Employment practice lawsuits have shot up in the last decade, remaining the top dispute companies have to battle.
They’re costly, they’re tough to defend, and they can do a lot of damage to an organization’s reputation. It’s clear that HR leaders need to pay attention to the high risks that untended employee relations can create.
Without proper training and leadership from a capable human resource department, actions and decisions from management can put the entire organization at risk.
Staying abreast of policies and practices
Mitigating employee-related litigation risks starts with education and awareness. Your average manager doesn’t have the time to stay abreast of the latest HR legislation or even company-wide policies and practices.
The question is: “Does your management team know how their daily actions could affect the future of the organization?”
It’s important to educate management on when to consult human resources or seek for further information when dealing with an employee situation that may be out of his or her depth.
1. Sweeping harassment under the rug
Employees don’t always go straight to HR with their workplace issues; they may go to a direct supervisor instead.
It makes sense. They feel comfortable and interact with the supervisor regularly and line managers presumably have more context around the issue if it involved another employee. Since harassment claims can also affect an employee’s deliverables, they often come out during performance reviews or when an employee feels defensive, cornered or vulnerable.
The problem is that management may not know what the proper procedures are for handing issues that should be directed to a HR professional. Even the smallest, seemingly frivolous of complaints must be documented and taken to HR for an assessment of the issue.
But most managers don’t know how to make that distinction or when and how an issue should be escalated.
Make it simple. Give your managers a 3 to 5 question checklist to know what is expected. Your managers have enough to deal with. Take the worry of corporate legal exposure off their plate.
The average cost of an employment practice litigation event is $70,267 regardless of whether or not there is merit to the claim. Without HR’s professional perspective, managers could be sweeping serious issues under the rug, and opening the organization up to costly litigation. Create a list of non-negotiable words within your organization “Uncomfortable” “Bullied” “Sexual” and “Harassment” should definitely go on that list.
2. Neglecting a proper documentation process
Proper and constant documentation is the strongest defense an organization can have to mitigate employee-related litigation risk. Sadly, performance documentation will often get lost in the shuffle of day-to-day work.
When managers aren’t making effective documentation a daily priority, they are laying the groundwork for any number of discrimination lawsuits.
Let’s say that Sally is terrible worker, has proven to be unreliable, shows up to work late and rarely meets expectations. As a member of a protected class, as defined by the EEOC, upon her termination, Sally can easily allege that she was discriminated against – that her termination was based upon her gender rather than her unacceptable work behaviors. Without the documentation that proves the termination was business appropriate and performance-based, the organization is in a serious danger zone.
Put plainly, constant documentation needs to be framed as a priority in the daily tasks of any manager. Give them context as to why these reviews and documentation are important and hold them accountable. Agree to a glossary of terms that both management, HR and executives can define and apply these to situations around performance for employees in every department.
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3. Reactionary firing
When an employee establishes a negative pattern of behavior at work, it can cause disruption and stress for co-workers and management alike. A manager’s last option is to fire the employee. While this sounds completely reasonable to the manager, what they don’t know could hurt the organization.
For instance, if the pattern of poor behavior or performance can be attributed to certain issues — like pregnancy or an illness — this employee may now be in a protected class. Depending upon how and when the organization was made aware of this could change the game.
If management did not allow the proper channels for correcting the behavior, he or she could also be costing the organization money from training and hiring costs associated with said employee.
Reactionary firing should be considered off limits. Managers need to collect all information, run the proposed termination through HR and then settle on an educated decision. The policies and procedures that HR creates for just these situations should be transparent, communicated to all stakeholders and accessible at all times.
The rise of social media has thrown a whole new beast into the mix of employment practice risk. The temptation to fire or discipline an employee for what they put on their own social media accounts is understandable, but dangerous.
As Robert McHale, who handles corporate practice at McHale Law, put it:
Given the high potential for damage to an employer’s business that can arise from an employee’s irresponsible use of social media, employers are increasingly monitoring and disciplining workers over such misuse. Such activities, although primarily motivated by sound business-related reasons, are nonetheless subject to legal scrutiny, putting employers at risk of monetary fines, reinstatement of terminated employees, payment of lost wages, and other damages.”
The best practice in this instance is to instruct all managers to stick to professional boundaries. No manager has any business being on an employee’s Facebook page, or scrolling through his or her Twitter feed. While it’s not illegal to do so, it is also not smart.
But even in this cut and dry space, there are gray areas, particularly in creative fields. Create policies and processes for your organization and ensure that both management AND employees are aware of the policies and the consequences for violations.
The need to mitigate risk
Ignorance is not bliss when it comes to employment practice lawsuits. Managers need the expertise and guidance of a strong Human Resources team to help them avoid and mitigate daily risks.
As our society grows more litigious, management needs to know how their actions could unwittingly bring litigation risks to your front door. Do your part to mitigate risk by creating a simple, accessible system that leaves no room for doubt.