Deposition Preparation for Human Resources Personnel. Presented by Brett Holubeck, JD

Transcription

1 Deposition Preparation for Human Resources Personnel Presented by Brett Holubeck, JD

2 To earn HRCI & SHRM credit Stay on the webinar for the full 60 minutes Watch the webinar using your unique URL NOVAtime will review attendance records and certificates of attendance and Activity ID numbers to all attendees who meet the above requirements ATTENDEES WHO DO NOT STAY FOR 60 MINUTES OR USE THEIR UNIQUE URL WILL NOT RECEIVE CREDIT

3 About Our Speaker Brett Holubeck Attorney with the Alaniz, Schraeder, Linker, Farris Mayes L.L.P. Earned his J.D. from the University of Iowa his Masters from University of Nevada, Las Vegas, and his B.A. from Ohio State University Supports clients facing investigations concerning wage and hour, discrimination, retaliation, and harassment charges by government agencies

4 Objectives How to prepare for a deposition as a fact witness or the designated corporate representative Best practices for answering questions on crossexamination Common mistakes made by first time deponents Scenarios encountered by HR professionals in depositions and model resolutions

5 How to Prepare for a Deposition

6 What is a Deposition? Part of the discovery process where evidence is obtained before trial Sworn testimony of various witnesses It forms part of the record for the lawsuit Used to find other witnesses & information Sometimes used to support procedural motions Depositions are used to prepare for court

7 Fact Witness vs. Corporate Witness Fact witnesses testify about specific facts Corporate Representatives testify about specific company policies and information known to the organization Corporate Representatives are designated by the company The deposition notice should explain in which capacity an HR rep will testify You may work for them, but you may not represent them

8 Fact Witnesses Testify about what you saw, said, heard or did Remember what facts you are attesting to in response to the question Limited to your personal knowledge What did you see?

9 Corporate Representative Testifies on behalf of the company regarding its procedures, practices and/or policies Testimony includes information that you were taught or told (it s not just what you personally know) What is the company line again?

10 Best Practices Before A Lawsuit Follow company policies and procedures to create and maintain any employee documents Take notes during employee evaluations and interviews, review them, and edit them before adding them to employee files Understand your company s document retention policies Include full names and quotes where appropriate in your employee documents Know that certain things should not be written down How did you violate company policy again?

11 Meeting with the Company Attorney: The Practice Round Discuss the facts, your findings, and how they relate to the claims in the lawsuit Review questions that the opposing attorney will probably ask Listen to instructions and preparation tips Ask questions Review any relevant documents How many times did they have to do that before they got it right?

12 Best Practices for Answering Questions on Cross-Examination

13 Typical Areas of Cross-Examination Questions Your background and training in HR Your knowledge of the applicable laws and company policies, practices, and/or procedures The facts of the case How you ve treated other employees in the same or similar circumstances Policies on Paper

14 Cross-Examination Dangers Speaking too quickly for your attorney to object to a question Answering a question that you do not fully understand Becoming intimidated or flustered by the opposing attorney Using humor, jokes, or sarcasm Giving your opinion rather than the facts Attacking (verbally) or arguing with the opposing attorney Answering questions about whether that was everything that you did in response to a complaint or other issue Yes, no, or maybe questions Guessing or estimating Were you lying then or are you lying now?

15 Reviewing What Happened at Your Deposition What were the gaps in your answers Is there anything that you missed or left out Anything to inform your attorneys about Ahhh. Now I see what I should have done.

16 Common Mistakes Made by First Time Deponents

17 Before the Deposition Do not discuss any aspect of the case (at the deposition site) until the deposition has started The opposing party is not your friend Review what you may be asked Inappropriate dress A lawsuit is a fight!

18 General Tips During Questioning Wait for the entire question before responding Only give verbal responses Be aware of and use your body language I do not recall and I do not know Answer the question that was asked not what you think the attorney tried to ask If you have to yell, then you re doing it wrong.

19 Questioning by Opposing Attorney Offering more information than what is being asked Do not allow the opposing attorney s questions, demeanor, or tone to get to you Do not try to fill the silence by continuing to talk Don t argue or lose your temper Don t lie or withhold the truth Treating the opposing lawyer as your friend Yes, it is frustrating to be constantly interrupted by the opposing attorney.

20 Scenarios Encountered by HR Professionals in Depositions and Model Resolutions

21 Hypo 1 Judy, the HR representative, is on the stand and is being cross-examined. She is acting as the corporate representative. The opposing attorney says Did Ed the employee meet the company s expectations? Ed has always received a meets or exceeds standards on his annual evaluations. He was fired by the company for poor work performance and now claims that he was discriminated against. How should Judy answer the question?

22 Hypo 1 Answer: Ed had decent performance evaluations in the past, but was not meeting expectations at the time of his termination. By way of example, months before his termination, Ed was counseled for work performance because he. He was also warned that if his performance did not improve, he would be subject to further discipline, up to and including termination. Ed s performance did not improve, and he was terminated after being given sufficient warnings and chances.

23 Hypo 2: Samantha supervisor has given her deposition testimony. Now, Harriet the HR rep is being deposed. During Samantha s testimony she states she sought the advice of Human Resources before firing a disabled employee. Harriet is asked about her involvement with Samantha and the termination.

24 Hypo 2 Answer Samantha came to me when issues relating to the Americans with Disabilities Act arose with an employee. Together, with the employee, we engaged in the interactive process to discuss the nature of the alleged disability and limitations, the essential functions of the job, and potential reasonable accommodations. After these discussions, we analyzed possible accommodations and determined that there was not a reasonable accommodation that was available to allow the employee to continue working.

25 Hypo 3: During a deposition involving racial discrimination claim, Henry is asked What did he do to make sure that Felipe was not discriminated against?

26 Hypo 3 Response: We have a strong equal employment opportunity policy, an anti-harassment policy, and a clear complaint process that is designed to prevent all employees, including Felipe, from being the victim of discrimination. We monitor the workplace. We encourage open communications. We train our employees to report discrimination and harassment if they experience or see it. Unless we see it, we can only do something about behavior if it is brought to our attention. [If applicable] Felipe never once complained of discrimination.

27 How NOVAtime Can Help DOCUMENT! Supervisors and Human Resources Document and file any complaints and issues electronically

28 How NOVAtime can Help Time tracking with audit trail of in-out punch locations Audit trail may be used to help resolve workplace investigations

29 How NOVAtime can Help Daily attestation before they leave for the day Job injury Confirmation for taking meal & breaks

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32 Thank you for attending! Alaniz Schraeder Linker Farris Mayes, LLP NOVATIME TECHNOLOGY, INC. Brett Holubeck 2500 CityWest Blvd. Suite 1000 Houston, TX Phone: Scott Rose, Enterprise Sales 1440 Bridgegate Dr., Suite 300 Diamond Bar, California Headquarters: