When Will They Ever Learn? 9 Things Employers Can Do (Or Stop Doing) to Decrease The Risk of Employment Litigation
December 12, 2012 by Julie A. Uebler, Esq.
During the years when I represented employers, there were always a few common sense things I advised my clients to do to minimize the risk of employment-related litigation. For example, managers should avoid giving inflated performance reviews because those positive ratings will be hard to explain if and when that manager (or a new manager) decides to deal with performance deficiencies in the future. Sometimes, my advice was to stop doing something, such as sending the sales force to team meetings at resort locations where the alcohol runs freely, and then wondering why Human Resources received multiple sexual harassment complaints following those trips.
Now that I have been representing individual employees for many years, I can confirm that the employers in the greater Philadelphia area still have not learned how to keep their employees out of the office of a plaintiff’s attorney. At the risk of a declining workload in the future, here are 9 practical suggestions for employers who want to decrease the risk of employment litigation.
1. DO Encourage Managers To Be Candid About Employee Performance.
If the manager sees poor performance, but fails to address it, the manager’s actions may result in an unnecessary lawsuit, particularly where a new manager comes in and finally takes action. Most discrimination cases are won or lost on the issue of “pretext,” that is, did the employer’s decision make sense, or is it so unsupported or otherwise unbelievable to allow a jury to infer that discrimination was the real reason for the adverse action. Picture the scenario in which a female employee gets positive reviews from her boss for many years, and then is placed on a Performance Improvement Plan during the first few months reporting to a new, male supervisor, even though her performance has not changed. In that situation, it is easy for the employee, and a jury, to infer that the new manager did not like the employee for some reason, and that reason could be her gender. If managers are not skilled enough to deliver candid performance feedback, train them.
2. DO Train Managers.
Managers need to be trained on more than just how to provide performance feedback. Although employers do not need to turn their managers into Human Resources specialists, training managers to spot the red flags and know when to consult the specialists for assistance can significantly reduce the risk of employment litigation. Do your managers know that they may need to accommodate an employee’s request for time off for religious reasons even if it means the co-workers covering those shifts miss the big football games? Do your managers know that an employee’s request to take his child to doctors’ appointments for chronic asthma will likely trigger obligations under the Family and Medical Leave Act (FMLA)? Do your managers know that an employee recovering from hip replacement surgery is likely entitled to a reasonable accommodation under the Americans with Disabilities Act? Management training can have a significant return on investment in the form of reduced defense costs.
3. STOP Fighting Legitimate Unemployment Compensation Claims.
More and more employers seem to be fighting unemployment compensation claims, even in cases where compensation is typically payable, as in performance-based terminations. Often, employees who have valid employment-related claims are not looking to sue their employers, but do need to rely on unemployment compensation as a bridge to their next job. In many cases, if the employer did not challenge employees’ unemployment claim, the employer would never hear from them again. Instead, many employers are sending internal or external claims managers to unemployment compensation proceedings to assert that employees engaged in “willful misconduct” in order to preclude unemployment benefits. This approach often backfires because the employee now has an incentive to contact a plaintiff’s attorney, who will then not only assist in overturning the unemployment compensation denial, but uncover any other valid employment claims as well.
4. STOP The Party Trips.
A very large percentage of sexual harassment allegations I have seen in my role as counsel, as well as an investigator of such claims, arise “off-site” in a situation in which one or both parties to the harassment have been drinking. You might be surprised to learn how many employees make passes at their co-workers, make sexually explicit jokes, and/or end up in strip clubs when they are away from home on business. Check your inventory of sexual harassment complaints. If this is an issue for your company, consider keeping sales and other business meetings local, and keep the partying in check.
