Which Departing Employee Will Sue You?
by William S. Frank, President/CEO of CareerLab®

Outplacement on Keyoard
Dirk Biermann is a shareholder in Biermann & Fretz, P.C., a Denver firm practicing employment law. Mr. Biermann recently reviewed his past cases and found 13 characteristics and circumstances common to lawsuits, EEOC charges, or threats of litigation.

Bernie Siebert is a partner in Sherman & Howard, and Manager of their Labor and Employment Department. Sherman & Howard has twenty-six lawyers who focus exclusively on management side labor and employment law. I asked Mr. Siebert to comment on Mr. Biermann's categories, and add his thoughts.

Both attorneys agree that the person who sues, files EEOC charges, or threatens litigation is likely to have some or all of these traits:

  1. An Opportunist
    An opportunist is someone who may take the easiest path, not necessarily the right or morally correct path. And it's often easier to file legal charges than to take charge of one's career, to seek additional training, or to launch a job search.

  2. Disgruntled with Work or Life
    Often these people are unhappy. Mr .Siebert says, "They're naysayers and fault-finders. They never get with the program. They're the last ones to get on board for any new idea, new product, or new technology."

  3. A Long-term Employee: Five Years or More
    Because they've been around a while, they feel the company owes them. "I've given them the best years of my life," is a common attitude. "When you let them go in frustration, they feel they've been wronged," Mr. Siebert says.

  4. An Average Performer, Often With an Excellent Written Record
    Their performance has been average, but often punctuated with what Mr. Siebert calls "a panoply of problems like absenteeism and low productivity." These are marginal performers, but they've often mistakenly been given excellent performance appraisals, usually by a weak or non-confrontational manager.

  5. Stuck or Peter-Principled
    They've been in the same job for a long time and haven't updated their skills. Technology has passed them by. "They're the mediocre employee, the person you've carried: not good enough to promote, not bad enough to fire," Siebert says.

  6. Working Under New Supervision
    They functioned well in the past because their boss favored or protected them. But now they have a new boss, or there's some other change in the hierarchy. In any case, they are placed under additional demands which they are unable or unwilling to accept.

  7. The Subject of a House Cleaning Reorganization
    If they go out the door with a number of other employees, they still see their case as different and special. Often they feel the company was out to get them in the layoff, regardless of what the facts might be.

  8. Unwilling to Accept Criticism or Responsibility
    No matter how many times you critique them, confront them, discuss performance issues, or threaten them with dire consequences, they simply don't hear you. They see their actions and behavior as completely justified. They feel that they're right and everyone else is wrong. As one HR Manager says, "The only river is denial."

  9. A Victim of a Corrective Action Process
    They've repeatedly been warned that their performance is substandard, yet when they're terminated, they're surprised. You'll hear phrases like, "Why didn't anyone warn me? No one told me this was a problem. If I'd realized it was this serious, I surely would have done something about it." Feeling surprised by their termination, these people are likely to be incredibly angry.

  10. Unable to Adapt to the Needs of the Constantly Changing Workplace
    They've let the world pass them by technically. If they're wordprocessors, they still use PFS Write. If they're engineers, they're hand drafters, not CAD operators. Even if your company offers training and tuition reimbursement, they haven't kept up with the times, and they have a million excuses as to why it wasn't possible. "When they leave your organization, they know they aren't going to find another job at comparable pay," Mr Siebert adds.

  11. Helpless
    They seldom lift a finger on their own behalf. They don't take classes, and they don't initiate work projects. In fact, they're always rolling to a stop, waiting for someone else to tell them what to do next. They don't think for themselves. And even when they know exactly what to do, they need constant prodding and handholding.

  12. Sympathetic and Connected to a Significant Number of Co-workers
    They're sympathetic cases in that they may have a physical ailment, or other serious personal problem. Because they've been around awhile, they have many friends, and they are in a position to be disruptive long after they're terminated. They can sabbotage your business for months or years, simply be telephoning old friends during work hours and stirring the pot.

  13. Unable to See the Downside of a Lawsuit
    They have nothing to lose by filing EEOC charges or a lawsuit. They're not doing anything else anyway. They can simply wait and watch. According to both Mr. Biermann and Mr. Siebert, there's an oversupply of employment lawyers, and many of them are hungry and willing to take contingency cases. That means an ex-employee can sue you without any upfront costs. Disgruntled ex-employees like those profiled above have nothing to lose. Employers beware, and act accordingly.

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