If there's one thing HR Pros hate, it's taking on unnecessary risk. After all, you're the one that thinks about legal things, and more often than not, you're the one left to answer for what happened when the lawyers come in. Could that by why there's so much CYA going on in our profession?
One of the things I've never thought about in my years writing as an HR pro is how lawyers on the other side (i.e., the ones that are suing your company) approach a deposition. That's why this post by John Hollon over at Fistful of Talent is a must share. John found a piece of video gold from an employee-side attorney that gives the playbook on his general game plan to take down HR pros in depositions.
I can't share the video since it's hosted by the firm and not on YouTube, but below is John Hollon's rundown of what the video says. Click through to see the video and also see John's analysis as a non-HR pro who's covered our industry at a high level for years:
Yes, I think HR would love to see how employment attorneys plan to wring information out of them.
In the video, Lawrence Bohm talks about the five (5) things lawyers should do when taking a deposition from HR:
- Get the Goods. From Bohm: “Instead of focusing on the bad things your client allegedly did, always start your deposition with the human resource professional, to have them point out the good things that your client has done. Have them go through the performance evaluations were they talk about your client doing a good job. Have them explain that putting an employee as “meets” or “exceeds expectations” is an indication that the employee is doing a good job. … Make the human resource professional agree with you on the record about the good things that your client did to contribute to the workplace.”
- Paper Policies. From Bohm: “Almost every workplace has policies but they don’t follow them. This is a gold mine for HR depositions. … Have the human resource manager confirm that these rules existed; and then have the human resources manager confirm that the rules were not followed. Then point out in a kung fu fashion that these rules could have been followed, but somebody made a choice not to follow the employer’s workplace rules.”
- Core Values. From Bohm: “The human resource professional more than anybody else in the business should know what that business’ core values are. Core values are really important to juries and HR should know them. If they don’t know what the core values are, what an amazing testimony you get when you ask the person in charge of 1000 employees, “What are the company’s core values?” and they look back at you say, “I don’t know.”
- “It wasn’t me!” Syndrome. From Bohm: “Take advantage of the “It wasn’t me!” syndrome that seems to plague every human resource manager I have ever met. And it’s because it usually is true! The human resources department is trying to keep these managers from doing very stupid and malicious things. And when the case happens where they couldn’t stop management from doing that stupid thing, the human resources professional is always ready to tell you under oath, “It wasn’t me!” You want to take advantage of that finger pointing.”
- Prevention. From Bohm: “This is the kryptonite of every human resource witness I have ever deposed. It’s on the subject of prevention. This is your ultimate kung fu power. Talk about what the human resources manager could have done, should have done, or did not do, to prevent the illegal conduct from happening in the first place.”
The bottom line to this other than it feels sleazy to everyone on our side? You can't protect yourself from all of this, but awareness of what the game plan is by you can raise your awareness and probably save you from looking like a total moron - because you're not.
Can sleazy lawyers still take what you say out of context? Of course - but when you're forced to give details that make you or the company look bad, being aware of what the other side is after can ensure you get context into the record of the deposition.
And getting context into the record is something that might save your reputation - or job.