Employment law litigations are costly and time consuming, however, actions can be taken to (a) prevent them and/or (b) create defenses to them. If you have an employee complaint, employment lawyers are going to want to see (or not see) the following:
- For all cases, we want to see your employee handbook, containing a complaint procedure, and an acknowledgement form signed by the complaining employee saying they received it, knew they had to read it and abide by it. There’s a defense to discrimination claims if the employee failed to utilize an existing complaint procedure. If the company first hears about the employee’s issue through a court-complaint, you should have the above in place.
- For most cases, we want to see the complaining employee’s hiring documentation – without comments suggesting discrimination such as “too old,” “looks pregnant,” “black.” We do not want to see employment application questions that address protected categories. Asking for graduation years can suggest an age discrimination claim; “what language is spoken at home” could support national-origin discrimination; “are you taking medications, or do you frequently miss work due to being ill” all can support disability discrimination claims.
- For cases claiming unpaid commissions, we want to see documents outlining how commissions are earned, how/when they are paid, what happens to unpaid commissions after an employee leaves, and any other details of commission payment as well as evidence that the complaining employee received and read the commission plan.
- For disability leave related cases, we want to see written communication with the employee from the start of the leave seeking information from his or her doctor certifying the need for leave and its expected length, granting an amount of leave (potentially conditionally until documentation is received), and following up with the employee if/when documentation is not received.
- For discrimination cases alleging bad actions by a manager, we want to see documentation of manager training on discrimination and harassment, along with the manager’s signature on the handbook acknowledgement form. Companies may not be liable for managers who act outside the scope of their employment – but you need to be able to show that you told the manager what that scope was. Individual defendant managers who acted inappropriately can be advised to get separate counsel and distanced from the company, if actions appear to have been take outside the scope of their employment.
- For non-compete/breach of confidentiality cases where your company hired someone who worked for a competitor, we want to see that you reviewed the applicant’s non-competition agreement before hiring them, were aware of any restrictions, and assigned the new employee to a position you did not believe would violate the agreement. We want to see that your confidentiality agreement advises employees not to use prior employers’ confidential information.
- For wage and hour cases, we want to see wage payment and time keeping records, including paystubs showing overtime wages, and anything required by your state law.
- For cases involving a reduction-in-force, we want to see documentation supporting the reason each employee was selected for lay off, along with a disparate impact analysis: did the selection method inadvertently target a protected group? For those targeted for “job elimination,” we do not want to see that position filled in any short order.
- For all terminations, we want to see documentation showing that the employee was given a real reason for the termination, unlike one client who learned a manager was viewing porn at work and promptly terminated his employment – saying the position was being eliminated (and then, yes, promptly filled it). Tell your departing employees the truth – it does not have to be the whole truth, but what is said must be accurate.
- For any litigation where the employee’s job performance will be an issue, we do not want to see performance reviews saying the employee’s performance and/or production was “satisfactory” when it was far from it. Give employees honest reviews – or do not do them at all.
An ounce of prevention is truly worth a pound of cure in this arena. In consultation with your employment lawyer, you can train your managers to get it right, and potentially avoid them taking improper workplace actions. You can also put in the policies and procedures you need to prevent employee lawsuits, or have defenses in place should disgruntled employees try to take a stab at the company.
