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Employee litigation: some proactive steps for prevention and mitigation

Employee litigation: some proactive steps for prevention and mitigation

As an employer, chances are you’ll be sued by an employee at some point. While there’s no way to prevent a disgruntled worker from initiating a lawsuit, there are some simple steps you can take to assist in your defense if a lawsuit is filed against you.

            — Have an employee handbook that explains such company policies as anti-harassment, anti-discrimination and equal employment opportunity. The law requires that employers follow these policies, even if they’re not outlined in an employee handbook. 

            — Your anti-harassment policy should discuss the types of harassment that will not be tolerated and are against the law. Be sure to include harassment based on sex, race, color, disability, religion or national origin. You must not only have these polices in place; you must actually follow them.

            — Remember that you’re responsible for your employees’ actions while they’re under your control. Make sure all of your employees review and understand your anti-harassment policy. This will go a long way in both helping to prevent harassment, thereby preventing lawsuits, and providing a defense if you are sued by an employee due to another employee’s actions.

            -- In addition to the anti-harassment/anti-discrimination policy, you should have a clearly outlined complaint procedure for employees to follow if they are victims or have witnessed discrimination/harassment by a coworker. The procedure should clearly define the steps an employee should take when reporting discrimination/harassment. For example, your policy could state that employees must make claims in writing, or follow-up an oral claim with a written complaint. You could also stipulate a certain time frame from the date of the alleged harassment in which complaints must be made. 

            The policy should state that an employee can report harassment to any manager, owner or officer of the company. If you require reporting to a specific person and an employee does not feel comfortable with that person, he or she may decide to not report the harassment at all. As the employer, you have thereby helped create a barrier to enforcing your complaint policy.

            — You should also have a written equal employment opportunity policy that states that your hiring, promotion, termination, compensation and layoff practices do not discriminate based on race, color, religion, sex, age, disability or national origin. Again, establish a formal complaint procedure for anyone who feels they have been discriminated against based on these criteria. Your complaint procedure can be the same procedure you use for any harassment claims.

            Make sure you not only have such a policy but actually follow it and hire, promote, terminate and compensate based solely on qualifications. Be careful to not discriminate based on the protected classes. Since you are responsible for your employees’ actions, it’s a good idea to limit the employees who have the ability to make employment decisions to those you know will follow the policy. 

            — Provide a clear written job description for each employee’s individual position. This will be useful if you need to substantiate firing an employee for failure to adequately perform his or her duties.  If you don’t have a written job description, it becomes more difficult to establish that an employee was fired based on failure to meet those specific requirements. 

            The circumstances surrounding an employee’s termination have a great impact on whether the employee is prevented or disqualified from receiving unemployment benefits.  If the person is terminated for good cause, as defined by the Department of Labor, he or she will be disqualified, at least for a period of time.  The amount of money you must pay for unemployment insurance increases when your employees file for and receive benefits. Therefore, if you terminate an employee for good cause, make certain you have the reasons well documented to assist you in a dispute.

            It’s also important to be able to specify the reasons for an employee’s termination, even for those who are at-will, in cases where the employee files suit against the employer for violations of anti-discrimination laws. If an employer is sued for such violations, the best defense is showing a valid reason (failure to adequately perform his or her job duties, for instance), which is unrelated to any sort of discrimination, for the basis of the employee’s termination. 

            One way of establishing that an employee failed to adequately perform his or her job duties is to keep a written record of any unsatisfactory performance or disciplinary actions in each employee’s file. The employee should sign these written records acknowledging that he or she received notice and a copy of the written documentation. The employee does not have to agree with what is stated, he or she must only acknowledge that he or she received notice of the issues. 

            While every employer thinks they hire only honest, hardworking employees and there will never be a problem or lawsuit, that’s not always the case. Many companies find themselves being sued by, or being forced to sue, a former employee. The steps outlined above are some basic procedures that can assist you in any civil litigation. While there’s no guarantee that you’ll win in court, these steps will help with that likelihood.

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