The occasional lawsuit is part of the cost of doing business; however, employers can help to reduce the number of employment suits they face by following these simple rules. (Note: These rules are adapted from a recent post on the award-winning blog, “Employment and Labor Insider,” of which my colleague, Robin Shea, is proprietor.)
Rule No. 1:
Avoid Pointless Rules
Stupid workplace rules irritate employees. Examples:
• Requiring an employee to bring a doctor’s note whenever he is out sick – not when the employee is requesting leave under the Family and Medical Leave Act, not when he is requesting a reasonable accommodation for a disability; he is simply running a fever that day.
• Asking that Form 1054A be submitted in person to eight people, seven of whom will not read it.
• Requiring extensive documentation when all the employee wants to do is use two of his eight hours of legally mandated unpaid leave to attend a parent-teacher conference that could not be rescheduled outside of working hours.
Your company needs rules to function efficiently and lawfully, but you don’t have to regulate everything.
Rule No. 2:
Avoid Firing Anyone in Anger
No matter what an employee has done, you can almost always suspend her for a couple of days while you regain your composure, talk to human resources, and call your favorite employment attorney. Taking a step back allows you to more objectively assess whether termination is the right choice under the circumstances. It provides time to consider your approach, like whether or not termination is consistent with your written policies, if you should allow the employee to resign, or if you should offer severance pay. Use the time to confirm whether or not the decision is consistent with the way you have treated “similarly situated” employees in the past. A cooling-off period will also give you time to articulate the reason for the employee’s termination. After reflection, you may realize there is a better course of action.
Rule No. 3:
Don’t Fall Behind on Essential Policy Updates and Training
As I often say, the best policy in the world will not rescue your company from liability if your practice is unlawful, and a handbook that is unlawful on its face will cause you problems with government agencies and in court, even if your actual practice is perfect. In order to be equipped to address employee questions and complaints, you need updated, lawful policies. And just as importantly, your employees and managers need to understand and be trained on those policies.
Essential training topics include harassment, discrimination, and safety. In the harassment context, the mere fact that you conducted training may give you a defense in a lawsuit. In addition, training tends to flush out fresh complaints that you might not otherwise hear about. When those complaints come to light, you can investigate and address them, which is always a good thing. Harassment training also serves as a valuable refresher for supervisors, who have to handle complaints properly, and for employees, who need to govern their own behavior and know what to do if they become victims. Plaintiffs’ lawyers love to ask supervisors (1) whether they ever had harassment/EEO training, (2) how long ago they had it, and (3) who conducted it. Could your supervisor answer these questions well enough to satisfy a jury? If the only time that Manager Mark received the company anti-harassment policy was during his onboarding process 18 years ago, I would not count on it.
Rule No. 4:
Don’t Ignore Known Problems (and Problem Employees)
As I have mentioned in previous articles, you need to take all employee complaints seriously. Even a stopped clock is right twice a day, and the fact Emily the Employee has made six complaints in the past six months does not mean that her latest complaint is unfounded. If you receive a complaint, you should investigate it in accordance with your consistently applied plan and policies, and thoroughly document the process. (Consistency and documentation are always a good idea.) If you determine that some misconduct occurred, take prompt remedial action, even if the erring employee is valuable to your company, or he has been with the company for 45 years, or she’s the boss. Although it is certainly possible that an employee could be wrongly accused several times, pay attention if you receive numerous complaints from a range of different employees regarding the same problematic behavior of one particular person.
Rule No. 5:
Don’t Mess with Employee Pay
People get (understandably) upset when they are not paid correctly. Most employer mistakes about pay are honest ones, but periodically you come across someone who is really trying to cheat employees out of their rightful wages in order to keep costs down or meet quotas. Or occasionally there is an employer who is not deliberately cheating employees but does not care enough to ensure they are being paid properly. This is a big problem because there are so many ways to mess with an employee’s pay, requiring employees to work off the clock, misclassifying them as exempt when they clearly are not (which may deprive them of overtime pay), misclassifying them as “independent contractors” when they are clearly “employees” (which may deprive them of overtime, benefits, tax withholding, and the employer’s share of Social Security), or using “creative” ways to calculate overtime. As a general rule, it’s never a good idea to be “creative” where the Fair Labor Standards Act or state wage laws are concerned.
Rule No. 6:
Email Like It’s Your Deposition
I don’t know who said it first, but I love this quote: “Dance like no one is watching.” With that as inspiration, “Email like it may one day be read aloud in a deposition.” In today’s digital age, many of us send tens or hundreds of emails per day without giving much thought as to how an email might be interpreted or who might see it. If you are asked about whether an employee is entitled to leave under the Family and Medical Leave Act, kindly do not respond with “I know it’s not what you want to hear, but yes, we must give him the leave.” If you are angry about a new project at work, please don’t text a colleague on the company’s phone to vent that, “The old codger is off his rocker. Since he won’t give it up and retire, we need to get rid of him.” Following this rule will not necessarily prevent litigation, but you will thank me if you do get sued. You may think of your email or text messages as private, but they are likely to come out in litigation and be read at your deposition or in front of a jury. In short, if you would be embarrassed to have it read in front of your boss and your grandmother, don’t send it. Or, at least, tone it down.
There is no way to prevent every employment suit, but following the above rules will help put you on the path to avoiding some of them.
This column is made available by the lawyer and publisher for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice or to establish an attorney-client relationship. This column should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Susan Bassford Wilson is an employment attorney in the Midwest with the nationwide firm of Constangy, Brooks, Smith & Prophete, LLP. She can be reached at [email protected] or on Twitter at