A Method for Staying Out of Court

​Former employment attorney and author Jathan Janove writes for SHRM Online on how to inject greater humanity into HR compliance. Jathan welcomes your questions and suggestions for future columns. Contact him at the e-mail address at the end of this column.    

In my former days as an employment law litigator, it seemed every lawsuit had the same three problems that spoiled the employee-employer relationship: 1) avoidance, 2) problematic documentation and 3) insult added to injury. After reviewing the three problems, I'll share my method for staying out of court.

The Three Problems

Avoidance occurs when management is too anxious to confront a problem. This results in the problem not being addressed in a timely way. Instead, it festers. Then, when the problem can no longer be ignored, the opportunity to deal with it safely and effectively is lost. It's like a patient with a medical condition that's too long neglected and now is no longer treatable.

The second problem, problematic documentation, tends to take two forms: missing documents and documents the employer wishes didn't exist. In a lawsuit, problematic documentation typically supports the plaintiff's claim of inconsistency, which is used to rebut management's reason for an adverse employment action. The inconsistency bolsters the plaintiff's argument that the real reason for the action is one forbidden by law.

The last of the three problems, insult added to injury, tends to arise from the first two. The employee on the receiving end of the adverse employment action isn't just injured (e.g., loss of job), but the way things are handled makes them feel insulted, degraded, humiliated or worse. The emotional reaction produces a desire for revenge, which often motivates the employee to seek legal counsel. As a former employment law litigator, I witnessed that path to the courthouse over and over and over.

The Method

For employers aspiring to maintain a claims-free workplace, here are three necessary actions:

1. Put your weight forward on your skis.

 Putting your "weight forward on skis" means using the avoidance instinct as a trigger to do the exact opposite. This means training and coaching managers on why the earliest sign of an employee problem is the very best time to address it and how to do so. HR can play an important supportive role as trainer, coach and resource where the message to management is, "When in doubt, run it by HR. We are here to help."

Not only is this approach most effective in dealing with the problem at hand, but other employees will pay attention. When management takes employee problems seriously and is willing and able to deal with them efficiently and effectively, employees have greater confidence in leaders' abilities to handle challenging situations. Leaders are seen as walking the walk rather than just talking the talk about what type of work environment they want to promote.

"The weight forward on skis principle was an absolute game changer in my leadership development," said Nathan Child, chief marketing officer for Otter Products in Fort Collins, Colo. "I have since shared this with as many other leaders as I can. It is a foundation for success in relationships."

2. Have the No-FEAR discussion.

This approach helps managers put weight forward on their skis. It's a way to address a problem promptly and constructively without bitterness, rancor or negativity.

The No-FEAR technique is simple though not necessarily easy. If you put some time and effort into mastering this technique, the payoff will be enormous. It will go well beyond preventing claims to improving retention, talent development, productivity and accountability. It will also go a long way toward reducing job stress.

The discerning reader will note that I previously called this the No-FEAR Confrontation technique. Clients and people I coach have since persuaded me that there's no need to include a negative connotation with the word "confrontation." Regardless of the issue or problem, the No-FEAR technique should be viewed as a means to constructive, positive engagement.

3. Write the Same-Day Summary.

I came up with the Same-Day Summary after years of frustration as a defense counsel dealing with problematic documentation. I experimented with different approaches until I found one that management can be trained and coached to use properly.

The fundamental essence of the Same-Day Summary that distinguishes it from conventional HR documentation is that the message is not initially conveyed in writing. Instead, it's communicated in a real-time conversation. The document follows very shortly after the conversation while memories of what was said are still fresh. This document simply confirms what the sender thinks are the conversation's key points, subject to the recipient having the opportunity to respond with suggested corrections.

"I love the Same-Day Summary for documenting employee conversations and counseling sessions," said Colleen McManus, SHRM-SCP, a senior HR executive with the state government of Arizona. "It is a tool that's timely, constructive, and gives the employee an opportunity to contribute or make corrections. This differs from many more formal 'documentation tools' I have seen used by other employers. Busy leaders are sometimes daunted by the idea of having to go back and 'document' something when HR or their counsel ask them to. The Same-Day Summary makes this step easier. And because it's easier, it's more likely to be used, which gets these types of situations documented in a timely and professional way that would stand any organization in good stead if challenged." 

I've been teaching, training, coaching and practicing Same-Day Summaries for well over 20 years, and I continue to hear that they are highly effective. I've been told that on the rare occasion a Same-Day Summary has shown up in court, it was very helpful to the employer. The rarity of it showing up in the legal system is a testament to its effectiveness in claims prevention.

Having previously dealt with numerous employment law claims throughout the country, I nonetheless maintain that employment litigation is virtually 100 percent preventable. Test my hypothesis: Familiarize yourself with the three problems and adopt the three methods. And then enjoy your claims-free workplace.

Jathan Janove is a former state bar "Employment Law Attorney of the Year;" author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins, 2017); Master Coach & Practice Leader with Marshall Goldsmith Stakeholder Centered Coaching; and faculty member, University of California San Diego Masters Series.