Employers lose the majority of the cases that go to trial. Here are some of the main reasons why this is the case:
1. The jury pool – Very few jurors have ever held an executive or managerial position. As result, the jury box generally consists of people who will judge your company from the perspective of the employee, not the employer. Like many employees, they have an "all bosses are villains and all employees are victims" mentality.
2. Employers focus on justifying rather than taking responsibility – When we make a mistake - we should admit it. There is no justifying the fact an employee hired on to bring value to your company is now suing you.
3. The failure to document – As every employment attorney tells their client: document, document, document. Judges and juries expect to see proof of poor employee performance – in writing.
4. The company has disciplined inconsistently - Whether the company is big or small, the lack of consistent treatment is guaranteed to generate juror mistrust.
5. Somebody gets caught lying – Employers will often ignore, bury or deny conduct they consider potentially damaging. Disclosure of this conduct by plaintiff’s counsel will prove devastating. Catch someone lying just once and you can instruct a jury that everything they say lacks credibility.
6. They never received or signed the agreement – The employment contract, the confidentiality agreement, the employee handbook, and the mediation and arbitration agreement are nowhere to be found in the employee’s file – if they exist at all.
7. An overly aggressive approach – Whether on the plaintiff or defense side, jurors dislike an overly aggressive presentation of the case. They are particularly sensitive to an attack on non-party witnesses.
The fact is, there are many more ways to lose at trial, and employers are doing it all the time. Even if you “win” one of these cases you lose. And when you lose - you can lose real big. The best defense against these claims are strategies and tools designed to prevent the filing of claims in the first place!
How The HR That Works System Prevents Lawsuits While Increasing Productivity