Written by Ronald V. McGuckin and Associates, www.childproviderlaw.com
Over the past several years, lawsuits filed by employees against employers have continued to rise at an alarming rate. Sometimes frivolous, sometimes warranted, these lawsuits ultimately cost
the employer a great deal of time and money.
Our experience in representing agencies and defending employee/employer lawsuits has shown there are mistakes that managers often make in dealing with employees that can spark employee lawsuits. By identifying and avoiding these common mistakes, managers can reduce their risk of being involved in costly employee-related legal litigation.
The unlucky 13 mistakes that can lead to legal litigation are:
1) Improper/sloppy documentation: Our mantra in the law office is document, document and document some more. But all the documentation in the world won’t be of any benefit, if it’s done improperly. Make sure all documentation is legible, dated, signed, and witnessed (if warranted). And be careful that your documentation (including emails) doesn’t reflect any discriminatory intent. Make sure your comments and written communication will hold up to the scrutiny of a court.
2) Not knowing policies and procedures and not enforcing them: Ignorance is not bliss when it comes to knowing your agency’s policies and procedures. Familiarize yourself with policies and enforce them across the board. If you claim ignorance regarding a policy, a jury tends to look at as intentional. And if you only apply policies to certain employees, it can be viewed as discriminatory.
3) Lack of legal knowledge: Juries expect individuals in management positions to stay abreast of the law as it relates to employment. Review your policies to make sure they are legally sound (or better yet, have your lawyer review them), read HR newsletters for the latest information, and get a lawyer’s viewpoint if you have questions related to employment law.
4) Interview mistakes: Not only should you be able to prove why you hired a certain individual, you should be able to prove why other candidates were rejected. Hiring one employee over another, and not being able to prove why you made that decision, might just be the spark that ignites a discrimination claim. During the interview process, make sure you aren’t asking any questions that can be viewed as discriminatory and be careful you don’t jot down notes that can be viewed as having discriminatory intent.
5) Inflated employee performance appraisals: For a variety of reasons, managers often inflate employee’s performance on their appraisals. But remember the performance appraisal might be the very document you need to prove an employee’s poor job performance which resulted in demotion or termination. Overly inflated performance appraisals are of no benefit to the agency and will bring your credibility into question.
6) Ignoring complaints of unfairness or improper/illegal employment actions: If an employee complains that he/she is being treated unfairly, being harassed or possibly being discriminated against, investigate and take any necessary action. A laissez faire attitude regarding such allegations will land you in hot water and possibly in court. Don’t jeopardize your credibility by such inaction.
7) Being rude, insensitive and mean: Although you might think this is just “personal style” and won’t have legal ramifications, being mean-spirited, making rude remarks, or treating your employees like second-class citizens, won’t sit well with a jury, and
depending on the remarks, might be seen as discriminatory. Treat your staff with respect.
8) Changing your story midstream: We’ve seen it happen time and time again; an employer disciplines or terminates an employee and, upon getting indications that the employee is considering legal action, the employer subsequently changes the reason behind the action. Such conduct ruins your credibility and looks questionable. Be honest and consistent regarding the reason for employment actions.
9) Careless statements to investigating agencies: When a disgruntled employee files a complaint with a State or Federal agency (often the EEOC for possible discrimination), the agency must investigate. This investigation will most likely include questioning management for information regarding the employee/employer relationship and related employment actions. Careless comments, not being truthful, or changing your story will certainly come into question and can hurt your case should it end up in court.
10) “Padding” an employee’s personnel file: When management is planning to terminate an employee, they often bombard the employee’s personnel file with disciplinary actions in an effort to support the termination. But a court will see through this sudden influx of negative documentation. Our recommendation is to always document an employee’s negative AND positive job performance, be consistent about it, and review your employees performance on a regular basis.
11) ADA violations: This runs the gamut and can include unwillingness to make accommodations or dictating the accommodation to the employee. Federal law requires employers to make “reasonable” workplace changes to accommodate the employees disability. But the employer can’t dictate the accommodation, it must be a give and take process, employer and employee working together to find a solution.
12) Terminating employees too fast: Courts often look at whether management fired an employee hastily, without trying to improve the employee’s job performance. Some employee actions may warrant immediate termination but quick, knee-jerk firing may be viewed as insensitive or discriminatory. If the employee’s poor job performance is something you think can be improved, set goals to be accomplished within a certain time frame and revisit the situation for progress. Ultimately, you may have to terminate the employee, but a court will look more favorably on you as a manager if you made an effort to improve the situation.
13) Taking too long to terminate an employee: No one likes to terminate an employee, especially in today’s economy. But sometimes employers “hang onto” an employee much longer than they should, ultimately jeopardizing the wellbeing of the program. As stated previously, some actions require immediate termination. And if you’ve tried to improve the employee’s performance to no avail, or the employee is a repeat offender, it is time to let the employee go.