Avoid / Minimize the Effects of Employee Litigation¹
The #MeToo movement has shined a spotlight on sexual harassment in the workplace. Sexual harassment at your place of business can lead to financially crippling lawsuits, poor employee morale and productivity, and resignation of key employees.
Other types of harassment and discrimination have similarly serious impacts. The best way to have a workplace free of harassment and litigation is to be proactive. Make sure your employee policies and employment practices address harassment and discrimination and establish practices for investigating and responding to claims and resolving disputes long before litigation can occur.
Actions to take include:
- Identify potential problem areas. Review your hiring, promotion, disciplinary, and termination processes and procedures. Consider having an employment lawyer review and advise you on policies and the need for an employee handbook. Pay special attention to any process or procedure – or lack thereof – that could lead to claims of discrimination or harassment.
- Make necessary changes to your policies. Once you've reviewed your policies, make changes that are necessary to ensure compliance with employment laws. Include a clearly-worded no-tolerance policy for sexual harassment that defines what harassment is and explains how it will be handled. Then document the changes you make, train employees where necessary, and make sure everyone understands the requirements and expectations going forward.
- Take the next step; focus on prevention. Policies and practices are a great start, but don't stop there. Talk to your employees and keep an eye out for signs of discrimination or harassment. Look for ways to set up conflict management systems. Make it easier for employees to let you know if problems exist, and constantly audit your systems and practices to ensure all employees follow your guidelines.
- Investigate all claims right away. Respond immediately if you find that harassment or discrimination has occurred.
The key is to understand all of your legal responsibilities as an employer. For example, firing or otherwise disciplining an employee who is called for jury duty or who serves in the military or reserves is illegal. It is also illegal to retaliate against employees who claim harassment or discrimination or to deny long-term employees commissions or bonuses by terminating them before those benefits are vested.
If you have questions or concerns, always seek the advice of an employment lawyer. Especially seek input if you are in a position to seriously discipline or terminate an employee in a "protected class," like an employee over the age of forty, a member of a minority, or an employee with a disability. Seek outside legal advice even if you plan to take an action that impacts a large number of people and you will apply that action evenly and fairly to all; large-scale actions (like layoffs or mandatory early retirement) can still be a source of litigation if you apply those actions to a large group of diverse employees.
- Be familiar with federal and state employment laws. Also stay on top of changes in the law. Periodic consultations with an employment lawyer can help you stay up-to-date.
- For free advice, contact the Department of Labor. Your local Department of Labor office will provide free advice and guidance about your wage and benefits practices.
- Have your policies and procedures reviewed by an experienced attorney. Send along all employee manuals, handbooks, and guides. Conduct a regular review to ensure your documents are up to date and reflect any changes in law.
- Use appropriate employment applications and employment contracts. Have an attorney review them. Make sure employees understand their responsibilities, including their non-disclosure and non-competition obligations.
- Conduct regularly scheduled performance reviews, and make them as accurate and complete as possible. It is difficult to defend firing an employee for poor performance when his or her last evaluation indicates acceptable (or better) performance.
- Make job offers in writing, and specify the terms and conditions of employment. Providing (and keeping) written documentation helps ensure there are no misunderstandings later.
In spite of your best efforts, an employee may still file a discrimination, harassment, or employment law violation claim against you. If that occurs, take action:
- Contact your lawyer immediately. Fully describe the situation, provide all relevant documentation, and take the action recommended. Especially ensure that you respond in a timely manner to all requests for information or to court orders.
- Do not retaliate, and make sure other employees also do not retaliate. Employees have the right to file claims, and they are protected from retaliation as a result of filing claims. Act professionally at all times.
- Follow the advice of your lawyer, and stick to your principles if you are in the right. Settling in order to avoid litigation may help in the short term, but it can also create a long-term problem for your company. At the same time, if you are in the wrong, it may be to your advantage to settle quickly and fix the problem that caused the complaint.