A key management witness in virtually every employment case is the Human Resources representative who approved the contested employment decision; implemented the reduction in force; or investigated the plaintiff’s complaint of discrimination or harassment. Because of the critical role the Human Resources representative often plays in the events giving rise to the litigation, his deposition testimony can be outcome determinative at summary judgment. To help you make the most of this opportunity, experienced plaintiff’s employment attorney Tod F. Schleier offers these 10 practical strategies and tips for deposing the Human Resources representantive:
In All Cases
- Make it Known that Human Resources Serves to Protect the Company
Many Human Resources officials allow employees to believe that it is Human Resources’ job to protect them, when, in fact, the real job of Human Resources is to protect the company. Most people (plaintiffs, lay witnesses, jurors) are surprised to learn this. During the deposition, ask questions that allow the H.R. representative to testify on the record that he is a “company man” and that his job, at all times, is to protect the company.
In Sexual Harassment Cases
- Focus on the Employer’s Written Policy
The manner in which an employer’s Human Resources department handles complaints of sexual harassment can be critical to establishing employer liability. Thoroughly interrogate the H.R. representative on the terms of the company’s harassment policy; the manner in which it was communicated to supervisors and employees; and the type of training supervisors and employees received, if any. Your goal is to elicit testimony demonstrating that (a) the policy was not consistent with the mandates of the law; (b) supervisors were not adequately trained on the policy; and (c) the policy was not adequately communicated to the workforce or was not followed in the plaintiff’s case.
- Use the Authority of the EEOC to your Advantage
The EEOC has established basic elements for an anti-harassment policy and complaint procedure. (See http://www.eeoc.gov/policy/docs/harassment.html.) Use these elements to question the effectiveness of the employer’s policy. Does the employer’s policy include:
- A clear explanation of prohibited conduct;
- Assurance that employees who complain of harassment or provide information related to such complaints will be protected against retaliation;
- A clearly described complaint process that provides accessible avenues of complaint;
- Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
- A complaint process that provides for a prompt, thorough, and impartial investigation; and
- Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.
- Get the Investigation File
The employer may hire counsel to conduct the investigation into your client’s complaint of sexual harassment. Do not let the employer use counsel as a shield to hide the nature of its investigation. The investigation is still subject to discovery, and the attorney-client privilege may be waived if the employer raises the Ellerth/Faragher defense.
- Use the EEOC Enforcement Guidance to Challenge the Thoroughness of the Employer’s Investigation
EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999) contains a list of questions investigators should ask the complainant, the alleged harasser, and third parties in sexual harassment cases. Prior to the deposition, download the Guidance from the EEOC website (http://www.eeoc.gov/policy/docs/harassment.html). Did the investigator follow the EEOC Guidance and ask these questions? If not, why not?
- Use Discovery to Formulate Hypothetical Questions
If discovery has revealed information from other witnesses that the Human Resources representative did not discover or elicit during his investigation months or years earlier, ask hypothetical questions about that information. Ask whether that information could have had an impact upon his earlier conclusions. If the H.R. official admits that the additional or new information might have affected the results of the investigation, you can then argue that the employer’s investigation was incomplete and inadequate under Faragher/Ellerth.
In RIF Cases
- Focus on the RIF Process, Rather than Individual Selection Decisions
In most reductions in force, a supervisor will rate and rank the employees he supervised, and the Human Resources department will act as a “super-personnel department,” with the responsibility for making the final decisions and ensuring that the statistics will not expose the employer to liability. Therefore, your deposition of the Human Resources representative should focus on the larger RIF process, rather than on how and why each employee was selected for the layoff.
- Ask About Redeployment Efforts
Although an employer is not required to find other positions within the company for employees who may be laid off (i.e., to “redeploy” these individuals), ask the Human Resources representative about the employer’s efforts in this regard. The testimony may demonstrate that the redeployment process was really a sham and/or that discrimination occurred during this secondary phase of the RIF.
- Question the H.R. Representative’s Motives
Explore whether, as a result of the layoff, the Human Resources representative received additional compensation in the form of bonuses, stock options, a salary increase, etc. Money is a great motivator. This line of questioning may reveal a financial incentive and consequent bias on the part of the H.R. representative toward reaching the employer’s desired result – getting rid of older employees.
In ADA Reasonable Accommodation Case
- Compare H.R. Representative’s Testimony with Supervisor’s Testimony
In most cases, the supervisor will not make the final decision on accommodation, but will look to the Human Resources department for guidance and instruction. Therefore, in deposing the Human Resources representative, focus on broader questions related to the employer’s policy and the business justification for providing, or not providing, the accommodation. Ask the supervisor narrower questions focused more on the individual employee. Use any inconsistencies in the testimony of these two witnesses to the plaintiff’s benefit at summary judgment and at trial.
About the Author
This post is excerpted from Deposing and Examining Employment Witnesses by Tod F. Schleier. Mr. Schleier has practiced as a plaintiff’s employment lawyer for thirty-five years. Over the course of his career, he has litigated virtually every type of employment case against private employers and public entities in the state and federal courts of Arizona, including: wrongful discharge, whistleblowing and statutory retaliation claims; Title VII claims for sexual, racial, and ethnic harassment and constructive discharge; gender, religion, age and disability discrimination claims; First Amendment free speech and due process claims; and disputes concerning noncompetition covenants, trade secrets, wages and executive employment contracts. Mr. Schleier was named one of Arizona’s Top 50 Super Lawyers in 2009-2011 and 2013-2014. He is a Fellow in The College of Labor and Employment Lawyers. In 2013, he was inducted as a Fellow in the American College of Trial Lawyers. Mr. Schleier is a partner in the law firm of Schleier Law Offices, P.C. (www.schleierlaw.com) in Phoenix, Arizona.