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Keeping It Real: The Importance Of Honesty In HR

General HR
October 21, 2020

About the Webinar

It is critical for HR departments to operate in an honest and transparent fashion—not just for ethical reasons, but to guard against accusations and lawsuits. In this webinar, we discuss what that honesty entails and how HR professionals can steer clear of trouble.

Join us, and learn how to adhere to the truth—tactfully—while performing various HR functions, from hiring to termination. Review guidelines for providing honest (but compliant) references. And glean lessons learned from actual lawsuits arising from less-than-honest HR practices.   

Court records prove it: when it comes to HR, honesty truly is the best policy. Make sure every member of your HR team takes the time to watch this valuable webinar. We promise it will inspire them to consistently “keep it real.”  

What You Will Learn:

  • Why honest HR operations are essential to avoiding lawsuits
  • How to maintain transparency while engaging in hiring, performance evaluations, discipline, and termination activities 
  • What we can learn from actual employee/employer lawsuits and settlements  

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Robin Paggi

About Your Host

Robin Paggi

Training and Development Specialist

Robin Paggi is a human resource practitioner and trainer who bases her advice and training programs on real-world experiences. Her areas of expertise include teambuilding, supervisory skills and communication. 

A California native, she holds an M.S. in Psychology, an M.A. in Interdisciplinary Studies with a concentration in Human Resources, and an M.A. in Communication Studies. She is passionate about tackling pressing H.R. issues and dedicated to sharing her knowledge.  

Robin Paggi

About Your Host

Robin Paggi

Training and Development Specialist

Robin Paggi is a human resource practitioner and trainer who bases her advice and training programs on real-world experiences. Her areas of expertise include teambuilding, supervisory skills and communication. 

A California native, she holds an M.S. in Psychology, an M.A. in Interdisciplinary Studies with a concentration in Human Resources, and an M.A. in Communication Studies. She is passionate about tackling pressing H.R. issues and dedicated to sharing her knowledge.  

Keeping It Real: The Importance of Honesty When Handling HR Issues

 

Emmet Ore Hello and welcome, everyone. Thanks for being here today. My name is Emmet Ore. I’m the Marketing Coordinator for Avitus Group, who is a Division Partner of VensureHR, and I’ll be your host for the next hour. Today, our panelist, Robin Paggi, will be talking about the importance of honesty in HR. There will be a Q&A session at the end. We’re going to do our best to answer all the questions, but any of that we don’t get to will be responded to individually after the session.

 

Emmet Ore This webinar is brought to you, as always, by VensureHR. Vensure is the leader of 20-plus PEO partners with clients in all 50 states.

 

Today’s agenda is going to be covering why it’s important to be honest, hiring, performance evaluations, disciplining and terminating, providing references, and lastly, a Q&A session. So, if you hear a topic that you need more clarity on, feel free to just submit a question in the Q&A box.

 

I’m excited to introduce Robin Paggi. She is a seasoned human resource practitioner specializing in training on topics, such as harassment prevention, communication, team building, and supervisory skills. And with that, I’ll hand it over to Robin.

 

Robin Paggi Thank you. This might sound like a silly question, but why should we be honest when dealing with HR issues? Primarily because HR is or should be the backbone of every organization, and it’s the mouth of the organization. That sounds kind of like the ones who were talking to people about policies and such. If honesty isn’t in HR or the people who work there, it’s possible the organization might collapse due to it being a job satisfaction. That sounds pretty dramatic. If honest, the organization’s going to think about it. If employees can’t trust the people, then who can they trust?

 

So, HR is a business’s backbone, and that’s primarily the reason that we need to make sure that those of us who, Dylan, HR, and anybody who deals with our issues, are honest. Also, you can be sued if you are not honest. And I’m going to tell you about a lot of lawsuits where people were not honest and they did get sued. And I’ll tell you how much money it cost them as a result of that.

