March 2012

By: Alan E. Seneczko

“Lessons Learned” is a somewhat regular feature designed to provide employers with valuable tips to use when carrying out their day-to-day human resource functions and decision making.

Employers often chuckle at the long-clichéd phrase, “I’m from the government and I am here to help you.” Although not verified, I believe the folks on the other side of the table – the ones investigating charges against you or deciding your cases, are similarly bemused when employers boldly assert, “we at [ insert name] do not [ insert action being investigated]” and presume that their expression of indignation will end the case: “Thank you for your response, Mr. Employer. We are sorry to have wasted your time. Case closed.”

As silly as the above exchange seems, on all too many occasions over the years, I have been involved in claims, after-the-fact and usually alleging discrimination (but also unemployment, wages, etc.), where employers have responded to a charge or claim with simple, though impassioned, denials of the allegations against them – only to be shocked, shocked, when they receive a finding of probable cause, award of benefits or order of payment. Though it is not nearly as simple as it seems, here are some simple, though hard-learned, tips for responding to government agencies:

• The government will not take your word for it. Evidence wins cases. Denials do not. “Proof” requires facts which demonstrate that your denial means something.
• The likelihood of your success has no correlation to the degree of your manifest outrage or indignation. The government does not care how passionately you deny “doing that kind of thing,” how many times you deny it or how outraged you are at the mere suggestion of it. It cares about evidence. See No. 1, above.
• Inconsistency is not always the mother of evil. Investigators always look to see how you treated other non-protected employees who did the same thing – and then do a happy dance when they discover that you did not treat them the same as you did the protected employee. (Rest assured, the charging employee will always know who else did it and did not get terminated). This is not good. However… did you or, more importantly, the investigator ever consider whether other non-protected employees did the same thing and were terminated, and whether other protected employees did the same and were not. Sometimes evidence of inconsistency is not evidence of discrimination, but just the opposite: “Look, we may not be consistent in our decisions but, as you can see, our inconsistency has absolutely nothing to do with an individual’s [protected category].”

It is axiomatic that the best time to prevail in a claim is the first time – whether in an investigation or before an ALJ. Why, then, waste this opportunity with anything less than your best effort and/or evidence? Your word may be your bond, but it means nothing to the government.