough to believe that he or she is always in the right, then your boss may be just the type to make all kinds of statements to an EEOC investigator that having nothing to do with your performance and make it look like you were terminated or retaliated against for nebulous, suspect reasons like “not a team player,” “attitude,” or “she just wasn’t a good fit for our culture.”
9. Firing Employees Too Fast
This is one mistake that managers often don’t realize they are making, even if all the employees can see that it’s a mistake as plain as the sun in the summer sky. The boss doesn’t try to improve the employee’s performance (in other words, doesn’t “manage”) and it makes the boss appear insensitive and potentially discriminatory. Employers who take a long time to try to improve a negative situation with an employee, and who can show gradually increasing discipline over that time period are the ones who will look better in court. Juries like it when it looks like the employer went well beyond the minimum legal requirements and tried everything possible to “save” the employer-employee relationship, but despite the boss’s training and coaching the employee just refused to do the work. THAT is the protocol which good defense lawyer train managers to follow. But again, the reason “firing employees too fast” is on this list is because it is one of the things bosses most frequently get wrong.
While “at-will” employment is still the rule (“at-will” meaning it’s not illegal to terminate at any time), firing employees too fast does make employers look bad. So if you’re someone who was fired right away when a new boss came into your department, or you were fired with no real warning, then that will be one strike against the company. You should explore other areas where you might be able to build on that foundation and develop a good case that you termination was not, in fact, legal even under the “at-will” employment rule.
10. Lack of Legal knowledge
Over and over managers, especially the bullying type of bosses, who are not close to HR think they know the law. But actually they don’t. For instance, the ADA changed dramatically as of January 1, 2009. The COBRA laws also changed dramatically. The Family Medical Leave Act (FMLA) is another very powerful tool that bosses and even H.R. people don’t completely understand.
So if you take the time to learn your workplace rights and master the laws that your boss doesn’t understand, then YOU will be the one who is doing what defense attorneys say the managers should do. It’s you, and not your boss, that will be way ahead in the game.
What happens when a bullying boss doesn’t know the law? In that situation your attorney will be able to argue to the jury that the company should know the law. The company (meaning your boss) will be held to a high standard, which is why the company’s own lawyers are saying “If you don’t want to lose in court you need to learn the law.” Employers should be constantly keeping up on what the new laws are and how to apply them. This is not unfair, it’s just part of being an employer in America.
If your company or your boss doesn’t bother to learn the law and just acts like “I’m the boss and what I say, goes” then the negative effects of making legal mistakes will fall on them, not you. So keep up on the law. Stay a couple of steps ahead of your bullying boss. Hopefully I’ll be able to help you do that in an engaging, straightforward and even sometimes entertaining way that is easy to understand.