How do I Guarantee Not to Get Sued by an Employee?
By Sarah Zasso, SHRM-SCP, SPHR
So, how can you guarantee not to get sued by an employee? The answer is—are you ready for it?—you can’t. I’m sorry to say that I nor anyone else can ever “guarantee” that you won’t be sued by an employee for wrongful termination, failure to hire, promotion/demotion, disciplinary action, investigations, etc. We simply can’t control the actions of others. Even if everything is done right—even if every “i” is dotted and every “t” is crossed. Even if it was all handled with respect and by the letter of the law. That’s the reality, there is no guarantee. That’s the bad news.
However, there is good news! There are many things that you can do to try to prevent a lawsuit, reduce your risk, and put yourself in a more defensible position if legal action is taken against you or your company.
We currently live in a litigious society where every employment action must be considered with a legal perspective. What is an employment action? Generally, that is referring to hiring/firing, promotions/demotions, internal investigations, pay/wages, disciplinary action and so on.
What can employers do to reduce risk and put themselves in more defensible positions?
Know and follow the law! Ignorance of the law is not an excuse for an employer. Understand which laws apply to you—federal and state (laws are different in each state). Depending on the number of employees you have, certain laws and statutes apply to you. For more information, visit http://www.dol.gov/compliance/guide/index.htm.
Have a handbook! A handbook is a wonderful tool and can be one of the biggest pieces of your defense. A handbook serves two very simple, yet important functions. It tells the employee what to expect from the employer (PTO, holidays, pay day, legal, etc) and tells the employee what the employer expects from them (Harassment Policy, Violence Free Workplace Policy, Standards of Conduct, etc). Ensure that each employee signs a handbook acknowledgement upon hire and review/update your handbook every 1-2 years. Not only does the handbook and acknowledgement form help you from a legal perspective, it also helps you with unemployment claims if an employee was terminated for cause for a violation of a policy. Note: Be careful with handbooks/acknowledgements and have them created/reviewed by a professional because there are additional legalities to consider, such as implied contracts. There is specific verbiage that should be included in handbooks (depending on state) to ensure clarity and protection.
Be proactive! We are busy. I get it. But taking the time to ask some questions when you start noticing abnormal behavior (employee who is normally outgoing and happy is now quiet and reserved) can prevent situations in the future.
Say something! If you (referring to managers/supervisors) see something, say something. If an employee knows that you observed inappropriate behavior and didn’t do anything about it, they will think it is okay and will continue. As will others. If you allow repeated violation of a policy, that then becomes “practice” and that can hurt you in a lawsuit.
Be consistent! You must apply the policies equally. I’m not saying not to take into account length of service (someone with you for 10 days vs. 10 years) or past disciplinary action, etc. I am the first to admit that Human Resources is very gray vs. black and white, but all things being equal, treat everyone the same. Ask yourself if you want to hold someone accountable—“Would I hold my top performer accountable the same way as my bottom performer?”
Maintain appropriate documentation! Let’s be honest, none of us like documentation. But, it is the key to a strong defense if you should ever find yourself in litigation. Former coachings, verbal warnings, disciplinary actions are critical. If conducting an investigation, document conversations the same day if possible, but within 24 hours. Document conversations with all parties. Ask the employees involved for statements as well. Sometimes, the best defense is an employee’s own statement. Statements serve many purposes – the employee feels respected and they feel heard, it can demonstrate that you conducted a thorough investigation, and statements often confirm or provide new information. Document the “why’s” behind other employment actions such as, hiring, firing, demotions, layoffs, etc.
Respect everyone involved! We are human, we have emotions, but it is important to treat everyone with respect throughout the process—whether it is a termination with cause or an application rejection. You may find that “respect” can make a huge difference in current and former employee’s attitude and behavior towards your company.
Do the right thing! Clients often ask me, “Is this legal?” However, that should not be the only question. Just because it is legal does not mean that it is the “right thing” for the employee or the company. I run my business on the thought process of “Treat others as you want to be treated.” Ask yourself before you make a decision that is questionable: “Would I want someone to treat my Mom/Dad this way? My Son/Daughter? Wife/Husband?” If you have to “question” it, take a step back and verify first that it is legal to take that action, then determine if it is the right thing to do.
I know it can be scary navigating the world of litigation and employment law. Employment law is fluid and continues to change. Court decisions from five years ago are now being overturned. I’m not trying to scare you, but educate and prepare you. I hope you never have a lawsuit, but if you do—make sure you have reduced your risk and put your company in a more defensible position. Before you make a decision on an employment action, ask yourself: “Can I defend this on the stand in a court of law? Do I know the law?”
Sarah Zasso is the Owner/Principal HR Consultant of Sabeza HR (www.SabezaHR.com), a Human Resources Consulting and Recruiting company serving the United States. Sarah has almost 15 years of Human Resources experience, achieved both the SHRM-SCP and SPHR certifications, earned a Bachelor’s degree in Organizational Leadership and Communication, and currently serves on the Board of the Coastal Organization of Human Resources. If you have any questions or would like to schedule a consultation, please do not hesitate to contact Sarah at [email protected].
This article is for general information purposes only. I am not an attorney; accordingly, the information presented is not legal advice, and is not to be acted on as such.
