7 Tips for Employers to Prevent Employment Suits (updated 2022)

Lead by example.

Employees treat the workplace and each other the way management treats the workplace and their employees. If you set low standards, your employees will set low standards. If you leave early every day, your employees won’t feel like they have to work a full day, either. However, if your employees see you working hard they will work hard. If you show your employees respect, they will show you respect. Setting a positive example will prevent negative situations from arising. Leave “do what I say not what I do” to your kids. (It probably doesn’t work there, either.)

What workers say online

Call it the great resignation, the effect of covid, a bullish stock market pumping up retirement funds–call it whatever you want–but employers struggle in today’s job market to find and retain employees. Social media is full of people quitting jobs where they felt disrespected and gleefully posting on Tik Tok and r/antiwork.

Whatever the correct explanation for changes in the job market people feel more free to explore new jobs and abandon old ones than any time in the past decade. Some employers explain this away as workers being lazy but that ignores the commentary shouted into the internet by workers across the nation. Employers who don’t adjust their thinking are going to fall behind as productivity slumps due to empty chairs.

The future of finding workers

If you think the struggle finding employees in a booming economy is tough wait for the second struggle that follows when the economy stops booming. In the 2000s we saw employees in Texas and around the nation gain more power in their careers due to increasing job opportunities that forced employers to offer better compensation.

When the economy cooled and markets crashed so did the job market. With people losing jobs and nervous about keeping what they had came a flurry of employment lawsuits challenging layoffs, individual wrongful terminations, pay cuts, discrimination and a host of other employment law claims. Undoubtedly we will see another wave when this bull market cools. Employers do not want to be on the wrong side of that trend, either.

Recognize that a widespread problem with your employees is a management problem.

Often problems occur by management setting a negative tone that makes employees neglect their work or workplace procedures. Even when one employee sets a bad example for other workers to follow, management has the opportunity to fix the problem. Getting rid of bad employees but keeping ineffective management means the problem is going to resurface. Even good employees can become less productive and flee poor working conditions.

This might not seem like an issue driving employment lawsuits but that’s not the case. When employees work in a high stress, negative, or unprofessional environment they tend to behave the same way. When employees or supervisors create friction in the workplace there is a greater chance that it falls into an unlawful context. It is not too hard to imagine an employee injecting sex, gender, race, etc. comments into an argument when they come to work every day feeling on edge.

Supervisors and employees can lash out which can give an unnecessary context to wrongful termination or employment discrimination lawsuits. Employees may also assume a worse context for workplace activity which can lead to litigation even if the employer ends up winning the day.

Manage management, too.

The cause of most employment suits are the acts of front line managers and their immediate supervisors, not high ranking management. Often these low level managers receive little supervision, especially when it comes to personnel management. They tend towards productivity by their supervisors and the personnel issues fall through the cracks. Instead, leverage human resources to assist these employees and make sure that all levels of management are receiving the appropriate level of supervision.

In employment law there is a liability theory known as cat’s paw. This references the Aesop’s fable The Monkey and The Cat. In this fable a monkey convinces a cat to swipe into a pan of chestnuts over a fire so they can share the nuts. The cat burns its paw in the fire and the monkey runs off with the chestnuts. The monkey gets the prize without the risk of danger. In employment law this theory applies when an individual–who might be a worker or supervisor–convinces somebody else to do something unlawful.

The instigator evades blame for the bad act and the person who performed the bad act takes the fall. This liability theory exists to prevent employers from avoiding liability for bad act because the unlawful intent was disconnected from the unlawful act because they involve two people. Typically employment lawsuits allege one person performs the unlawful act with an unlawful intent.

Documentation.

Documentation policies are the bane of every employee and manager’s existence. However, it is important to show proper procedures were followed and rationales for decisions conform to the law. Employment lawsuits are won or lost based upon evidence and while testimony is a form of evidence, textual evidence often comes across more credible to juries.

Documentation also typically shows a timeline of events or interpretation of events along the way rather than relying upon memory and perhaps self-serving recreations after the fact with testimony. Following processes that require documentation also shows the employer attempted to act in conformity with lawful procedures and intent–assuming that is true of the processes.

Documentation also requires proper storage of those documents. If management should have documented events along the way but didn’t then that allows for inferences that the employer did not act in compliance with its procedures. Maybe there was something unlawful to hide. Additionally, once an employer is put on notice of a probable lawsuit a duty will arise to retain related evidence and failure to do so can create problems for the employer down the road in litigation.

Create and apply uniform policies.

Establish appropriate policies for both personnel and job responsibilities. Uniform policies ensure that employees receive fair treatment without discrimination. These policies need to be flexible enough to conform to the law when it requires flexibility and offer enough discretion to be appropriate without creating opportunities for discrimination or favoritism. When deviation from policies occurs, documentation will preserve a defense against claims of employment discrimination.

The more employers or supervisors make up employment policies along the way the more likely an individual’s unlawful intent may taint employment decisions. Smaller businesses are particularly vulnerable because they tend to have less procedural oversight than larger businesses; however, any size business can empower individual managers in harmful ways.

Take advantage of probationary periods.

Unless you employ on contract to the contrary, you can hire employees with up to ninety days of probation in which you may fire them for any (legally permissible) reason. If employees are not a good fit for the duties of the job they were hired or they fail to conform to basic policies, such as showing up to work on time, it is typically easier to leverage the probationary separation immediately than put in the investment to try to bring them up to speed only to then terminate them through a long corrective action process and possibly unemployment claims or employment suits afterwards. That does not mean every low performing new hire should be let go but those who are disrespectful to the workplace or clearly over their heads in the role may be best suited for probationary separation.

Realize when you need help.

Businesses spend a substantial amount of overhead on employing staff and should take the appropriate steps to make that investment as valuable as possible and as little of a liability to the business as possible. Employment lawyers should be part of the oversight of employment decisions and procedures to ensure an appropriate balance between limiting liability and efficient operation. If your business is not large enough to hire in-house employment counsel you should consider hiring outside counsel with employment law expertise to advise on these issues.

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