 

So, why would people not be honest? Primarily because sometimes the people who have to deliver honest messages are very reluctant to do that. They don’t like to tell people things that might hurt them and so they tend to avoid it. And then, sometimes people don’t want to hear the truth. They want their truth sugarcoated. And so that’s one of the reasons that people tend to avoid being honest, is it’s just painful for everybody involved sometimes. But despite that fact, it’s important to. Now one of the things Mary Kay Ash, the founder of Mary Kay Cosmetics, said was, “Honesty is the cornerstone of all success, without which competence and ability to perform shall cease to exist.” And I’m a pretty honest person, sometimes brutally honest. But, I believe that to be true, that honesty, even brutal honesty, is better than lying. As the saying goes, “I’m not upset that you lied to me. I’m upset that from now on, I can’t believe you.” And so think about that any time you are tempted to fabricate, or soften, or anything like that, is that any time people find out that you have lied, they might not be able to trust you in the future. And you certainly don’t want that, especially if you’re working in HR.

 

Robin Paggi So the first issue that we’re going to talk about is honesty and hiring. So we’ve got a lawsuit, Helmer versus Bingham Toyota Isuzu, and that happened in Fresno, California, which is about an hour and a half north of where I live. So this one hit a little close to home. Helmer worked for Lithia Automotive as the Parts Services Manager and earned about $5,700 a month. So that’s very important—$5,700 a month because that issue is going to come up over and over, exactly how much he made at his previous job. Now, he learned that another automotive Bingham, Toyota Isuzu had a job opening in its Parts Department. And so, he applied for the job, and he talked with a gentleman named Clark, who was the Director of Parts and Services and had the authority to hire and fire employees. During the interview, Clark asked Helmer how much he earned at Lithia. By the way, in California, that’s against the law now. You cannot ask previous employees how much they earned at their job, or job applicants. So anyway, this was before then, and Clark asked Helmer how much he earned and Helmer responded, he averaged about $5,700 a month. There is no dispute in Helmer’s mind that he told Clark he needed to earn at least that much money. And according to Helmer, at that point in the conversation when they were talking about money, Clark opened his desk drawer, pulled out some kind of financial statement, something with numbers on it, appeared to make some calculations, and then stated, If Helmer had been employed by Bingham since January, he already made $70,000 at that point. Clark didn’t show Helmer the documents. He didn’t show him the calculations that he made the statement on. He just told him that’s what he would make. So based upon that statement, Helmer quit his job at Lithia and went to work at Bingham. On his first day, Clark presented Helmer with a pay plan to sign. But, you know, when you are presenting all of that HR documentation and how employees really don’t look at it, they just sign stuff, so that’s what Helmer did. And there was no explanation of a pay plan or what he was signing, nothing. But when Helmer received his first paycheck, it was only $4,400, which was considerably less than the $5,700 he thought he was going to be making. And so, he talked to Clark about it. And Clark said he didn’t understand what was going on and he would check into it. However, he didn’t get back to Helmer about it. On the next paycheck, Helmer received $5,100, which was better than $4,400, but still not $5,700. So again, he questioned Clark and Clark suggested that if Helmer worked extra hours in the body shop, he could earn the additional money. Well, that’s not what they agreed to. On his third paycheck, Helmer received $4,800, so that’s less than the last paycheck and he told Clark again that he was paid less than the $5,700 that they had agreed to. According to Helmer at this point, Clark said that he needed proof that Helmer had made $5,700 at his previous employer, and so Helmer provided him with his pay stubs and he believed that once he did so, that he was going to make $5,700 from now on. No surprise, the following month, no changes had been made. He didn’t get the $5,700, and so Helmer asked Clark to meet with the company’s comptroller so that they could get this all figured out. And at that meeting, Helmer said that Clark had told him he would have made at least $70,000 if he had been working at the dealership since the previous January. And the comptroller evidently said, “There’s no way in the world he would have made $70,000 in a nine-month period.” Helmer said, “I don’t care about the $70,000 anymore, I just want my $5,700 that I was promised.” About two days later, Clark told Helmer that he was terminated. So, no surprise Helmer sued, alleging fraud. Now, one of the things that’s interesting is that the jury listed seven different things that Bingham, the ownership, had done. So, this is a very important thing, is that Clark, the guy who was doing all of the talking, didn’t get personally sued in any of this. It was his employer that got personally sued. And these are the seven things that the jury said the employer, Bingham, did. They made a false promise. They had made a promise they did not intend to perform. They made a promise with intent to defraud. Helmer was not aware of the intention, so Helmer acted in reliance upon the promise, and Bingham’s promise caused Helmer damage. How much damage? The jury awarded economic damages just under half a million dollars, $50,000 in non-economic damages, and $1.5 million in punitive damages. It was later reduced, but still, Helmer did not work there that long, and that’s the amount of money he got. So, this is an excellent example of supervisors doing things that employers end up getting sued for. The jury found that Bingham made a false promise, not that Clark made a false promise. And that’s why it’s critical that supervisors be trained not to make the job look better than it actually is.

