What's the Best Defense Against Employee Lawsuits?

Clients frequently seek advice concerning tips for avoiding and/or defending against employment discrimination claims. Read this blog entry for some tips you should consider.

Document performance deficiencies. We often see in our practice that managers will give a verbal warning to an employee but will never write it down or put a notation in the employee's personnel file. When it comes to defending employment claims, juries are much more likely to believe an employer when prior instances of poor performance have been documented.

Just the facts. Closely related to the above item is the issue of poor documentation. Often supervisors struggle to report just the facts when they do document performance concerns. Train your managers to remove emotion from the documentation process. Emotionally charged supervisor notes can paint a worse picture than no documentation at all.

Don't inflate employee evaluations. Many supervisors do not want to have difficult conversations with their employees about performance. Accordingly, they avoid these conversations and then give employees an artificially high performance evaluation. However, this presents major difficulties when an employer later takes the position that an employee's performance was deficient.

Conduct prompt, thorough investigations. If an employee brings a complaint to the Company's attention, we recommend that a prompt, thorough investigation be conducted. This should include interviewing all witnesses. While there is no requirement that you share the nature of any disciplinary action that has been taken with the employee, you should inform the complaint that his/her concerns have been addressed.

Is it fair? Remember that juries for the most part make their decisions on the basis of whether they feel that an employee has been treated fairly and whether the employee has had the opportunity to correct past mistakes. So, if it doesn't pass the fairness test, go back to the drawing board before proceeding to termination.