Help Avoid Employee Lawsuits by Being Fair


Employers will incur expenses as soon as a worker files a claim. That's why the best way to win a lawsuit is to avoid it altogether—and HR professionals can help by ensuring the company's processes are perceived as fair.

There are a number of steps employers should take to ensure they have effective policies and practices in place—like keeping job descriptions and employee handbooks up to date—but being consistent and fair can go a long way with employees.

"Fairness" is not a legal concept, according to Penny Wofford, an attorney with Ogletree Deakins in Greenville, S.C. "We don't have to prove that we were fair to an employee," she said during a concurrent session at the SHRM 2017 Annual Conference & Exposition.

Rather, fairness is a matter of a person's perspective. If employees feel that they were treated fairly, even when they have been disciplined or fired, they are less likely to file a lawsuit.

HR professionals can help convince an employee that the company's disciplinary processes are fair by ensuring that:

  • There is a rule and it is in writing.
  • The rule was communicated to the employee.
  • The employee clearly violated the rule.
  • There are defined consequences for violation.
  • The company has consistently disciplined others for the same offense.

Wofford said this may sound simple, but front-line supervisors might choose to ignore some situations to avoid conflict. Front-line supervisors are the face of the company to employees. Therefore, if a supervisor said, heard or ignored something, that means the company said, heard or ignored it, too–which is why supervisor training is so important.

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For example, if an employee comes to work late every day and the supervisor ignores it, that means the company isn't enforcing its attendance policy.

It may seem obvious that an employee who is late every day is breaking the rules, Wofford noted, but if a supervisor doesn't say anything, the employee may think it's permissible.

"You have to communicate the rule," she said. "If you have a lax rule or lax enforcement, you're encouraging employees to break the rule."

Be Proactive

Wofford said employers should be proactive. That doesn't mean they should make rash decisions, but they shouldn't postpone difficult ones. Instead, they should manage challenges head on.

Employers don't want to get into a situation where an employee senses that disciplinary action is coming and "throws on a protective coat" by, for example, requesting leave under the Family and Medical Leave Act.

To be proactive, HR departments should make sure supervisors are trained to promptly and fairly handle disciplinary actions. She recommends:

  • Following the company's disciplinary process.
  • Documenting verbal counseling.
  • Obtaining signed acknowledgments (or documenting it when an employee refuses to sign).
  • Disciplining in private but with a witness when possible. Generally an HR representative and the supervisor can hold the meeting together.

Wofford added that employers should conduct prompt and thorough investigations and preserve key evidence in case there is a lawsuit. It is also helpful to have standard disciplinary forms for supervisors to fill out to help them with word choice and consistency.

"Make sure the forms are dated," she said, adding that timing is often an important factor in litigation.

Consider the Jury

Sometimes litigation can't be avoided. If a worker must be let go and there isn't much documentation about the reasons, an employer may want to offer a severance package in exchange for a release of claims. Spending money on a severance package isn't ideal, but it can later be used as a training opportunity for supervisors to show them why documentation is so important.

If a disgruntled employee ultimately does file a lawsuit, fairness goes a long way with a jury, too. "Can you show that the employee knew the rule, received warnings, was given an opportunity to correct the behavior and still violated the rule again anyway?" Wofford asked. "If so, a jury will usually perceive that as a fair process."


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