In an effort to break the cycle of bad judgment, I offer managers a gift of sorts-10 ways to stay out of legal trouble in the work place:
Talk to and with (not at) your Employees– Most employment disputes do not implicate legal issues- they are the product of poor communication. Explain your decisions to your employees with respect.
Be Fair and Consistent– Most employment law cases are decided by a jury. Jurors care most about fairness and consistency. Jurors care least about technical legal concepts. Jurors will not punish an employer who is fair and consistent.
Be Honest in Performance Evaluations– No one wins when you give an employee a better performance evaluation than he or she deserves. In fact, you make it more difficult to discipline or fire the employee after the good evaluation. Help yourself, your Company and the employee by being honest (and professional) in evaluations.
If Challenged, Don’t Practice Overkill– No one likes to be accused of illegal conduct. If challenged, however, don’t practice overkill. If you fired the employee for attendance problems, state this clearly. Don’t give 125 reasons for firing the employee. Jurors won’t believe that a long tenured employee suddenly became the worst employee assigned a social security number in the United States.
Take Every Reasonable Accommodation Request Seriously– Most people with disabilities in the work place can be accommodated with less difficulty and cost than you think. You can greatly reduce your Company’s potential legal liability by making a good faith effort to accommodate, even if you don’t provide the requested accommodation.
Don’t be Paternalistic– The law guarantees equal opportunity-not equal success. Give applicants and employees (especially people with disabilities) an equal chance to succeed and fail. Don’t assume that a person who uses a wheelchair can’t do a job. Give that person the same chance to succeed (and fail) that you give to people without disabilities.
Document, Document, Document Properly– Once litigation begins, the motive of everyone is suspect. Right or wrong, documents prepared at the time of key events are more credible than documents created after litigation begins. Put dates on documents. Write clearly and professionally. Assume that a third party (such as a judge or juror) will read what you have written. Make it good and don’t embarrass yourself.
Share these Documents with your Employees– Although a memo to your file about an incident is good, a memo to the employee is better. The latter is better because it puts the burden on the employee to respond in writing if he or she intends to dispute your version of the incident. More importantly, it gives the employee the chance to change his future behavior. If you document properly, you should be eager to share these documents with your employees. This documentation can stop litigation from getting started.
Hire a Lawyer who Listens to You– Listening skills are not taught in law school. Listening, however, is one of the most important traits that an effective lawyer must have to serve you properly. Demand that your lawyer listen to you.
Listen to your Lawyer– Experienced lawyers look at employment disputes more objectively (and less emotionally) than you can. He or she can help you understand the strengths and weakness of your position. Try not to take the allegations personally. Treat the matter like you treat other business decisions. Listen to your lawyer.