 

Robin Paggi Now, an example of honesty is the Peace Corps. And if you are not familiar with this organization, here’s a little bit of background on them. While campaigning for presidency, then-Senator John F. Kennedy went to the University of Michigan, and he made an impromptu campaign speech to the students there. And he asked if they would be willing to serve their country and the cause of peace by living and working in underdeveloped countries around the world. Less than a year later, he was president. He signed the executive order creating the Peace Corps. And we don’t see commercials very much for the Peace Corps anymore, but this is when the commercials went into play. Now, the first assignments for people who enrolled in the Peace Corps were for places like Ghana, Tanzania, Columbia, the Philippines, Chile. And what people were going to do when they got there was build roads, and schools, and farm, and teach farming, and teach school English, math, science, that kind of thing. So it was a tough job. Unfortunately, many Americans didn’t understand the reason for the Peace Corps and so they didn’t sign up. But then, this very famous commercial came out, and it showed the hardships of the job, living thousands of miles away from home in third-world countries, sometimes without running water, toilet facilities, or heat. But they also showed the rewards of serving, and their tagline was, “The Peace Corps was the toughest job you’ll ever love.” Despite the truth and advertising, people started to volunteer almost immediately, and they got lots of volunteers. So the Peace Corps advertised that the job was tough and thousands of people jumped on board as a result. The moral of this story is—don’t overpromise when it comes to hiring. Be honest about pay, duties, expectations, and the conditions of the job, because one of the things that tends to happen when people don’t have a realistic job preview, is that they imagine the job to be something that it’s not, and they start the job and they find out quickly it’s not what they thought it was and then they quickly leave. And so that’s one of the reasons that HR wants to have these realistic job previews. This is how tough the job is going to be, so that they reduce turnover.

 

One more thing before we go on, and that’s about implied contracts. These things are sometimes created in job interviews when an applicant asks about things like job security. And I remember that’s one of the things I asked about when I applied for a job a couple of jobs ago. What’s the turnover like? And, sometimes interviewers say things like when I was told, “Oh, you’ll have a job as long as you do a good job.” And when that is said, that creates an oral contract. And oral contracts are just as binding as written contracts and prevents employers from terminating employees for anything other than cause. So, when hiring, be honest. If you don’t, it can end up costing you in lots of ways.

 

Performance evaluation. So, let’s look at some cases. Dishonesty happened in the case of Vonne versus Etel. and I talked about this case last week when I talked about the importance of documentation. But in case you weren’t with us, here is a little bit of the situation. Emma Vonne worked at Texaco’s subsidiary and she received favorable performance evaluations, merit increases, and no criticism of her work performance before being terminated by Texaco. In truth, she was not performing well, but because Texaco was fearful of a racial discrimination suit if she was told the truth, her supervisors were directed to withhold their criticism. Then, she was terminated as part of a layoff based upon merit. Then, she did sue for racial discrimination, but she didn’t allege that she was fired because of her race. Her lawsuit said she was discriminated against because she had received only favorable reviews, and she had not been afforded the same opportunity to improve her performance as her white counterparts. She thought, had she been honestly reviewed, she could have improved her performance and avoided the layoff. The court agreed, saying, “This direct evidence clearly shows that Vonne’s supervisor acted as he did solely because of Vonne’s race.” Vonne has consequently established that Texaco discriminated against her, and she was awarded $465,000 in punitive damages.