5. DO Engage In The Interactive Process In Good Faith.
The Americans with Disabilities Act (ADA) imposes obligations on employers to provide “reasonable accommodations” to disabled employees who are otherwise qualified for their jobs. Since working with disabled employees is not something managers (or Human Resources staff) do every day, there seems to be a tendency to assume a disability cannot be accommodated. Picture the solid sales manager who is dealing with a degenerative vision or hearing impairment, or the scientist suffering from “chemo brain” following cancer treatment. How can employees be effective if they can no longer see their e-mail or concentrate in the lab the way they used to? Ultimately, it may not be possible to provide accommodations to a disabled employee that will enable him or her to do a job. But, it’s the employer’s refusal to explore potential accommodations that sends these employees to our offices. Instead of relying on assumptions or stereotypes, employers should listen to the employee, and do a little research. I highly recommend the Job Accommodation Network at www.askjan.org as a resource. You might learn about a low cost option to have e-mail messages read out loud, or other options that were not immediately obvious. Even if you end up denying requested accommodations, treating a disabled employee with respect greatly reduces the risk of claims under the ADA.
6. DO Monitor For Retaliation After Investigating Internal Complaints.
It is human nature for a manager accused of discrimination or harassment to feel angry, hurt, or misunderstood. Even so, it is illegal to act on that emotional response by retaliating against the alleged victim and/or the person who complained about the harassment or discrimination. In fact, retaliation claims are the ones that may pose the greatest risk to employers in front of a jury simply because the jurors assume the accused manager was offended by the allegation, even if he or she does not otherwise come across as someone with a bad motive. There are plenty of situations out there in which the employee’s underlying claim is not viable, but the employer still faces litigation exposure because it failed to monitor the work environment for retaliation. With limited effort, employers can reduce the litigation risk relating to retaliation claims by: periodically checking in with a victim or complainant about how things are going (and documenting that you did so); reviewing the performance and other personnel records of the victim or complainant for significant changes from before the complaint; and investigating complaints of retaliation as seriously as an initial discrimination complaint.
7. STOP Allowing Managers To Use RIFs To Clean House.
When an employer asks its managers to reduce costs by eliminating positions through a Reduction in Force (RIF), who ends up on the RIF list: (1) the oldest employee in the department who just will not retire; (2) the only employee in the division who took leave under the FMLA this year; (3) the employee who rejected the boss’s sexual advances, but did not complain for fear of losing her job; or (4) all of the above. If management and Human Resources are not paying attention, it will be (4) all of the above. If you are going to fire employees as part of a RIF or other cost cutting initiative, it is worth the investment to require a qualified Human Resources specialist or an attorney to review and evaluate those selection decisions.
8. DO Document The Reason For A Termination.
As we all know, Pennsylvania is an at-will state, and absent an employment agreement for a term, an employer can fire an employee without notice for any reason or no reason as long as it is not for an illegal reason. Even though the public has a general understanding of the at-will doctrine, most employees who are terminated from their jobs are surprised and shocked that it is happening to them. Many of those employees will consult with employment counsel. Assuming the employer is not acting with an illegal motive, the employer will significantly reduce the likelihood of a legal challenge if it takes the opportunity to identify the reason for the termination in writing at the time the employee is terminated. Regardless of what you may think, the plaintiffs’ employment bar is not interested in pursuing claims without merit. Convince us that the termination was legitimate by taking the time to document the business reason at the time of termination.
9. DO Treat Employees With Respect At Termination.
As with the employers who challenge legitimate unemployment compensation claims, employers who treat their employees like criminals during the termination process are just asking for trouble. The employee who would have accepted a performance-based termination, and moved on, will consider challenging the termination if he or she is treated with disrespect at the termination meeting. While everyone understands the need for reasonable security precautions, it is typically unnecessary and greatly humiliating to force an employee to pack up personal belongings immediately upon notice of the termination, and to escort the employee out of the building during work hours. In cases where an employee has filed any kind of complaint, this type of treatment screams “retaliation.” Instead, employers should consider, whenever possible, allowing the employee to return to collect personal things after work hours, and allowing the employee to leave the premises without an escort at lunch time or at the end of the day.
Of course, all of this is common sense that sometimes flies out the window in the press of everyday business. If all else fails, you can decrease the risk of employment litigation in your own company if you can remember the lesson we all teach our children about getting along in this world – in your dealings with employees, ask yourself how you would want to be treated in the same situation and do it.
Julie Uebler is a litigator, mediator, and investigator of employment law-related matters in the greater Philadelphia region.
This article originally appeared in and is reprinted with permission from the November 28th, 2012 edition of The Legal Intelligencer, © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.