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When You’re No Longer Presumed to Be Innocent Under the Law


by Glenn Shepard
February 2, 2016
Category:  Management & HR



Scottsboro, AL Feb 5
Carrollton, GA Feb 16
Hannibal, MO Mar 1
Poplar Bluff, MO Mar 2
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Dear Glenn,

Would you rehire a former employee?

Dan in Brattleboro, MA

Dear Dan,

Absolutely! Back in the eighties, there was a sort of corporate arrogance against this. But in today’s tight labor market, it’s quite the opposite. An article in the Harvard Business Review reported that it costs half as much to rehire a former employee, they’re 40% more productive in their first 90 days; and they stay longer. The greatest example is Steve Jobs. After Apple fired him at age 30, they rehired him at age 41. Had they not rehired him, iPods, iPhones, and iPads probably wouldn’t exist today.

- Glenn in Nashville, TN

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The Netflix series “Making a Murderer” has Americans obsessed with the intricacies of our legal system.

There are multiple levels for burden of proof in our legal system, including:

1. Reasonable Suspicion – What a police officer needs to pull you over.
2. Probable Cause – What’s needed to arrest you.
3. Preponderance of Evidence – Used in civil trials.
4. Clear and Convincing Evidence – A higher burden of proof used in cases such as for child custody.
5. Beyond Reasonable Doubt – Used in criminal cases.

No matter how grizzly of a crime people are accused of, they're presumed innocent until proven guilty.

But when it comes to labor law, don't make the mistake of assuming you'll be presumed innocent.

If you're accused of harassment, discrimination, wrongful termination, etc., you look guilty by association.

No matter how absurd and untrue the allegation may be, you’ll have to jump through hoops to prove your innocence.

And no matter how much your company supports you, it’ll make your life miserable.

Even worse, many companies don't purge records of the investigation from personnel files even after the manager has been vindicated. They want to prove that they took swift and decisive action once an allegation was raised, even if you leave the company.

When I was 22 and in my first managerial position, I was once accused of se*ual harassment. My boss told me he knew it wasn’t true, for two reasons.

First, I was too career minded and focused to do that.

And second, she had more nicknames given to her by coworkers than anyone I’ve ever known, including:

The Tank
The Bulldozer

She was a bully who scared everyone, and I’m pretty sure no one ever se*ually harassed her. She was retaliating because I had written her up multiple times.

I was immediately vindicated, and my boss eventually fired her for unrelated reasons.

But long after she was gone, other managers continued to make comments like “Have you seen Satan lately?” Though it didn’t hurt my career, it terrified me to think of what the ramifications could have been if the company had believed her.

Understand that if you're a manager who's accused of any labor law violation, you face an uphill battle in which the burden of proof is more like this:

"Be able to prove beyond the shadow of the shadow of the shadow of a doubt that you did nothing wrong!"

The only way to meet this burden of proof is to practice the three cardinal rules of management:

“Document, Document, Document”

If it's not in writing, it didn't happen.

To Your Success,

If you hate doing performance evals (as most people do), this is one reason you have to do them. They automatically create a paper trail that protects you as a manager if you’re ever falsely accused of anything.

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