 

Robin Paggi On the other hand, honesty, Hawkins versus Pepsico Inc., and this is a demonstration of brutal honesty, but even though I don’t endorse brutal honesty, it demonstrates how it’s better than deceit. Lisa Hawkins was employed by Pepsi and she was supervised by a woman named Sally Price. Hawkins claimed that Price engaged in various forms of racial discrimination against her. Hawkins said she and Price had a strained relationship that was unlike the relationship between Price and the white managers that Price supervised. Hawkins said that Price did not adequately inform her of her responsibilities and gave her instructions on scraps of paper. Hawkins’ suggestions at meetings were often criticized or laughed at by Price. She said Price rarely praised Hawkins in public. Price failed to acknowledge Hawkins’ input and criticized her for not being a team player. And Hawkins thought all of this was different than how Price treated her white peers. Price also told Hopkins that she was not of the caliber to be a manager, and Hawkins never heard Price say that to interfere her white coworkers. What Hawkins disputed most vigorously was the accuracy of Price’s evaluation of her job performance. For example, Price rated Hawkins below target in several areas and criticized her even in areas where Hawkins received a satisfactory grade. So Hawkins alleged that Price’s assessment of her performance was excessively negative and was based on false information. And Hawkins also claimed that Price’s feedback was in some instances too general and failed to elaborate on the positive aspects of Hawkins’ performance. So Hawkins met with Price and the human resources director for a performance review, and they discussed Hawkins performance, her difficulties with Price, and the possibility of Hawkins seeking employment somewhere else within Pepsi. Shortly thereafter, Hawkins was fired, said there was no other positions available, or—actually she wasn’t fired, she said her position was being eliminated—there were no other positions available, and so she was terminated. So she filed a discrimination claim, saying that Pepsi did not protect her from a hostile work environment and she was wrongfully discharged because of her race and in retaliation of her complaints of racial discrimination. Hawkins also accused Pepsi of intentional and negligent infliction of emotional distress. She did not win her lawsuit. The court said, “There was evidence that suggested that Price was tough and she was demanding, but the types of difficulties that Hawkins had with Price was because of being a poor performer.” And this kind of thing routinely happened in employment relationships. “Without the freedom to criticize performance, an organization can’t function,” the court found. So the moral of the story is be truthful in your performance evaluations, even if the truth hurts.

 

Now, I want to talk a little bit about the claim of a hostile work environment, because a lot of people tend to think that their supervisor being mean to them creates a hostile work environment. And that’s not necessarily true. A hostile work environment is created when behavior is directed at someone, or about someone, because of being in a protected class, such as their race. And Hawkins said her supervisor was mean to her, especially on her performance evaluation because of her race. But the court said that Price criticized Hawkins because she thought she was doing a bad job, and that’s part of being a supervisor. So that’s one of the things is that sometimes supervisors shy away from being honest because they’re afraid that they will be accused of discriminating against somebody when they are honest. But this court case demonstrates that especially if you have the documentation to back up your claims of poor performance, then that will be seen as the reason for the termination. Now, I’m not endorsing Price’s style of supervising, and I’ll be discussing how to provide effective feedback in a future webinar. So right now, I’ll just say that feedback should be direct, so that people know what you’re talking about. It needs to be specific. And that’s one of the things that Hawkins said, is that she wasn’t given specific feedback on her performance. It was very general. So it does need to be specific. And then it needs to be helpful, telling people how to improve, because when you’re in a supervisory position, that’s primarily your job is to get the best performance out of the people you supervise. And so when you’re giving them feedback, it needs to be designed to inspire them to perform, not to inspire them to file complaints or lawsuits.

 

