Employers Take Note: A Little “Sorry” Goes a Long Way

Employment litigation involves high-state emotions and personal investment.  Delaware employers who find themselves in employment litigation can utilize the highly successful and very accessible mediation services of our two federal court magistrate judges.  I'm sorry

The success rate of mediation can, in large part, be attributed to the value of a face-to-face meeting of the parties.  Facilitated by two highly regarded judges who have the ability to coax the parties into reasonable positions, it is it not uncommon to reach settlement in a case once the emotions have subsided.  But what if there was a way to cool emotions before litigation ever ensued? 

The Workplace Fairness Blog picked up an article from the N.Y. Times, Doctors Say “I’m Sorry” Before “See You in Court.”  According to the article, there is a trend in the medical profession to disclose medical errors more promptly, followed by a sincere apology and fair compensation.  The article indicates positive results with one hospital reporting a decline in existing claims and lawsuits from 262 in 2001 to 83 in 2007.

The post wonders whether this “full disclosure and apology” policy could or should be transferred to the employment context.  In other words, would a heartfelt “I’m sorry” prevent litigation brought by employees?  The concludes that it likely would. 

How to Cut Off Liability With a Face-to-Face Meeting

I concur.  Often, I will get a call from a client worried about an employee who, it is suspected, may be considering a lawsuit.  When I inquire what happened or is happening that would cause the employee to consider suing, there usually is a clear and definable answer.  Maybe the employee was passed over for a promotion that she feels she deserved, for example.

As we flesh it out, there are often good reasons, from the employee’s perspective, to feel slighted.  Employees don’t get all of the information that go into any given decision.  So, based on the information that they have available to them, the situation very well might seem unfair or biased. 

If that is the case but the employer has legitimate, articulable, and, preferably documented reasons for the decision, then we’re off to a good start.  But we’re not at the finish line because those legitimate reasons are unknown to the employee.  So what’s an employer to do?

The answer is not necessarily to disclose every justification to the employee.  There are plenty of reasons that you may not want to share your decision-making process.  For one, it might lead to a sense of entitlement among direct reports.  And you don’t need a line of employees demanding to know “why?” every time a decision is made that they don’t like. 

Provide a Meaningful Opportunity to Be Heard

But there are middle grounds.  I counsel employers to, at the least, bring the employee in and ask them what’s going on–and then listen to the answer.  Sometimes, just feeling that you are being heard is enough to put the employee back on your team. 

Once they’ve had an opportunity to say their piece, the manager should acknowledge that the employee’s position is a sincere one (though not necessarily correct or justified, but at least sincere).  Then reinforce the employer’s commitment to the employee and his or her continued satisfaction.  You hired him because you believed in the valuable contribution he makes to the team and this has not changed. 

I don’t know that I’d call this an “apology.”  But I would call it confirmation of commitment.  And I think that goes a long way.  Just a confirmation that you are still on the same side. 

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