Guess which of your employees are among the most likely to file a discrimination complaint, request ADA accommodations or ask for FMLA leave. Those who know they’re in trouble at work. They think that by doing so, they’ll make you think twice before discharging them. If that doesn’t keep you from firing them, guess what happens next.
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It’s one of the HR profession’s hard truths: You never know which applicant may sue you if he or she isn’t hired. That means you must be ready to defend every hiring decision. The best way is to have a clear routine that everyone involved in the hiring process must use.
To sue for employment discrimination, employees have to show some sort of adverse action—e.g., discharge, demotion, a pay cut or a transfer to a less desirable or less prestigious position. Merely being criticized or having a reprimand placed in a personnel folder isn’t enough to support a lawsuit.
If you don’t have a chance to personally observe an employee’s behavior, don’t rely solely on a supervisor’s termination recommendation. Instead, conduct an independent investigation to verify the supervisor’s claim. Otherwise, any employment decision based on that recommendation can be tainted by the supervisor’s hidden bias.
Employers have an obligation to prevent sexual harassment and to end it when it does occur. But many times, what a thin-skinned employee considers harassment isn’t actually serious enough to rise to that level. When that happens, smart employers exercise patience. They understand the very real danger of winning a sexual harassment case but losing the retaliation case that follows.
Score one for common sense: People who want a job they see posted have to apply before they can sue for not getting it. A phone call to HR that was never returned can’t be grounds for a failure-to-hire lawsuit.
Courts don’t like it when employees are treated unfairly. On the other hand, judges don’t want to serve as HR courts, either. That’s why they generally defer to management decisions that seem fair and honest. Judges prefer it when employers investigate allegations of employee wrongdoing before they fire someone—but they don’t require that the investigation be perfect.
Often, you have to fire employees for reasons that seem painfully obvious. Don’t let that stop you from carefully documenting the decision. The fact is, you never know which employee will sue or what she will claim.