From a juror's perspective

written by attorneys with the law firm of Lynn, Jackson, Shultz & Lebrun, P.C.

Regardless of a particular case's facts, employment litigation for the employer is a pain in the neck. Much of this litigation arises after an employee has been fired. The former employee alleges he was discriminated against on the basis of his race, gender, age, disability, or some other protected status. The allegations tend to paint the employer as callous, insensitive, and, in some cases, bigoted. While the truth may be that the former employee was lousy or engaged in acts that justified his termination, the employer enters an employment lawsuit as the "bad guy."

It is incumbent on you, therefore, to avoid irregularities in the documents and testimony you present in your defense. Many of those irregularities, however, originate at the time an employment action is taken, a document is prepared and filed, or an internal investigation is conducted. What follows are some employer do's and don'ts considered from a juror's viewpoint.

The paper trail

• Do read every document before it is placed in a personnel file. A terminated employee may ask for her personnel file within weeks or even days of her termination. Therefore, it is likely that she will have access to her personnel file long before litigation ensues. Consequently, you should maintain a structured and consistent process by which documents are placed in employees' personnel files.

• Don't put information regarding other employees in an employee's file. For example, many employers maintain computer-generated records that contain information about numerous employees on a single printout. Rather than limit printouts to one employee per page, many employers copy each computer page and place a copy in each individual employee's file.

  Those copied records not only may be a violation of the other employees' confidentiality, but they may also require the employer to delete information from the file before providing it to the employee. At trial, therefore, a jury is presented with documents that have been edited, whited out, or otherwise tampered with. Although it was perfectly proper for the employer to delete the information, the deletions tend to indicate to a jury that it has something to hide.

• Don't pull documents and information from a personnel file before turning it over. Oftentimes, a document is honestly misfiled in the wrong employee's file. Unfortunately, the employer usually does not discover that mistake until a former employee is demanding a copy of his personnel file.

  Rather than pull information from the file on your own, you should consult with counsel and let him or her make the decision based on relevance, privilege, or some other basis. If you pull documents without consultation, you are subject to examination at deposition and during trial regarding the contents of the file. To avoid committing perjury, you must respond that documents were removed.

• Do be honest on employee evaluations. Every juror is or has been an employee. They do not take kindly to employers discounting or denying the truthfulness of an employee evaluation.

Testimony

• Don't suggest information or answers to employees interviewed during the course of an internal investigation. The results on cross-examination of the interviewed employee could be devastating. Jurors look suspiciously at employees who testify on behalf of their employer (and in opposition to the former employee).

  A juror will presume that a current employee testifying on behalf of her employer will color her testimony in favor of the employer. After all, who wants to run afoul of one's bosses by testifying in a manner that they would not like? If on cross-examination the jury learns that certain answers were prompted or suggested by the employer, however, not only is the employee's testimony discounted, but the employer's credibility takes a tremendous hit.

• Don't take written statements that people sign and adopt in the course of an internal investigation. Such statements are subject to pretrial fact-finding under the trial court's rules and will have to be turned over to the employee's attorney.

  It is best that whoever conducts the internal investigation keeps notes of it, including interviews and document reviews, thereby allowing you to assert a privilege to protect those notes from pretrial fact-finding. The court may overrule the privilege and require that the notes be turned over to the employee, but if statements that employees have written and/or adopted as their own do exist, the court will order them to be turned over.

• Do involve your counsel in the investigation, regardless of whether litigation has begun. Your attorney's involvement in the investigation will likely fall within the parameters of the attorney-client privilege and/or the attorney work-product doctrine. Documents and information subject to those privileges cannot normally be turned over to a former employee. That is the best way to protect the confidentiality of internal investigations.

Bottom line

Remember, a jury is composed of individuals who are or have been employees and tend to sympathize with employees filing lawsuits. If you have not dotted all the i's and crossed all the t's, an insurmountable credibility gap can emerge. The prudent employer will consider how a jury will view even the most innocuous of its actions and find itself better prepared to withstand the ugliness of litigation.

Jane Wipf Pfeifle, attorney with Lynn, Jackson, Shultz & Lebrun, P.C., concentrates her practice in all areas of employer-employee relations law, especially employment discrimination and wrongful termination.
E-mail: jpfeifle@dtgnet.com

Jane is the editor of the South Dakota Employment Law Letter.