Four Management Tips to Avoid Employment Litigation
In today’s workplace, managers and frontline supervisors face an unprecedented number of challenges, including reorganizations, international competition and the infusion of technology into the workplace. These challenges are met with a myriad of complex employment and labor laws that govern conduct in the workplace, making good management vital to company success.
Of additional importance is the fact that incidents of employment litigation are on the rise. In the 2014 fiscal year, the EEOC received 88,778 charges against employers. There is no indication that employment discrimination cases will decline significantly in the future. Of note, 42.8% of the charges filed included a claim of retaliation by the employer.
Idaho is an employment at-will state. This means that an Idaho employer or employee may terminate the employment relationship for any reason, or no reason, unless the employment termination would (1) be prohibited by law (such as age, race, sex or disability discrimination); (2) be a breach of an employment contract; or (3) violate a public policy.
While the presumption of at-will employment gives Idaho employers a degree of comfort, there are a number of governing employment and labor laws that are easily—even inadvertently—violated. Below are tips for Idaho employers to help mitigate the risk of costly workplace litigation.
Managers and supervisors are often the first to know of problems and issues that arise in the workplace. Managers can be the eyes, ears and voice of the employer. Therefore, it is imperative that managers receive adequate training to not only deal with issues, but to also promptly recognize workplace matters that can create potential liability for the employer.
Training should cover both traditional HR topics like anti-discrimination or anti-retaliation procedures and policies, as well as current issues, such as social media, violence in the workplace, texting while driving and teleworking.
When communicating about a sensitive personnel issue, managers should be cautious about what and how they communicate. The most important lesson with regard to email, voicemail and other electronic communications is that they never go away. Managers must proceed with the assumption that all messages are stored within the computer system and can be retrieved indefinitely. Thus, any email that contains any even slightly inappropriate content can have a devastating impact during litigation (even if it is not directly related to the central issue).
In communicating electronically, supervisors must remember to be sensitive to all of the comments, jokes or even slight suggestions that could be considered inappropriate in the workplace. In particular, when creating electronic messages, supervisors should remember that every word (and image) could be retrieved in litigation and made public.
When employers seek legal advice from counsel for personnel matters, these communications are privileged and generally do not have to be disclosed later. However, just copying your employment attorney on all communications does not invoke the attorney/client privilege.
Most employers have an intergenerational and multi-racial workforce resulting in different styles and methods of communication. Sometimes employees (from all backgrounds) can be vague when making requests or complaints regarding the workplace. An untrained supervisor might inadvertently help build the employee’s case if the supervisor is not properly equipped with the necessary tools and information to recognize the workplace concern and respond to the employee.
Recent developments highlight areas where an employee may make a vague statement that nonetheless triggers potential liability for the employer. For example, the Supreme Court recently held that the anti-retaliation provision of the Fair Labor Standards Act protects employees who make verbal complaints.
Another potential hotspot where employees might be vague is a request for an accommodation. Prior to the amendments to the Americans with Disabilities Act (ADA), much of the litigation focused on whether an individual’s impairment was a disability. However, after the enactment of the ADA Amendments Act, the best course of action may be to presume the impairment is a disability.
An employer has a duty to engage in a good faith interactive process with an employee upon receiving notice of the employee’s disability. The interactive process requires a good faith exchange of information between employer and employee. However, courts have interpreted the regulations to place the burden on the employer to take the initiative and request additional information it deems necessary to provide an accommodation.
Managers must be aware of the issues in order to spot the warning signs and bring them to the attention of the appropriate individuals in the organization.
Proper documentation of employees’ performance and workplace conduct is essential. Specifically, clear and accurate records of any unacceptable performance or conduct must be made at or near the time of the behavior. This need not be an onerous burden; a single paragraph description of the incident or non-performance will often suffice. Failure to document leaves employers exposed to risky litigation by the disgruntled employee who may claim a discriminatory reason (pregnancy, age, race, etc.) rather than his or her own conduct as the true reason for the adverse employment decision.
Another consequence of not documenting such events is that it leaves the workplace events open to individual interpretation, perception or recollection of what happened and can lead to vastly different versions of the events after an employee has alleged a violation of a workplace law.
Documentation is also beneficial in the short term because of the message it conveys to the employee. Meeting minutes and written warnings send a clear message of what is expected of the employee, and, more importantly, can spur great improvement in performance and conduct.
Effective managers are those who not only know the rules, but who also understand how to best communicate those rules to staff. By following these four simple guidelines, you can strengthen your business platform and your peace of mind.