Managers, team leaders and frontline supervisors today face an incredible number of challenges, including reorganization problems, competition on an international basis and the infusion of technology and attendant changes that follow. Coupled with these challenges is a network of complex employment and labor laws that govern conduct in the workplace. As a result, incidents of employment litigation are rising. In the 2011 fiscal year, the Equal Employment Opportunity Commission received a record number of charges (99,947), the highest number in its 46-year history.
There is no indication that employment discrimination cases will drastically decline in the near future. Certain types of workplace behavior have repeatedly presented a problem for employers in the litigation arena. As demonstrated below, the analogy of a landmine is quite appropriate—failure to abide by these basic principles is analogous to stepping on a landmine and later hearing the explosion. By paying attention to the landmines, however, managers and supervisors can minimize the risks of, or even avoid altogether, the explosion of litigation.
- Managers should give themselves a “Miranda warning”
We have all seen television police dramas and can probably recite Miranda warnings despite not practicing criminal law. In-house counsel and human resource professionals already know that when dealing with a sensitive issue or a particularly difficult employee, anything you say or do can be used against you in a court of law. However, most front-line managers do not instinctively approach workplace situations with this mindset. Guiding supervisors to think like this in thorny situations may help prevent some situations from growing exponentially worse.
The most important lesson with regard to email, voicemail and other electronic communications is that they never go away. Managers must proceed with the assumption that all messages are stored within the computer and can be retrieved at some point. Thus, any email that contains any even slightly inappropriate content can have a devastating impact during litigation (even if it is not directly related to the central issue).
In communicating electronically, supervisors must remember to be sensitive to all of the comments, jokes or even slight suggestions that could be considered inappropriate in the workplace. In particular, when creating electronic messages, supervisors should remember that every word could be retrieved in litigation and made public.
- Adequate training for supervisors
Managers and supervisors are often the first to know of problems and issues that arise in the workplace. Managers can be the eyes, ears and voice of the employer. Therefore, it is imperative that managers receive adequate training not only to deal with issues, but also to recognize when issues should be taken to human resources or the legal department.
Training should cover not only “normal” topics like anti-discrimination or anti-retaliation procedures and policies, but also current issues that may be applicable to that particular employer, such as social media and telecommuting.
- Realize that employee comments can be vague, but action is required
Most employers have an intergenerational workforce and with that comes different styles and methods of communication. Sometimes employees (from all generations) can be vague when making requests or complaints regarding the workplace. An untrained supervisor may inadvertently help build the employee’s case if the supervisor is not properly equipped with the necessary tools and information to respond to the employee.
Recent developments highlight areas where an employee may make a vague statement that nonetheless triggers potential liability for the company. For example, the Supreme Court recently held that the anti-retaliation provision of the Fair Labor Standards Act protects employees who make verbal complaints.
Another potential hotspot where employees might be vague is a request for an accommodation. Prior to the amendments to the Americans with Disabilities Act (ADA), much of the litigation focused on whether an individual’s impairment was a disability. However, after the enactment of the ADA Amendments Act, the best course of action may be to presume the impairment is a disability.
An employer has a duty to engage in a good faith interactive process with an employee upon receiving notice of the employee's disability. The interactive process requires a good faith exchange of information between employer and employee. However, courts have interpreted the regulations to place the burden on the employer to take the initiative and request additional information it deems necessary to provide an accommodation.
Human resources (and/or internal legal staff) can help detect the landmines before they explode. However, managers must be aware of the issues in order to spot the warning signs and bring them to the attention of the appropriate individuals in the organization.
- Document, document, document
Another widespread litigation landmine is proper documentation. Proper documentation of employees' performance and workplace conduct is essential. Specifically, clear and accurate records of any unacceptable performance or conduct must be made at or near the time of the behavior. This need not be an onerous burden; rather, a single paragraph description of the incident will often suffice. Failure to document leaves employers exposed to risky litigation by the disgruntled employee who may claim a discriminatory reason (sex, age, race, etc.) rather than his or her own conduct as the true reason for the adverse employment decision.
Another consequence of not documenting such events is that it leaves them open to individual interpretation, perception or recollection of what happened and can lead to vastly different versions of the events at trial.
Documentation also is beneficial in the short term because of the message it conveys to the employee. Written warnings send a clear message of what is expected of the employee, and often can spur great improvement in performance.