Be Fair, Be Consistent, Avoid Lawsuits

ORLANDO, FLA.—Want to know how to avoid lawsuits against your organization?

Train your managers, employment law attorney Aaron Zandy, SPHR, told a packed room at his early morning session at the 2014 SHRM Annual Conference & Exposition on June 24.

“HR professionals don’t get companies sued. Managers get companies sued,” said Zandy, a trial lawyer with Ford & Harrison LLP who represents employers.

It’s critical to explain to managers why your company policies and procedures are important.

“Be fair. Be consistent. No surprises.” That’s what HR professionals should drill into managers and supervisors, he said.

He offered the following top 10 reasons companies get sued by employees and some possible solutions:

1. Failure to train managers. When a case goes to court, he said, “My HR professional is always my star witness. It’s the manager I’m always scared of. I’m never quite sure what they’re going to say.”

Typically, the manager at the center of an employee’s lawsuit is a bad manager who has been tolerated far too long, or a new manager who hasn’t received adequate training, Zandy said.

Teach them about the company’s equal employment opportunity and anti-harassment policies. “Make sure they understand that harassment can take place inside and outside the workplace,” he said. Ensure they know they will be held to the same high standards when posting to Facebook or out at the local bar as they are at work.

2. Failure to document. HR professionals understand the need for documentation of each step in progressive discipline, but often managers don’t.

“Documentation shows fairness, and shows jurors and judges that the manager’s response wasn’t a knee-jerk reaction,” Zandy said.

3. Failure to manage in person. Managers who fire off angry e-mail messages to their staff should understand that they might be called to the witness stand to explain their messages, he said. In this electronic age, many managers don’t recognize the importance of face-to-face communication or the need to show appreciation.

“If they like you, they won’t sue you. Happy employees don’t sue.”

4. Failure to be thorough on performance evaluations. When managers don’t get performance evaluations done on time or don’t carefully consider what they write, employees get upset and feel unappreciated, he said. Conversely, when managers want to fire someone, but their evaluations have been glowing, it’s hard to explain to a jury.

“Good evaluations win lawsuits. Bad evaluations drive settlements,” Zandy said.

If you need to terminate an employee, diversify the risk by getting a second person involved in the decision, he advised.

“Proving discrimination cases is very hard when you have two people. People think one person can act badly on their own. People don’t think that people conspire,” he said.

5. Failure to address work conflicts. Managers often are uncomfortable with conflict and tend to ignore it, creating unhappy workers. Urge managers to call HR, the professional conflict-resolvers, because “unhappy employees sue.”

6. Failure to apply policies consistently. Enforce a policy for one employee, but not for another—and guess what? Your company will lose the court case every time. Inconsistent enforcement opens the door for the employee’s attorney to allege discrimination, Zandy said.

7. Failure to follow up on complaints. When you’ve investigated an employee’s complaint and reached a decision, let the worker know how it turned out. Frequently, managers and HR professionals believe—wrongly—that the results are confidential. While certain details may need to be withheld, notifying the employee of the general outcome of their complaint shows you care, Zandy said.

8. Failure to pay correctly. Wage and hour lawsuits are on the rise. This is the only area of law that requires the employer to prove its managers didn’t do anything wrong, Zandy said. While managers might consider rules and procedures surrounding pay to be a pain in the neck, they need to know what could happen if the company faces a lawsuit or a U.S. Department of Labor audit.

9. Failure to administer leave. Currently, 32 states have proposed legislative changes to extend leave time, Zandy said. More lawsuits are being filed alleging technical violations of the federal Family and Medical Leave Act. It’s complicated stuff. Give managers just enough information so they know when to contact the HR team, which has a detailed knowledge of leave laws.

10. Failure to treat employees with dignity and respect. “Employees just want to be loved. Good, compassionate employers embrace this stuff,” Zandy said. “At the end of the day, treating people with respect, compassion and understanding, and really listening and embracing the whole process, understanding that people truly are our most important asset … that’s what avoids liability.”

Dori Meinert is a senior writer at HR Magazine.