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FMG Law Blog Line

If The Oscars Can Fix It, So Can You

Posted on: February 27th, 2017

By: Mary Anne Ackourey

By now, you probably have learned about the big mistake at the Oscars a few weeks ago. Maybe you were watching it live, or, instead, like me, catching it the next morning on your phone or desktop. Wow, that was a big screw up, and to the outside eye, totally preventable, but we all know that it happens. Even in Hollywood. But, they fixed it, and while PricewaterhouseCoopers spent days trying to figure out how the presenter got the “wrong envelope” (as if there is a  meaningful answer other than human error), the right movie got the award, and so life goes on.

On my way to work, this got me thinking about how we, as employers, sometimes get it wrong and where that leaves us when a decision is challenged. Terminations, leave decisions, conclusions in investigations… Usually it is not as simple as  giving the wrong envelope, like at the Oscars. More likely than not, we just do not have all of the facts. We try to make decisions soundly and efficiently, but  key items sometimes get overlooked. That is business. From a risk prevention strategy, though, there are two  keys points: The first  is to prepare for that possibility. Is there anything else we as employers should consider when making the decision at hand? While this is not a one-size fits all approach, often,  it makes sense, even when lowering the boom in a termination situation,  to include ( in writing) a directive to the employee “ if you believe there is any other information we should consider, please let us know immediately.” I  find this particularly helpful in an investigation situation or in a complicated employee medical leave case.  In most situations, it shores up for us that there likely is not anything else out there that should have been considered or that we missed. If there is something more, and the employee does not mention it until litigation, even after we ask for it  in the termination letter,  then that usually becomes more his or her problem than ours. But, if there is something important, it usually is better to know now vs.  later – particularly  after spending a lot of time and money wrapped up with an EEOC Charge or lawsuit.

That brings me to my second key point which is this: Fix it. If it turns out, like the Oscars, that there was a mistake, that we missed something that would change the ultimate outcome, then simply fix it. Imagine a situation where you have terminated an employee on leave for disappearing  but it turns out the employee is actually at work unbeknownst to you? Or you uncover text messages central to an issue you have reviewed, only after you reach your conclusion? This stuff happens. Don’t be reluctant to fix it. I often hear, “how is that going to look?” to which I usually respond, “how is it going to look if we don’t fix it?” From a risk management standpoint, the key is to prepare for it and, in the event of a mistake, fix it. Sure, we can stand by  our decision and sometimes even justify  it, but from a risk prevention standpoint, in most situations, this becomes high risk business. Just like giving out the wrong envelope.

For any questions, please contact Mary Anne Ackourey at [email protected].

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