Robin Paggi So now we’ve got some disciplining and terminating issues, so let’s go on. And talk about deceitful disciplining and terminating issues. Now, this happened in the case of Staub versus Proctor Hospital. And Staub was a member of the Army Reserve, and you might be aware that when someone is in the Army Reserve, they have to devote one weekend a month, or two to three weeks each year, drilling and training so that they’re prepared in case they get called to duty. Apparently, Staub’s immediate supervisor, who was named Janice, and her supervisor, who was named Michael, objected to Staub taking the time off to go train. And according to court documents, Janice scheduled Staub for additional shifts without notice, so he would pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserve. So that’s allegedly what she said. She also told one of Staub’s coworkers that Staub’s military duty had been a strain on the department and asked the coworker to help her get rid of him. Court documents also state that Michael, Janice’s supervisor, said that Staub’s military obligations consisted of a bunch of smoking and joking, and a waste of taxpayers’ money, and that Michael knew that Janice was out to get Staub. Staub was issued a corrective action disciplinary warning by Janice for violating a company policy. Staub said the company policy didn’t exist, and if the policy did exist, he didn’t violate it. And then Michael then informed the Vice President of HR that Staub had violated the corrective action and should be fired. So relying on Michael’s accusation and a review of Staub’s personnel file, the VP of HR terminated Staub’s employment. Now, this is very important, because this was a court case that had something a little bit new and demonstrated why HR doesn’t just do what supervisors ask HR to do. HR needs to do their own looking into things in order to make sure that they are making the right recommendation. So, this is what happened. Staub was fired. He sued the hospital for violating the Uniform Services Employment and Reemployment Rights Act—that’s called USERRA for short—claiming that his termination was based on his supervisor’s antagonism toward his military obligations. He didn’t accuse the VP of HR who fired him for being antagonistic. He said she was influenced by people who were antagonistic. Now, the jury found that Staub’s military status was a motivating factor in the decision to fire him, and awarded him a little under $60,000. But the Court of Appeals said, because the antagonistic supervisors were not the ones who fired him, it was the HR person who did, he couldn’t claim an adverse employment based upon USERRA. Well, this went to the Supreme Court. The Supreme Court reversed that decision, essentially saying it doesn’t matter whether the person doing the firing is motivated by anti-military feelings. What matters is that the person doing the firing is influenced by others with anti-military feelings, and this was something called the Cat’s Paw Claim, is that you’ve got a cat who’s reaching around something to get something, and that’s essentially what it was, that the HR manager was reaching around the supervisors in order to get Staub. And so, that was a big deal when this was decided, is that when you are in HR, you have got to make sure that when you’re firing people based upon supervisors’ recommendations, that you find out exactly what the situation is, because if you don’t, that can cause a lawsuit for your employer.

 

Robin Paggi So, here’s something else to consider. Sometimes people, especially supervisors, are not aware of employment laws, like USERRA. And so one of the things that you need to know, or to let people know, if they are involved in making employment decisions, that in general, determining whether to hire, promote, train, or fire people based upon their future, current, or past service in the military is illegal. Second, again, if you’re firing people based upon your supervisor’s recommendations, make sure you know why they want the firing, and look into, don’t just look at corrective action and go, “OK, that looks good,” look into the situation a little bit more.

 

So be truthful when disciplining and terminating, especially in your documentation. And again, I discussed this in last week’s webinar. And once more, I’ll make this plug, if you missed last week’s webinar, we’ve got it on our website. All of our webinars are recorded and you can view them at any time. But, when I talked about the importance of discipline, I mentioned this case, Coleman versus Blockbuster Inc, and why it’s so important to be honest and to make sure you document everything. Tirah Coleman was a manager of Blockbuster, and she was unsuccessful in her discrimination suit against Blockbuster because the company was able to demonstrate through its documentation that Coleman was fired for poor performance and not because of her race. So here’s the story, Coleman received two corrective action reports for her store’s poor performance, and she received a third corrective action report for missing a mandatory meeting that stated on it, “Failure to improve will result in termination of employment.” Shortly thereafter, she closed her store early and left the premises because of a medical emergency with her son, which sounds like a really good reason, but she violated the policy once again. That’s what she was terminated for. After she was terminated, she filed a suit for racial discrimination. And the court that heard the case found that Blockbuster came forward with solid evidence to demonstrate that the reason for Coleman’s termination was dereliction of duty, and it ruled in the company’s favor. So once again, demonstrating why documentation is so important in defending termination decisions.

 

Now, when you were disciplining, it’s critical to apply all rules and standards equally. I mean, that’s just the right thing to do. But also, if you don’t apply rules to standards equally, that can lead to a discrimination lawsuit. For example, let me tell you about this case, Madden versus Chattanooga’s City-Wide Service Department. Madden worked as a crew worker for the Service Department and while he was cleaning a ditch in a rural area of Tennessee, he was caught by a supervisor setting off firecrackers, and he was fired for that because you’re not supposed to do that while you’re at work. He sued for racial discrimination. At the trial, Madden introduced evidence of at least two specific incidents in which white employees set off firecrackers or similar devices without facing discipline. Madden was not white. He also introduced evidence that firecracker use was common among department workers and the court found in his favor. They said that the department terminated him because of his race, and so he got lost wages of almost $40,000, emotional distress damages of a little over $30,000, and future lost wages of about $52,000. So, it’s important to be fair and consistent with all discipline. Inconsistent disciplinary actions often lead to discrimination lawsuits. When you’re disciplining, don’t delay decisions. If you decide you want to fire someone, fire them, because if you don’t, sometimes something else happens and then you fire them and then that becomes a problem.

