Anyone who has ever done a Google search on this topic soon discovers that every lawyer who has ever represented an employer seems to have written their own “Top (insert number here) List” of ways to avoid employee lawsuits. So, at the risk of seeming redundant (because it is), here are our Top Five:
Number Five: Obey the law. Okay, that one is obvious, but it’s also true. An employer who discriminates in hiring, promotions or terminations, fails to offer reasonable accommodations to employees with disabilities, tolerates sexual harassment, discourages employees from taking FMLA leave or fails to pay overtime when due sooner or later will wind up in court. Besides, discrimination is not only illegal, it’s bad for business. We put this at Number Five because the topic is avoiding lawsuits. You can do everything right and still get sued. If the topic were “winning” employee lawsuits, this would weigh in at Number One.
Number Four: Set clear expectations. Employees who don’t know what is expected of them, or are confronted with expectations that change more often than the boss’ socks are going to be dissatisfied, not to mention unproductive. Employers need to set policies and expectations that are clear, concise, up-to-date and regularly communicated. Most importantly, whatever policies you set must be consistently adhered to. Policies that are mainly honored in the breach enable the lowest performer to set the bar for everyone else.
Number Three: Provide honest feedback. Employees who are terminated for “poor performance” should not have a personnel file full of reviews stating that the employee “exceeds expectations.” Yet, all too often this is exactly what you get. Supervisors need to know that management expects them to provide honest, objective feedback. And that management will stand behind them when they do.
Number Two: Document consistently and accurately. Attempts to “paper the file” shortly before terminating a problem employee will be viewed with suspicion by judges and juries. The employee’s attorney will look for inconsistencies in documentation between the client’s file and those of similarly situated employees to prove that his or her client was “singled out” for disparate treatment.
And Our Number One: Above all, be fair! Employees who perceive that they have been treated fairly, even when “fairness” results in termination, are less likely to go running to a lawyer in the first place. Providing employees with a means to address their concerns without fear of retribution will help to avoid frivolous, not to mention justified, claims. What’s more, employees who perceive themselves as being treated fairly are likely to reciprocate and cause fewer problems in the first place.
Now that you have the definitive list, you can stop searching and get back to watching those cute cat videos.
For a confidential analysis of your employment issues, or questions about TRC’s employment practice area, please contact Jerry Hogenmilller at (412) 316-8689 or [email protected].
Important Notice: This information is intended for general guidance only, and should not be used as a substitute for specific legal advice. For specific legal advice applicable to your situation, you should consult an attorney of your choice. Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied. Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.