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Is There A Moral To These Stories?
As is so often the case, both of these lawsuits boiled down to "my word against your word" battles. In the Olsten litigation, the issue was whether Fredrickson was better qualified to manage the consolidated office or, at the least, whether Fredrickson had the qualifications to fill another position at Olsten. Olsten said one thing, and Frederickson said another. In the Advanta litigation, the issue was whether Riseman had been offered another executive position with Advanta, or whether he was forced out after complaining about age discrimination. Again, a "my word against your word" dominated the courtroom. Now consider what might have happened if the Olsten and Advanta executives and managers had been trained to recognize the "red flags" inherent in these situations, and if they had been further trained to develop the ammunition necessary to clearly win the "my word against your word" battles that were eventually lost.
Olsten executives and managers, if properly trained, would have had in effect a meaningful employee evaluation procedure that would have created a file documenting Fredrickson's management failures, as they occurred. This could have provided ample evidence that Olsten did not make its decisions based upon Fredrickson's age but, rather, on her qualifications. As it played out, however, Fredrickson's lawyer could make Olsten look foolish. You claim that Fredrickson was not qualified and, yet, she had been a manager of the office for 13 years, correct? Is there anything in her file that shows that she failed to do a good job during that entire time? Isn't it true that she received raises each year? Isn't it true that she was never disciplined or reprimanded in any way? Are you asking the jury to believe that you could not find any position in the company for this long term employee, who has a spot-less file? Are you asking this jury to believe that the fact that she was 68 years old did not enter into your thinking?
In the Advanta case, think of what might have happened if, while Riseman was allegedly being disruptive, an Advanta executive had sent him a memo or, at least, prepared a file memo describing the problem. Those kinds of memos usually carry a lot of credibility - they are prepared at a time when there was (at least arguably) no litigation contemplated, in circumstances where the company was trying to solve a problem. Think what might have happened if, at the same time, an Advanta executive recognized the need to confirm Riseman's alleged resignation (as opposed to Riseman's claim that he was terminated). When the time for trial arose, Advanta would have convincing, documentary evidence supporting its version of the facts, and Riseman would only have his self-interested memories, which by then would have been years old. In the battle between documents prepared while events were unfolding, and subsequent courtroom recollections, the documents win almost every time.
We have covered these topics in Avoiding Lawsuits before. See, for example, the Avoiding Lawsuits issues of August 1, 2000 (the "My Word Against Your Word" problem), September 1, 2000 ("Doing The Right Thing Is Not Enough"), and October 15, 2000 (the "My Word Against Your Word" Problem - A Continuing Series).
The appropriate kind of training allows executives and managers in these situations to recognize the potential liabilities before it's too late, and teaches them how to either avoid the problem altogether, or to document the fact that they did the right thing in such a way as to dramatically increase the odds of prevailing in a "my word against your word" court-room battle. The alternative; do nothing, take your chances, and face the same prospects that Olsten and Advanta faced. How lucky do you feel?
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