 

Robin Paggi So again, I mentioned this court case last week involving a terminated employee and she was terminated just after she disclosed to her manager that she was pregnant. The employee then claimed that she was terminated because of the pregnancy. She sued and the company claimed she was terminated because of her poor performance and that the decision to fire her was made three days before she disclosed her pregnancy. However, they didn’t fire her when they made the decision, and then they couldn’t produce any documentation that proved that they were going to fire her. So her case was allowed to be heard by a jury.

 

Another thing to make sure that you do is give clear instructions and warnings, such as the Coleman versus Blockbuster case that is higher up on the slide. Again, they gave Coleman clear instructions and warnings of what would happen if she continued to violate company policy. And so, that’s the best example I’ve got of that one.

 

And then, finally, listen to employee’s side before taking action against him or her. Again, that’s the right thing to do to make sure you’ve got the entire story before you do anything. But it also can help you if you get sued and here’s the court case. Richard Cotran sued his former employer, an insurance company, after the company fired him following an investigation of allegations that he had sexually harassed two female employees. The company’s investigation included interviews with 21 people, including Cotran. Now, so they do the investigation. They think he sexually harassed these two females, so they fired him. Then, he sued. The jury decided that Cotran did not sexually harass the two female employees and therefore the company should not have terminated him, and they awarded him $1.78 million. An appellate court overturned that verdict, ruling that the company conducted an adequate investigation, including interviewing Cotran and allowing him to tell his side of the story. And based upon all of that, they had a reasonable belief that Cotran had engaged in sexual harassment. So this is great news for employers because it demonstrates that a good-faith determination that an employee engaged in misconduct is recognized as a legitimate basis for termination. You don’t have to prove that somebody did something. You just have to have a thorough investigation and base your decisions upon the findings of that investigation. However, don’t think that I just said that you have free rein to terminate accused employees as long as you do an investigation. Again, they thought that he had sexually harassed somebody. That’s why they fired him. So it emphasizes the importance of conducting and documenting thorough and unbiased investigations and making decisions based upon that.

 

Providing references. Common advice for employers about giving information about former employees is to not do it. However, we’ve got an employer, Five Unit School District, that gave a recommendation for wrong reasons and they didn’t need to in the first place. So, what happened in this case? Unit Five is a school district in Illinois, and it was sued by two students and another Illinois school district for failing to disclose information about a former teacher named John White. John White was forced to resign from his teaching position with Unit Five, so he was forced to resign. And then he went to another school district and he did some inappropriate things with students and they sued Unit Five. So, I’ll tell you more of the story. White was fired because of inappropriate behavior with a fifth-grade girl and he had pornography on his classroom computer. Despite the fact that he was forced to resign, Unit Five gave him a letter of recommendation that he then took to the Urbana School District who hired him. Now, why did they give him this letter of recommendation? Part of it is because they allegedly wanted to get rid of him. And so they give him a letter of recommendation, get him out, and he goes off to someplace else. Now when he went to the new school district, he molested some students there. And so, both school districts settled lawsuits with the victims. However, the new lawsuit was filed by Urbana students against Unit Five for passing White to Urbana with the knowledge that he had sexually abused students and wrote him a letter of recommendation. Lawsuit was originally dismissed; however, the appellate court reversed, saying, “Unit Five and its administrators could have refused to prepare a letter of recommendation.” They could have warned Urbana of the potential danger. They could have reported the abuse, which is mandated. Therefore, sending off an employee who engaged in inappropriate behavior with a good reference can lead to a lawsuit. So don’t do that. One of the things that the court said is, again, they could have warned Urbana about the potential danger, and so do you have to warn employees, potential employees, or employers about things that employees have done while they worked for you? Are you required to tell potential employers if they call you about the things that I’ve done? No, you’re not legally required to, except if they committed an act of violence. But if you feel that is your moral obligation to tell a potential employer about the things that employees did while employed with you so that you can warn them, you are protected. No federal law protects, or prohibits, employers from providing truthful information about a former employee, regardless of whether the information is good or bad. So that’s one of the things that people often say to me, is that if we say anything bad about the employee, we will get sued, and they do not understand that they are protected under federal law. And even some states have their own laws. I mentioned I’m in California and California has a civil code that says employers are protected from a slander or libel lawsuit when they provide dates of employment, position held, and whether the former employee is eligible for rehire or not. But in general, if employers are providing true information, especially that can be substantiated through documentation, they are protected from defamation claims.

