Three takeaways from two days of depositions with Wal-Mart

I spent two days in depositions with Wal-Mart in a wrongful termination case in late August. I took away three interesting lessons that other practitioners and HR professionals might find interesting.

Lesson 1: If you’re representing the plaintiff, always have your client present when you are taking depositions of defense witnesses. My client picked up on a key fact on a key issue that I had not thought of in my deposition preparation. Thanks to my client, the testimony of my client’s direct supervisor’s later in the day undermined the credibility of the HR manager taken earlier in the day.

Lesson 2: Wal-Mart has re-structured their written performance evaluations: My client was terminated in 2009.  I found out in depositions that Wal-Mart has re-structured how they do written performance evaluations. I’ve read commentary from some HR practitioners about getting rid of performance evaluations altogether because they often end up as exhibits for the plaintiff in wrongful termination cases. In this case, Wal-Mart’s written performance evaluations showed my client was an average to above-average employee. These written evaluations are important because satisfactory work performance is one piece of circumstantial evidence linking protected activity/class to termination. It seems that Wal-Mart has attempted to close this avenue that plaintiff’s have to prove their wrongful termination cases.  However, during the depositions of my client’s direct supervisors, both of those supervisors testified that my client was a good employee. I find that direct supervisors and lower management will usually vouch for my client’s if in fact they are good employees. Some might fear that direct supervisors would hesitate to give favorable testimony for plaintiff’s in a wrongful termination case, but that really hasn’t been my experience in regards to work performance.

Lesson 3: Wal-Mart documents training in regards to union organizing separate from their other fair employment practices training. I just found the above fact interesting, this tidbit came from a direct supervisor of my client. Wal-Mart trains management and hourly associates in fair employment practices and documents that training in a database. Apparently the training that HR gives to supervisors and line managers is not documented in that same database/


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