Ten Steps to Avoiding Employee Lawsuits

by Ken neth J. Diamond

Employment litigation is growing, and one unfortunate result is that some employers now fear, if not resent, their most valuable asset:  their people.  It does not have to be this way.   Armed with the following common sense principles, employers can avoid lawsuits and, equally important, improve employee morale and productivity. 

·                    Treat employees with dignity.   Most discrimination lawsuits are the result of a sense of injustice, not overtly discriminatory acts or statements.  Thus, the manner in which the termination decision is made, communicated or carried out can be as important as the decision itself.  A careless remark, an unkind gesture or a thoughtless act, though not unlawful, can prompt an employee to ask “Why me?” and search for the characteristic -- age, gender, sexual orientation, race, marital status, etc. -- that differentiates him from others who were treated less severely.  The legal theory is simply the hook that allows the individual to challenge the initial indignity. 

·                    Exercise caution, not paralysis.  Many employers are afraid to take adverse action against employees who fall within a protected category lest they be sued.  This approach serves no one’s interest.  Be mindful of the employment laws.  Proceed slowly where appropriate.  But continue to actively manage the problem employee. 

·                    Speak carefully, but directly.  Loose lips create litigation.  The wrong words at the wrong time can lead to frayed feelings and the reinterpretation of past acts.  The first step is the careful but honest selection of words; do not sugarcoat them even though that may seem more humane at the time.

·                    Communicate.  Many employers fail to communicate because they fear being told something they don’t want to hear.  Inquire, do not assume.  The typical harassment victim simply wants the harassment to stop.  The typical disabled worker simply wants a new chair or more frequent breaks.  Most employees expect decisions to be made thoughtfully, not necessarily in their favor.  Meet that expectation.

·                    Avoid information you don’t need.  When interviewing applicants, remember that behind all the legalese rests one fundamental rule:  If the information isn’t reasonably related to the employee’s ability to perform the job, don’t ask for it.  Once the forbidden information is known, it is nearly impossible to prove that it was not considered. 

·                    Follow your own policies.  Don’t forget the obvious.  Many employers successfully navigate complex employment and labor laws only to trip over their own written policies and procedures.  This can lead to breach of contract claims. 

·                    Practice preventative medicine, not surgery.  In medicine, prevention is typically preferable to surgery.  The same is true in the workplace.  Discharge can be expensive and problematic.  That is why it generally should be done only as a last resort after reasonable efforts to manage the situation have failed. 

·                    Document.  It’s one thing to manage a situation lawfully, but another thing entirely to prove it in court.  Many employment disputes boil down to the employee’s word versus the employer’s.  The jury needs an additional reason to believe the employer.  Contemporaneous documentation can fill that need. 

·                    Exceed expectations.  Behind most disgruntled employees (and plaintiffs) are dashed expectations.  If opportunities arise, break the pattern.  Consider doing more than the law requires; for example, providing a period of unpaid leave for a purpose not recognized under the Family Medical Leave Act.  In going beyond what is required, employers must be mindful of discrimination and precedent-setting.  But these concerns frequently are overblown and outweighed by the goodwill that results by going the extra mile. 

·                    Use counsel wisely.  Too many employers view legal counsel as their hired gun, the company spokesperson who will artfully and zealously advocate the wisdom of whatever the employer has done.  It rarely works so well.  If the decision was unlawful, the jury usually will see it.  The wise manager uses his attorney as a counselor beforehand, not simply a hired advocate after the fact.