 

Robin Paggi What about providing a good reference for employees who deserve it? I think that you should. But, if you’re going to provide good information, you need to talk about the bad things as well. So it’s not misleading. No one is perfect in everything that they do and if you are just talking about all the good things that an employee does without mentioning of the bad, then that is not a fair, balanced account. And again, you’re protected if you provide information that is true.

 

So, one of the things that I have learned is that one of the things that employees often lie about is the dates of employment. And so, even if you only find out how long someone was employed, they often tend to lie about the position that they held. They elevate it and say it was more than it was. And so employers can answer information about position held and eligible for rehire. And you don’t have to even say why somebody is not eligible. Just saying that they’re not eligible is one of the things that a potential employer can take away without any other information. If the dates of employment don’t match, if the position held doesn’t match, if the person is not reeligible for hire, that’s enough information to base an employment decision on. So if you only want to provide that information, it still is good, valid information and you are protected from any kind of claims. Here’s just a couple of other pieces of advice about providing references. One thing, one person should be in charge of providing references. And so that’s one of the things that supervisors should be told, is that if somebody contacts you about providing a reference for somebody that you supervised, route it to HR. So you shouldn’t have various people out there providing references. You should have one person providing references or just even validating dates of employment, position held, eligible for rehire or not. So that’s one thing is make sure that only one person is handling those types of things. Provide specific guidelines for that person on exactly the information that they are allowed to release, and have former employees sign a waiver to release the information so that you’ve got that covered as well and you keep that information on hand.

 

Robin Paggi So, in closing, dishonesty is a fast track to employee disengagement. Again, if you lie to me, how will I ever trust you? So, if I don’t trust you, I’m not going to perform as well and might possibly disengage. And finally, when you’re in an HR or a supervisory position, you’re a leader and leaders lead by example. And trust is the thing that holds relationships together. So you might be brutally honest and you might make mistakes, but if people can trust that you’re going to be honest, then those things are usually forgiven. The truth might hurt, but deceit will hurt you even more. And I hope these lawsuits have demonstrated that. All right. That’s the information I have for you. Do you have questions for me?

 

Emmet Ore All right, thanks, Robin. We do have a couple of questions here. First one is: Is there such a thing as being too honest?

 

Robin Paggi Well, I think one of the things, there are some things that don’t need to be said. OK, so, that’s one of the things to determine before you say something about anything to anyone is, “Does this really need to be said? Do I need to tell you I don’t like your outfit? Do I need to tell you that haircut really doesn’t work for you?” All of those types of things. Do I need to say those things? And if the answer is no, then sometimes it’s better just not to say them, unless somebody specifically asks you about them. And as I mentioned before about brutal honesty, I don’t endorse brutal honesty. And I’ve had to work really hard to not be brutally honest, because that was one of the things that characterized my communication earlier in life. Brutal honesty is often hurtful and unnecessary. And so you are telling people the truth, but it’s done in a way that ends up hurting them unnecessarily. And so that’s one of the things that I’ve had to work on, and maybe some in our listening audience have to work on, too, is how to say things in a way that are truthful, but that are not hurtful because of their words. And sometimes people who are brutally honest will defend themselves by saying, “Well, it’s the truth”. Well, even though it’s the truth, things can usually be said in a way that don’t hurt as much. Even when you’re terminating somebody, even when you’re disciplining them, even when you’re telling them that they have body odor or things that supervisors and HR have to tell people sometimes. You can do it in a way that still is compassionate, and kind, and helpful, and that’s the most important thing. So, really, you want to know who you’re talking to. With some people, you need to be much more careful with your words. Other people, you can just say it and it’s not going to bother them that much. And you need to choose your timing. Timing is a big one when it comes to when you’re telling people things that they don’t want to hear. But always try to be kind and helpful with your honesty. And if you have that intention, then usually it comes out much better than it would if you are just saying it without any thought to it.

