Webinar Recap: The Top 10 Mistakes That Lead Employers to Be Sued

3) When discharging a problem employee, make sure performance evaluations, pay increases, and any other documentation are consistent with the reason for separation of employment.

And be aware of any other emails or documentation that may contain sarcasm or personal attacks against the employee and manage accordingly. If the employee is performing poorly and that is the reason for discharge, consider placing the employee on a performance improvement plan, providing feedback consistent with the outline in the plan, and managing the employee in that manner. Sometimes, however, it is just time to separate with an employee, and if that is the case, partnering with your legal counsel to understand the legal risk is advisable. 

4) Make sure you are documenting performance, complaints, misconduct, and any discipline or action taken to resolve the issues.

Leave commentary out of your documentation – just deal with the facts. The absence of documentation can turn a defensible claim into a settlement opportunity for the employee. 

 5) Make sure your employees are clocking in and out.

This data will be critical for defending against unpaid overtime and misclassification cases. If the company is audited for pay practices or is in a lawsuit for unpaid overtime, the employer has the burden of proving compliance with wage and hour laws. Good documentation will be critical.  

6) Don’t succumb to paralysis by analysis.

Some employers will take a hands-off approach to employees who have filed complaints or discrimination charges. But these employees should be managed as you would anyone else. Keep the complaints and knowledge of charges filed close to the vest. 

7) Know that the National Labor Relations Board (NLRB) protects all employees – even those at companies without unions.

The NLRB allows all employees to engage in protected concerted activity, a term used to describe two or more non-management employees discussing terms and conditions of employment. Employers should be careful not to tell employees they cannot discuss salary, wages, or bonuses or discipline employees for talking collectively about working conditions. 

8) If OSHA arrives at your door for an inspection – take it seriously. Don’t give them a tour and let them watch employees work or let them wander your workplace on their own.

Establish the scope of the inspection and keep the investigator within that scope. Be polite but firm with the investigator and always stay with them. Remember that anything you say to the OSHA hearing officer is an admission, and you have the right to counsel being present if the hearing officer wants to interview your employees. Retain counsel for serious injuries or fatalities. 

9) Employee complaints should be taken seriously and appropriately investigated.

Make sure that when you need to investigate complaints, the investigation is thorough, you document everything, and take any appropriate remedial action. Be thoughtful about the investigator you choose to conduct the investigation. Make sure the policies involved have been followed and that you address any ancillary issues. As you conduct your investigation, make sure you collect and preserve any evidence, and when the investigation is complete, close the loop in writing. 

10) Carefully assess what steps should be taken when an employee requests leave, exhausts leave, or requests an accommodation.

Carefully assess the next step after an employee runs out of FMLA.  Ensure you are engaging in the interactive process when an employee requests an accommodation under the ADA. Know that a lateral transfer may constitute an adverse action. And don’t forget workers’ compensation issues.

One final reminder is to make sure your policies are up to date and current. Don’t let them gather dust. Make sure your employees are trained on the policies as appropriate and they know where to find the policies, whether they are in a handbook or online somewhere.

Conclusion

Management of employment issues and dealing with governing agencies is tricky. Mistakes, accidents, and bitter former employees are a reality. This list should help you cover your bases when it comes to common mistakes and be prepared in the event an employee decides to sue.

If you’re looking for more helpful compliance tips, guides, webinars, or videos, check out the GovDocs Resources Page, where you can find all of the above, and more!