Hostile Work Environment -- 10 Things Bully Bosses Do to Cause Lawsuits (Part II)
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.
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