5 Ways HR Can Help Avoid a Lawsuit

LAS VEGAS — HR professionals can help curb employment-related lawsuits by crafting prompt and appropriate responses to employee complaints, according to R. Scott Oswald, who represents employees as an attorney with The Employment Law Group in Washington, D.C.

Even if an employee's initial complaint is about a manager's, co-worker's or other business partner's conduct, HR always gets involved eventually, Oswald said at the SHRM Annual Conference & Expo 2021 on Sept. 10.

"How you get involved can make a big, big difference," he told attendees who were participating in person and online. Here are five tips Oswald had for HR professionals.

1. Don't ignore employee complaints.

Employee complaints put the company on notice that a problem needs to be addressed. When HR responds properly to a complaint, Oswald said, the employee is more likely to accept the results of an investigation or process. But employees who feel their complaints are ignored are more likely to contact a lawyer.

2. Don't skip procedures.

If you have a procedure for investigating employee complaints or a progressive disciplinary process for workers who violate company policies and you don't follow it, the jury will wonder why, Oswald said.

Employers should also be sure to discipline employees in the same way for the same problem; otherwise, they may leave themselves vulnerable to a discrimination claim.

"You've got to be consistent," he said. Applying policies unevenly invites a jury to believe that an adverse employment action was taken for an illegal reason. He noted that employee lawsuits increasingly have focused on the employer's failure to follow its own policies, and HR professionals may have to testify at a trial about what they did or didn't do to enforce policies. 

3. Stand up to the boss.

"HR is in a tough position," Oswald said. Sometimes a high-level employee refuses to follow a company policy, rejects HR's suggestions to improve policies and practices, or otherwise ignores HR's advice.

"Stand your ground," he recommended. When a manager's actions don't align with company procedures, he said, be sure to identify the conflict, show the manager the relevant part of the employee handbook and document any concerns in writing.

"You don't have to accuse anyone of wrongdoing," Oswald said. "Just talk about how it will look." He suggested that HR professionals ask the company's legal advisor for an opinion and consider escalating the issue to a higher level. If your boss is the CEO, go to the board of directors, he said.

4. Don't look the other way.

Employers may be tempted to ignore it when they observe misconduct in the workplace. "In law, we call this the ostrich defense," Oswald said. "You put your head in the sand." But this reaction could lead to liability. 

For example, according to the U.S. Equal Employment Opportunity Commission (EEOC), an employer can avoid liability for a supervisor's harassment that created a hostile work environment only if:

• The employer took reasonable steps to prevent and promptly correct the behavior.
• The employee bringing the claim unreasonably failed to take advantage of any preventive or corrective measures the employer provided.

"The employer will be liable for harassment by nonsupervisory employees or nonemployees over whom it has control (e.g., independent contractors or customers on the premises) if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action," the EEOC said in guidance.

Even if HR is not the "bad actor," the company could be liable if HR knew about the danger and did not take action, Oswald explained. To a jury, HR is the company and whether the company faces a big damage award comes down to whether the jury believes that the company is responsible.

5. Identify and prevent retaliation.

Oswald identified the following situation as a red flag for HR: An employee who was recently provided a reasonable accommodation under the Americans with Disabilities Act (ADA) complained to HR that his manager was not honoring the accommodation. The employee was subsequently laid off in a "reduction in force," but his was the only position eliminated and he had a good performance track record. A jury may conclude that the employee was laid off because of his need for an accommodation or because he complained to HR about his manager's failure to act in accordance with the approved accommodation.

Under EEO laws, such as the ADA, an employee cannot be retaliated against for engaging in protected activity. "When deciding to lay off employees, employers need to make sure that their decisions are based on business needs, rather than on a desire to get rid of employees with disabilities," according to the Job Accommodation Network.

Oswald said adverse employment actions should be taken with care, backed by facts and consistent with the law.