Five Steps All Employers Can Take to Minimize Liability
© Bob E. Lype, 2003
There are dozens of things an employer must do by law. And then there are things the smart employer will do in addition to minimum legal requirements.
Employment claims are difficult and expensive to defend, and the outcomes are hard to predict. Since juries are typically made up of persons likely to identify with employees, every employer wants to avoid ever having to go to court, and if you ever do go to court, you want your "exposure" to be as limited as possible. Here are five things employers can (and should) do to minimize liability.
Improve documentation. The most common gripe of lawyers defending employment claims is lack of documentation by the employer. Relying on one's memory is a dangerous proposition. All personnel actions and decisions should be documented, and the employer should have some uniform method and form for doing so. It is wise to have a form for disciplinary actions and routine evaluations which permits the employee to give input, since the employee's comments can alert the employee to problems and may, in some cases, be an acknowledgment that the employee was at fault. Supervisors should be trained about how and when to document things, as well as the importance.
Train your supervisors. Far too many employers view training supervisors regarding personnel matters as a burdensome, unnecessary task. By far the most employee lawsuits are based, in one form or another, on the words or actions of a supervisor. At a minimum training in equal opportunity laws is necessary. Not only can good training be part of a defense to liability in some cases, but good training can help avoid the lawsuit in the first place.
Have an effective complaint process. One of the easiest ways to learn about potential problems before a lawsuit or discrimination charge is filed is an effective complaint process. The complaint process should be clearly communicated to employees and uniformly followed. Complaints should be investigated, and if an employee has a valid complaint, appropriate action should be taken. If the process always ends in favor of the employer in one way or another, it will lose credibility as an "effective" complaint process. Never retaliate against an employee for filing a complaint.
Deal with "problem" supervisors. As stated above, most employee lawsuits are based upon some words or actions of a supervisor, and good training for supervisors is key. However, many employers fail to take proactive steps to address problem supervisors, even when they are aware of problems. If it becomes clear that a supervisor has problems which could expose the company to liability, at a minimum the supervisor should be counseled and further training should be considered. If more drastic action is required, the employer must take it. One of the worst situations for an employer is to watch evidence being presented to a jury that a given supervisor had repeated problems, which the employer did nothing to correct.
Periodically audit your policies, procedures and practices. Keep up with the latest developments in employment law. Review and update the forms you use, including job applications, interview procedures, job descriptions, handbooks, evaluation forms, leave forms, etc. Review your designations of exempt and non-exempt employees. Make certain personnel files are being properly maintained. Update required postings. If you are unclear about any particular requirement, ask your employment lawyer.
If employers will take steps to improve in these five areas, they will be in a much better position regarding most employment claims.