Employee Relations - Ten ways to make sure an employee will sue you

Lawrence F. Feheley
"I have studiously advised employers to avoid employee lawsuits, but no more. I now realize it is foolish to instruct them how to avoid legal fees. Follow this list, and you can increase the chances an employee will sue you. "

Hire anyone who has a pulse.
Every company wants to hire the best, but when applicants are scarce, employers are relaxed in hiring. Mistakes may stick you with an unproductive employee, or subject you to liability. While recruiting, don't inadvertently screen out potential applicants in legally protected classifications. Ensure applications are completed since they require written acknowledgment of certain legal considerations. Run background checks. Confirm conditional offers in writing.

Don't commit any personnel policies to writing.
The view that putting an employer's policies in writing limits management's discretion is outdated. Well-written employee handbooks are necessary for effective human resources practices. Reliable handbooks are beneficial because they reflect the purposeful compilation of an employer's policies and policies required by law, while helping to define and resolve employee complaints or disputes. A handbook acknowledgment page signed by an employee can be a valuable in any lawsuit.

Pay everyone a salary so you don't have to worry about overtime.
Everyone knows that an employer doesn't have to pay overtime to an employee who is paid a salary, right? Wrong. The Fair Labor Standards Act requires that employees working more than 40 hours in a week receive overtime, at time and one-half their regular rate of pay. But there are certain exceptions to the overtime requirement for exempt employees - white-collar employees.

Manage employee performance through payroll deductions.
In many cases, federal wage-hour laws prohibit penalizing an employee financially for work-related problems. Deductions from an exempt salaried employee's compensation will most likely destroy the overtime exemption, exposing the company to overtime liability.

As long as you have a written Equal Employment Opportunity statement and a workplace harassmen policy, don't worry about training and education.
Employers need to have written anti-discrimination and workplace harassment policies that outline effective complaint procedures. Even the best-written policies are of little value if employees don't know about or understand them. An effective harassment prevention policy and complaint procedure can be a defense for workplace harassment or punitive damages. But, be sure managers know and understand the policies, and invest the time to provide appropriate training (documenting that it occurred).

Ignore the Family Medical Leave Act because it's too much trouble and paperwork.
FMLA law requires that eligible employees be afforded up to 12 weeks of unpaid leave in a 12-month period, if they encounter a qualifying condition. Employers must adopt and publish a FMLA policy. But an employee does not have to specifically request FMLA leave. Instead, when an employee requests time off and alerts the company about a potentially qualifying condition, the company must determine if FMLA leave is applicable and notify the employee within two business days how the absence will be treated.

Encourage the candid and unrestrained use of e-mail among employees.
Workplace e-mail messages are at worst, defamatory, harassing or indelible evidence of illegal conduct. Because e-mail histories are increasingly appearing in litigation, employees must be cautioned not to commit anything to e-mail that they wouldn't want published in the newspaper. Asserted rights of privacy on the part of the employees is an issue regarding written e-mail policies. Most jurisdictions permit a private employer to monitor and inspect transmissions on company-owned systems. Remember to include an explicit statement in your e-mail policy that e-mail conversations may be monitored, and employees should harbor no expectation of privacy in using the system.

Quell dissent by quickly getting rid of complainers and troublemakers.
It's natural to want to get rid of problem employees, but that can be grounds for a retaliation claim. Difficult situations arise when an employee files a discrimination claim, and then performs so poorly that discipline or termination is appropriate.

Test the legitimacy of disciplining a problem employee by assessing proposed discipline against other employees who haven't filed charges or complaints.
A clear track record of similar discipline is a good basis to show that retaliation was not a factor.Since your employees serve at-will, fire them frequently and without warning. At-will employment means employees can be discharged at any time and for any reason. Nonetheless, employees still cannot be fired for reasons that are prohibited by law, such as discrimination or protected conduct. At-will employees cannot be fired contrary to a specific promise, or for violating an important public policy or statute. Use caution with the manner in which employees are terminated, since the process can impact pursuit of a claim.

Don't document anything and trust the judicial system.
Proper documentation of employee misconduct, attendance and unsatisfactory performance is essential for proper evaluation. Good documentation requires drafting the document as though written for a third party, signing and dating it, including details about the conduct involved and disciplinary history, and having the employee sign the document (or noting the their refusal). Make it a habit to put all events of significance in writing.

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