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The Top Ten Mistakes Employers Make That Can Lead to Litigation

The Top Ten Mistakes Employers Make That Can Lead to Litigation


(March 14, 2011)

Sometimes getting through your workday is challenging enough in itself. Flurries of meetings, paperwork, emails and phone calls bombard us all, and amid the stress, it’s very easy to forget the essentials of the most basic HR practices. What is infinitely more stressful, however, is your company being sued by a disgruntled employee. The following list serves to remind you of the fundamental ways you can protect your company (and how you can keep “testify in court” off your to-do list).

    1. Poorly drafted or inconsistently applied personnel policies: In addition to reviewing your policies periodically, you need to ensure that they are internally consistent, and that policies are based on and accurately reflect the law (ADA, FMLA, etc.) It’s also extremely important to remember that no good deed goes unpunished. Inconsistent application of policies is the most fertile ground for plaintiffs in discrimination claims. Your good deed could be used against you.
    2. Unintentional modification of at-will employment:  Oral promises like, “You’ll always have a job here,” or “Keep up the good work and you’ll be promoted,” can get you into hot water. The failure to affix appropriate at-will disclaimers in manuals or policies can also have consequences later. Breach of contract claims almost always go to a jury, so your best defense is to avoid inadvertantly creating an employment contract in the first place.
    3. Mishandling personnel documents and information: The list of things that should be included in personnel files includes applications/resumes, performance reviews, employment contracts, corrective action memos, and signed employee acknowledgments. Things that should never appear in personnel files include medical information, I-9 forms, information about employees’ protected status, or potentially libelous material.
    4. Careless treatment of employee complaints: In addition to having a clearly written complaint policy, you should respond to complaints promptly, thoroughly and effectively. Maintaining as much confidentiality as is reasonably possible, and involving only those who need to know are key. Assurance against retaliation is also essential.
    5. Improper classification of employees: Establishing whether an employee is classified as exempt or non-exempt is so important to protecting your business. The calculation of overtime, disciplinary actions, and deductions for exempt employees are just a handful of issues impacted by improper classification. The routinely problematic issue of independent contractor versus employee classifications can also result in large unexpected expenses down the road, even if a lawsuit is not on the horizon.
    6. FMLA land mines: Three common failures that can land you in trouble include not designating the “rolling” 12-month period; not designating leave as FMLA covered; and not running FMLA leave concurrent with workers’ compensation leave. Also, you can require the use of paid leave during FMLA leave. Knowing where you stand on these issues can go a long way in preventing misunderstandings later.
    7. Mishandling requests for reasonable accommodation: Making reasonable accommodations requires interaction and understanding between you and your employee. Reasonable accommodations may inlude making facilities accessible; job restructuring/light duty; modified schedules; leaves of absence; or special equipment. You don’t have to do precisely what the employee requests if you can determine another effective way to achieve his or her desired result. The important thing is that you try.
    8. Responding to EEOC charges: Responding to EEOC charges without the help of an attorney is certainly possible, but it is inadvisable. You could find yourself locked into a position without the benefit of legal advice, and the drafter becomes a critical witness. Also be wary of providing too much information, and the possiblity that you could inadvertantly waive available defenses. If you are responding to a charge, you are already in trouble. Don’t try to go it alone.
    9. Poor hiring practices: This is a huge arena with lots of pitfalls, but the most critical ways you can protect your company include the development of accurate job descriptions; training of employees specifically on how to interview applicants; and the use of standardized interview and application questions that are related to the requirements of the job. Performing background checks and remaining consistent from one applicant to the next are also critical steps.
    10. Failure to document: “If it’s not in writing, it didn’t happen.” While the statement isn’t technically true, that is what juries will tend to believe. They are also of the mind that if there was an important incident, you would have written something down about it. Be specific, accurate, and thorough. Have witnesses where appropriate and obtain signatures. Know how long you should retain your records, and what should be included within them.
       

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Authors
Peter A. Rutledge
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Associated Attorneys
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