Top 10 Mistakes Made by Employers

November 5, 2010

Frequently, a disgruntled employee will talk to a plaintiff lawyer about perceived harassment or discrimination in the workplace. The plaintiff lawyer may find that the complaint that the employee comes calling about is much ado about nothing. However, crafty plaintiff lawyers are always on the lookout for different ways to trap an unwary employer and, by questioning the employee in depth, they may uncover violations that the employee had no idea was occurring.

Here are some of the top mistakes made by employers that could lead to costly awards to employees or ex-employees:

1. Poor Policy Management

Employers without employment policies in place (or out-of-date policies) and managers who don’t know the company’s policies or apply them inconsistently are two reasons employers are found to illegally discriminate against employees.

Fixing the Problem: Create, or update, an employee handbook. Then, educate managers and supervisors about the policies and make certain that the policies are applied consistently and fairly.

2. Lack of Proper Training, Resources and Tools for Managers

It is difficult enough for managers to handle their employees, but if they are expected to do so without proper training and resources, it is almost an impossible task.

Fixing the Problem: Provide managers and supervisors with periodic training on policies and procedures as well as a basic understanding of the principles of discrimination, harassment and retaliation.

3. Lack of Clarity

Problems can arise if an employee’s performance expectations are misunderstood, or the employer makes promises that it does not keep.

Fixing the Problem: Clear communication is critical. Be clear in general communications with all employees, as well as with communications to individual employees. Finally, make only promises you intend to keep.

4. Poor Recordkeeping

If an employer fails to document performance or disciplinary issues, in the eyes of a jury the problems never existed.

Fixing the Problem: Keep proper factual documents on performance reviews, attendance, time records/tardiness, disciplinary issues and requests for accommodation. For key documents, make certain to document that the employee received a copy.

5. Lack of Objectivity and Patience

All employers have their favorite employees. But failing to be objective with those employees, while being impatient with other employees, may be perceived as illegal discrimination.

Fixing the Problem: Don’t be “trigger happy” when it comes to terminating employees. Treat everyone the same – both good performers and bad. Finally, take a deep breath and see the big picture of the climate of the workplace.

6. Acting In a Way That Seems Punitive

The goal of progressive discipline is to rehabilitate a poor performing employee. Discipline, or treatment that seems like punishment, may push an otherwise non-litigious employee into the hands of a lawyer.

Fixing the Problem: Don’t threaten employees lightly or act in a way that seems punishing. When counseling an employee, do not make personal or unprofessional comments. Finally, do not submit performance information on employees on uncontested claims for unemployment.

7. Failure to Guard Against Retaliation Claims

Terminating an employee shortly after the employee has made a complaint of harassment or retaliation is frequently a recipe for disaster. Such a step should only be taken if it can be backed up by documentation or if it involves verifiable misconduct on the employee’s part.

Fixing the Problem: Be very careful with impacting the employment status of any employee who has taken “protected activity,” that is, complaining of harassment or discrimination, or who has filed a charge of discrimination or lawsuit against the company.

8. Lack of Thoroughness and Follow-Through

If the employer provides a mechanism for employees to complain, make sure to take all complaints seriously and follow through with a proper investigation and resolution of the complaint.

Fixing the Problem: Investigate complaints thoroughly and promptly. (The investigation should begin no later than 24 hours after the complaint has been made.) Also, take decisive action in response to the complaint and follow up with the complaining employee once the investigation is complete.

9. Overloaded Managers

Many of the mistakes above are not the result of intentional neglect or inattention, but rather managers and supervisors with too many irons in the fire.

Fixing the Problem: Keep a pulse on your managers’ and supervisors’ workloads and make sure your staffing levels can handle your volume of work.

10. Improper Handling of Termination

Very often, the way you handle a termination dictates whether an employee will leave quietly, or run to the nearest lawyer.

Fixing the Problem: Rather than try to spare the employees feelings, be honest with the reason for termination. The termination meeting should be brief and to the point and do not argue with the employee – you don’t need to feel victorious after the termination meeting. Finally, if you decide to offer the employee severance, only do so in exchange for a written release.

Little mistakes can add up and land you in court, so it is best to avoid them altogether with a strategy to follow a proper HR plan.