Most business owners understand that occasionally being sued by a prospective, current, or former employee is an unfortunate but somewhat unavoidable fact of business life. Still, there are steps you can take as an employer to mitigate your risk of facing employment litigation. In this article, we offer some practical tips for reducing the chance you will end up on the wrong side of a claim by an employee. We also offer tips for reducing the expense and disruption if a claim arises.
Model and Insist Upon An Ethical Business Culture
It sounds simplistic, but perhaps the first, best defense against employee lawsuits is to act with scrupulous integrity. The workplace culture you set as a leader can have the most impact on whether you face lawsuits from employees. Run a tight ship, you will keep employment lawsuits to a minimum. Play fast and loose, letting problem conduct and individuals slide, and you’re just inviting litigation.
Understand How Discrimination Laws Work
Intuitively, you know that lawsuits by prospective, current, and former employees usually result from decisions a manager makes. Decisions like hiring and firing, or whether to promote or otherwise reward a particular employee have the most impact. People get upset when they’re let go, or don’t get the raise or the title they think they deserve. They get particularly upset when they feel they were treated differently compared to someone less deserving. It’s sometimes easy for them to believe their treatment was based on unfair, unethical, or illegal criteria. In other words, they feel they were discriminated against. In our experience, discrimination claims constitute by far the most common employment litigation claims against employers.
Obviously, you can’t run your business walking on eggshells about whether someone is going to get upset about your choices. Making hard calls about human resources issues (sometimes upsetting employees and job candidates) comes with the territory. Just because you think one employee does a better job than another doesn’t mean they’ll agree with you. But you’re the boss.
What you can do, however, is pay particular attention to avoid the flashpoints of discrimination, and the types of discriminatory acts, that stir prospective or current employees to action.
Examples in Discrimination
- Common Categories of Discrimination Claims: According to the federal Equal Opportunity Employment Commission (“EEOC”), in 2017 the three most common types of discrimination claims were race, sex, and disability, followed by age, national origin, and color. As a business leader, it is critical that you ensure two things. Your hiring, firing, promotion, and compensation decisions cannot be illegitimately based upon these characteristics, even implicitly or unconsciously. And your business culture must not tolerate conditions that would fuel the perception that discrimination on these bases has occurred.
- Common Types of Claimed Discriminatory Action: The EEOC’s statistics also show that, historically, discrimination claims arise most commonly in connection with the discharge of an employee, followed by the terms and conditions of employment, harassment, employee discipline, hiring, wages, and promotion. Notably, actions that directly connote a negative judgment about an employee (e.g., firing, harassment, or discipline) prompt discrimination claims much more commonly than actions that convey indirect judgment (e.g., promoting or hiring someone else).
- Retaliation is Discrimination Too: It’s not just overt discriminatory acts that will cause an employer trouble. Discrimination laws treat retaliation against an employee who raises concerns about discrimination as an illegal act in its own right. This means employers must not only take care to avoid acting with discriminatory purpose. They also need to ensure that when an employee raises a concern, they treat it seriously. They must also go through an appropriate process to investigate. Thinking a particular discrimination claim is unfounded, overblown, or just plain ridiculous, does not excuse a failure to take steps to address it.
Have an Experienced Employment Litigation Attorney on Your Side
The categories above give a generalized overview. The laws and regulations affecting workplace practices and conditions are highly complex. It is not uncommon, in our experience, for even the most well-intentioned employers to run afoul of them without realizing or intending to do anything wrong.
At Dungan & LeFevre, we encourage our clients not to wait until they’re facing an employee lawsuit before consulting with our experienced employment law attorneys. Instead, we encourage them to ask an attorney to review and evaluate their employment practices from time-to-time. This helps to ensure that they remain in compliance and on the right side of the law. An ounce of prevention, guided by an experienced employment lawyer, can go miles in keeping claims from prospective, current, and former employees to a minimum, and in reducing long-term legal expense.
To learn more about how Dungan & LeFevre can help your business mitigate its employment litigation risk, contact us today.
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