Ed. note: Please welcome Evan Gibbs, one of Above the Law’s new labor and employment law columnists.
Let’s face it: making decisions can be hard.
Should you go to that networking event or go home and binge on Netflix? Should you grab lunch from that hip new place next door or eat the boring salad you brought from home?
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And those aren’t even hard decisions with serious consequences. What about the big ones at work? What if a decision you made makes you look really incompetent to your boss? What if a decision of yours costs a client the win in a lawsuit? If and when you find yourself in one of these situations, will you boldly take ownership of your decision, or will you hedge and try to shift the blame to something (or someone) else?
When things start going bad, people generally hedge and try to shift responsibility for a decision completely or partially elsewhere. Whether done consciously or not, this is seemingly an effective way of avoiding blame for a negative outcome. After all, no one wants to be the one who made the decision that cost the company a six-figure jury verdict.
Employment lawyers deal with this issue every day. This is because pretty much every employment case comes down to the motivation behind a decision or a series of decisions that impacted someone’s job. Maybe we’re trying to figure out why a supervisor fired a certain employee or didn’t give someone a promotion. Or maybe we’re trying to figure out why someone in HR denied someone protected leave.
This is absolutely critical in employment cases, because judges want to hear from the person who made the decision when they’re trying to decide whether the law’s been violated. And, just like anyone else, judges get suspicious when no one fully takes ownership of a significant decision. And when we’re talking about the reason someone lost their job (which is a significant life event for most people), courts expect to hear from the person who definitively made the decision and to find out what their motivations were.
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Here’s an example. In Roehrig v. W.G. Tomko, Inc., 2016 U.S. Dist. LEXIS 63045 (W.D. Pa. 2016), an employee sued his former employer claiming he was fired because of his age. The employer argued that the employee was terminated not due to his age, but only because of his poor performance and inappropriate work behaviors (like sleeping on the job and wandering the hallways). Only problem was, the Court didn’t feel like anyone at the company took ownership of the decision to terminate the plaintiff.
So, when employer moved for summary judgment, the Court was having none of that. The Court explained that “Defendant’s inability to identify precisely who terminated Plaintiff supports denying Defendant’s summary judgment motion.” Yikes.
To a non-employment lawyer, this might sound crazy. You might think that pinning down the one who made the decision at issue would be simple. Who signed the termination form, sent the email, or delivered the bad news? There’s your decision maker, right? Not so fast.
Typically, from the former employee’s perspective, their supervisor is the one who made the decision. After all, that’s the person who (nine times out of ten) communicated the decision to the former employee.
From the supervisor’s perspective, however, he or she couldn’t fire the employee without going through his or her immediate supervisor and human resources. The supervisor therefore believes it was a joint decision with his or her boss and HR.
But, from HR’s perspective, their role is only to advise about the risks of a particular decision – not actually make the decision. Then, from the supervisor’s boss’s perspective, he or she simply wants to provide support and guidance to their subordinate during the decision-making process.
To make things worse, once the supervisor’s being questioned by outside lawyers, they’re pretty nervous and worried that they’ve done something wrong somehow and are going to be in hot water if they fully take ownership of the decision. So they hedge. They spread responsibility for the decision around like jam on toast.
The winning cases (for management-side lawyers like me, anyway) are the ones where the decision maker confidently owns his or her decision, clearly articulates the reasons for it, and dares anyone to say otherwise. The cases where everyone’s doling out responsibility are the ones in which I know we’re going to have an uphill climb.
How can we all be like the first group of people, confidently owning our decisions even if they turn out to be unpopular? First, do your very best work – every time. Dig deep and make it good. Second, ask questions and make sure you’re on the right track. Third, fully understand the bigger picture of what you’re working on and how you and your work on a given project fit into it.
Then you can get back to making the big decisions, like whether to re-watch Lost (again) or start some new show you know isn’t going to be as good as Lost.
Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)