Building Your Best Defense to an Employment Lawsuit BEFORE it Happens!

Let’s face it, when contemplating whether to terminate an employee, you can’t help but cross your fingers and hope your decision doesn’t result in your company being slapped with a lawsuit. The reality of employment lawsuits is that some employees will sue no matter how perfectly you handled the situation. When such litigation arises, the actions you take during the employment relationship with the yet-to-be-fired employee’s can make all the difference in whether you win or lose the lawsuit.
 
•     Get in the practice of keeping GREAT written records during the course of every employees employment and not just hire paperwork and termination paperwork.
•     Conduct quarterly employee reviews not associated with a raise – i.e. not just once/year
•     Make sure you communicate your concerns to employees on a regular basis and that you write those concerns up and place them in their employment file
•     Be sure to discipline employees making sure the punishment fits the crime
•     Utilize a written performance improvement plan to document the issues along with proposed solutions and a time frame in which the employee must remedy their poor performance or behaviors.
•     Let employees know what to expect from you and what you expect from them before there is a problem – who doesn’t love to say “I told you so!”
•     Don’t keep good records on only the “bad” employees because good employees can turn into bad employees overnight.
•     Have a written termination procedure policy that will work well in your organization. For example if your company has customer lists or trade secrets that must be protected from a to-be-terminated employee, you might not consider a 3 strikes and you are out policy because the employee would know that their fate is near and might access the protected information.
•     Provide training to employees annually on workplace policies; especially on sexual harassment.
•     Take complaints seriously of ALL employees and conduct an investigation commensurate with the level of concern expressed by the employee.
•     Remove managers and supervisors who contribute to a hostile work environment
•     Conduct background checks to make sure you aren’t negligently hiring new employees that would put your current employees at risk.


By Kristi M. Weikel, Principal Attorney and David L. Monroy, Of Counsel