ALP: How Can an Employer Get a Fair Trial Before a Jury?

March 2005
Business First

This is a good a question.  Most jurors are employees, not employers.  Naturally, they are more sympathetic toward other employees.  They have less understanding, and even less sympathy, for the problems of employers like productivity, competition, and profits.  How can employers gain the understanding of twelve employees?  Thankfully, there are steps you can take.

At trial.   Think like an employee. Your evidence at trial needs to focus upon the burden the person you terminated was placing upon his co-workers.  When a worker is frequently absent, who has to do her work?  When an employee is unproductive, who carries his load?  Your other workers!    Most jurors cannot relate to your “bottom line.”  Yet, they know from personal experience the burden placed upon them by “dead beats,” and even the well meaning but incompetent persons with whom they have to work on their jobs every day.  Help the jury understand how the plaintiff’s misconduct hurt your other employees.

At the termination.   Conduct a “discharge interview.”     No one enjoys firing an employee.  As a result, most managers rush to get through the process quickly.  This is a mistake.  Tell the employee what she has done wrong, then listen patiently.  Let the employee offer whatever explanation or excuse she may wish.  Take careful notes.  It is best to have one other witness in the room who also takes notes.  This offers at least three advantages. 

  1. Perception of fairness.  One question jurors will ask themselves is whether you treated the plaintiff in the way they would like to be treated by their employer.  If their job was at stake, they would want you to listen to their “side of the story.”
  2. Lock in” the plaintiff’s “story.”  By the time of a jury trial the plaintiff will have had months, if not years, to think of reasons why he should not have been fired.  The plaintiff’s lawyer will likely have “coached” your former worker about what will create a valid legal claim.  A “discharge interview” commits the plaintiff to whatever excuse he is able to think of at the time.  If the plaintiff offers a different “story” at trial, it will seem like what it is – something concocted in order to recover money. 
  3. Avoid mistakes.  You may be about to make a mistake.  Better to find out now than at trial.  If the employee you are terminating offers an unexpected explanation at the “discharge interview,” suspend the employee while you investigate.  If your investigation reveals the employee should not be terminated, you may have saved yourself an expensive lawsuit.

Right Now.   Take action to improve your chances before a jury.

  1. Don’t wait.  Many employers put off terminating poor workers.  While they continue to employ the problem employee, legal risks increase.  For example, the problem employee is growing older, may be filing worker’s comp claims, developing a “disability,” or organizing a union.  Plus, the longer you tolerate poor performance, the harder it will be to convince a jury that poor performance was the “real reason” you terminated the employee.  The only reason to delay firing a problem employee is if more time is likely to improve the employee’s performance, or your legal position.  Otherwise, be proactive.  Replace your problem employees with applicants who deserve and will appreciate the job you provide.
  2. Follow your own rules.  Does your employee handbook contain a “progressive discipline” policy?  Follow progressive discipline.  Jurors know their bosses expect them to follow their employers’ rules.  Jurors expect employers to follow their own rules.
  3. Give honest appraisals.  When an employee’s performance or attitude is poor, tell him.  You cannot expect a jury to believe you fired an employee for poor performance if you recently wrote on the employee’s annual appraisal that his performance was “satisfactory.”

The best way to win a jury trial is not to have one.  Sometimes, however, you have little alternative.  If you pay an unreasonable settlement you may only encourage others to sue you.  Employers can win jury trials with the right approach.  Plan ahead.  Conduct a “discharge interview.”  Think like an employee.  These steps will help ensure a fair trial, even before a jury of employees.

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