Over many years as a manager and editor, there’s one thing I have heard over and over about HR professionals: They’re always worried about getting sued!
It’s true. In our ultra-litigious 21st Century society, with 1 attorney for every 300 Americans, people sue other people at the drop of a hat.
Human resource departments are especially focused on lawsuits since HR is charged with both making sure that employees comply with organizational rules and regulations, and ensuring that their companies stay up to date with all federal, state and local workplace laws too.
It’s a never ending battle of course, and out here in the People’s Republic of California, it’s even more of a challenge given that we have a State Legislature that passes around 1,000 new laws each and every year, with a great many of them seeking more regulation of the workplace.
A scary proposition for HR pros
Yes, legislators like we have here in the Golden State do all they can to keep employment lawyers very, very busy.
This is a scary proposition for HR professionals because a great many of the legal trends that start in California, no matter how frightening, dumb, or kooky, seem to spread to other parts of the country in short order.
Recently I had an attorney I know, a guy who sometimes writes on workplace legal matters, flag me to a video by a lawyer friend of his titled Human Resources Deposition Kung Fu.
If the title doesn’t grab you, know that the California attorney behind is it a guy by the name of Lawrence Bohm, an attorney who, according to Wikipedia, “is most noted for winning what is believed to be the two largest single-plaintiff employment verdicts in U.S. history.”
Yes, you might say that Bohm is the clean-up hitter on the employment attorney All-Star team.
His law firm, the Sacramento-based Bohm Law Group, only takes cases on a contingency basis, meaning that they only get paid if they win, so they’re incredibly motivated to win. In fact, the firm’s website says this:
Our mission is to help the workers of California. … We help employees fight for what is right. When the bad guys force us to trial, we break records. We’re still trying to figure out why so many employers test us in court. Oh well…we’re happy to continue.”
So, know that Human Resources Deposition Kung Fu is all about how to take the deposition of a human resources manager. Although the video is designed for other lawyers, it’s instructive to HR pros because it lays out the strategies that sharp attorneys use to squeeze useful testimony from HR leaders to use against their organization at trial.
As my attorney friend who flagged me to this dryly noted, “Since HR managers dread depositions, I think the HR community would really appreciate this video.”
5 things lawyers do when taking a deposition from HR
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.”
Yes, think of this as a warning
If you are an HR professional, or if you manage people at any level, this video is pretty scary stuff because it reconfirms what you probably know — that too many human resource departments aren’t always on top of their game, and employment attorneys know this and are ready to pounce on companies like that.
So, watch this video and take it as a warning. As much as HR hates hearing that they’re the compliance police, somebody has to stay on top of the dizzying number of new employment rules and regulations that are getting dropped on organizations every day.
If the good people in HR won’t keep up with it, who will?
John Hollon is an award-winning journalist and nationally recognized expert on leadership, talent management, and smart workforce practices. He currently works as Managing Editor at Fuel50, the career experience company built on thought-leading research and a game-changing platform that mobilizes talent, delivers career path transparency, and evolves the workforce for the future.
He is also a Contributing Editor at ERE Media, where he writes for recruiting website ERE.net as well as for TLNT.com, the popular talent management website he founded and edited for six years.
John was also Editor of RecruitingDaily.com, and before that, Editor-in-Chief of Workforce Management magazine and workforce.com.
During his long career he has held senior editing positions at two metro newspapers – the Los Angeles Herald Examiner and the Orange County Register — and was Executive Editor for the Gannett Co. at two statewide papers —Montana’s Great Falls Tribune and The Honolulu Advertiser in Hawaii. He also has deep experience in magazine and online publishing, serving as editorial director and group editor at Fancy Publications, Vice President of Editorial at Pets.com, and Editor of the San Diego Business Journal.
In addition, John is an adjunct professor in the College of Communications at California State University, Fullerton, and a board member at the Kronos Workforce Institute, where he wrote a chapter on hiring for transferable skills for the Kronos book Being Present: A Practical Guide for Transforming the Employee Experience of Your Frontline Workforce, that will be published in November 2019.
John holds an MBA from Pepperdine University’s Graziado School of Business & Management, a Bachelors in Journalism from California State University, Long Beach, and lives in Southern California.