Inside counsel and outside lawyers spend plenty of time trying to prevent and avoid litigation. When you prevent a problem or dispute that could lead to a lawsuit from occurring, that is a success in everyone’s eyes.
Employers and employees will always have disputes, but you can prevent some common problems from arising. Those handling employees and employment issues must know the applicable laws and regulations, as well as their company’s own policies and procedures. They should be taught the best practices to ensure their employees’ success and how to avoid workplace problems. Beyond that, focusing on key events in the employee “lifecycle” can be instrumental in choosing the path to a harmonious employer-employee relationship. Many common and expensive employment lawsuits can be prevented by making careful decisions on:
- Who to hire
- How to treat those hired
- What to do when employees complain
- How to handle claims they bring prior to litigation
First, make the best hires. Many employees who ultimately end up suing their employer should never have been hired. A good portion of them were under-qualified, a poor fit, interested in the job for the wrong reasons, had a checkered employment past or had bad attitude from the start. If these factors had been properly identified, the individuals would never have been hired and would not have been around later to sue. To prevent poor hires,
- Companies should have clear expectations for each position and the necessary qualifications and skills.
- Those involved in hiring should be experienced and well trained in how to find the best candidates among applicants.
- Procedures for seeking applicants and interviewing them should be well-thought-out, fair and consistently followed.
- Proper and thorough background checks must be conducted.
- Red flags identified should be carefully analyzed before any individual is allowed to become an employee.
Second, treat employees with respect. Too many lawsuits are driven less by the substantive issues and more by the employee’s feeling that he or she was mistreated, disrespected or “wronged.” Often, when presenting bad news such as a termination or discipline, or even just someone not getting a promotion or a pay raise, the difference in whether it turns into litigation or remains just a disappointment for an employee is how the news is delivered. For instance, when an employee has to be terminated, doing it professionally, without unneeded emotion, providing a good explanation and with privacy and dignity for the employee, can make a huge difference. In contrast, when a terminated employee is paraded through the workplace with security in tow holding a box of their personal items while all their co-workers stare – and yes, this does still happen – the anger and embarrassment from being treated that way can drive an individual to sue when otherwise he or she might have just put their energy into finding another job and moving on. When employment actions have to be taken:
- Explain the reasons to the employee.
- Address any concerns or disagreements the employee might raise.
- Make sure everything is done in a humane but business-like manner.
Third, seriously respond to employee complaints: When employees build up the courage to complain about harassment or discrimination at work, their complaint must be taken seriously and promptly investigated. This is not just because legal compliance and defending against claims requires this response. It is because the message sent when complaints are dismissed or never followed up on is of an employer that does not care or does not want to do the right thing. Employees who get this feeling and have other employment options and are often your best employees will leave. But those without options will stay, and eventually, if they continue to feel harassed or discriminated against or feel retaliated against for complaining, they will pursue their complaints. These issues will be much more difficult to resolve and much more challenging to defend in litigation if there is proof that the complaints brought to the company were not seriously handled and investigated. Even where the complaint has no merit, how you handle it speaks volumes and directly correlates to the likelihood of ending up in litigation with that employee or others who learn how the complaint was handled.
Finally, thoughtfully handle claims prior to litigation: In many types of employment litigation, the employer gets a “dry run” before a lawsuit is filed. Laws such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act require employees to bring an EEOC claim prior to any lawsuit. Likewise, other laws, such as the Fair Labor Standards Act and the Family Medical Leave Act, permit employees to complain to the Department of Labor, even if this is not a prerequisite to litigation. How a company responds to such a complaint will greatly affect whether litigation ultimately occurs, who sues (the individual or the government agency) and how it may turn out. The position the company takes, especially in a written position statement to the EEOC which can (but should not) be prepared without counsel, can lock a company in and limit its ability to defend itself in a lawsuit. The EEOC’s process also offers the opportunity for mediation that might be helpful in the right case, either as a way to resolve the matter or just as a way to better understand the issues and the parties’ respective facts and positions. Ultimately, an agency complaint is often a final chance to address a matter before litigation. Taking a big picture view, getting wise counsel, and addressing the matter seriously, carefully, and with the appropriate time and resources, can help turn an employment relationship that is on the brink of “failure” and litigation into a better, and perhaps successful, outcome.