 

Emmet Ore Perfect. All right. Should employers tell employees why they’re being terminated?

 

Robin Paggi Yeah. And I discussed this last week, and rule, or things that I had said, is that there are some employment attorneys who say, “No, do not tell employees why they’re being terminated because then they just try to use that against you in some type of claim against you.” But then there are employment attorneys who think that, “Yes, you should tell employees why they’re being fired so that one, they can learn from it, and two, so that they don’t try to make up reasons.” So, that’s one of the things when we don’t have information, we often make up things. And so you fire somebody and you don’t tell them whatsoever why they’re fired, they begin to think, “Oh, well it is because of my race, or because of my gender, or because of my sexual orientation, or because of my age.” And those are all protected classes that I mentioned. You can’t fire people because of being in a protected class. And so if people don’t know why they’re fired, they usually think, “Well, it’s because of one of those things,” and that’s when lawsuits often result. If you were really paying attention while I was citing these lawsuits, most of them ended up in racial discrimination claims. And that’s what happens when people are fired a lot of times. Even when you do tell them why they’re being fired, it ends up in a discrimination claim. And so, then you have to demonstrate you did not discriminate against that person. So, I’m of the mind that when you do terminate somebody, it’s usually better to tell them why they are being terminated for cause, if it’s a legal reason, because that way that doesn’t put doubt in their mind about why and the reasons that they might make up and then a claim that might follow. Also, in some states, like in California, we are required to give paperwork to employees that we terminate that says that we are changing the relationship, and it allows us the opportunity to put down whether it’s a termination, or a layoff, or a resignation, or what have you. And some employers say that they’re laying off people instead of terminating them, because they, again, don’t want to have any issues. It’s just easier to say you’re laid off and that way we don’t have to deal with the drama of termination. However, then employees, the terminated employees go to file for unemployment, and if the employer doesn’t want to pay for the unemployment and the unemployment office reaches them because they’re denying the claim, then the employer trying to say, “No, they were terminated for cause” as opposed to a layoff isn’t going to work well, because then unemployment wants to know were you lying then or are you lying now? So that’s one of the reasons. Also, it’s important to be honest in terminations, why I advise it, is because laying off a person usually allows them to get unemployment. And if you don’t want to pay that unemployment, then you need to be honest in your reasoning.

 

Emmet Ore Awesome. OK, in Massachusetts, what is the law for at-will firing and how can we prevent from being sued even if we have documentation?

 

Robin Paggi Well, I’m not in Massachusetts, so I do not know. I’m in California. But, so that’s one of the things is that you do have to find your state’s information and make sure. But for the most part, most employers are at-will. And most employers are allowed to fire people for any reason or no reason as long as it’s not an illegal reason. So that is countrywide. And even when you have documentation that demonstrates that you gave people every opportunity to improve before you terminated them because they just couldn’t do it, that doesn’t mean that you won’t get sued. You might not be successfully sued. But, that unfortunately, is just how people are now, pretty litigious. And if things don’t go their way, they want somebody to pay for it. And so, you can do everything that you can possibly do to do it right and still get sued or a claim filed against you. So, I don’t know if that answered the question or not. Why don’t you read the question to me again.

 

Emmet Ore Here it is. In Massachusetts, what is the law for at-will firing and how can we prevent from being sued even if we have documentation?

 

Robin Paggi OK, so I kind of answered that, I think with my answer. But go ahead and look up in Massachusetts exactly what the laws are pertaining to your organization, or if you’re a client of ours, then you just reach out to your Client Resource Manager so that they can provide you with that information. And so that is one of the things, though, is that nationwide at-will usually is the same for every state. But you always want to make sure because every state has their own little intricacies.

 

Emmet Ore Great. That’s all the questions we have. So, thank you all for being here today. And thank you, Robin, for presenting. And we’ll see you all next time.

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