Top 10: The basic rules every HR pro must follow
While lawsuits may be practically inevitable in today’s litigious society, losing them is not. Use the following 10 rules to prevent the most common employment-related lawsuits—or at least increase your chances of winning them.
1. Conduct thorough background checks on applicants
You can learn a lot by reviewing applicant histories. Have they recently been convicted of crimes involving fraud, dishonesty or violence? While such evidence is not necessarily disqualifying in every case, it can be instrumental in determining whether an applicant is a good fit for your company.
2. Provide accurate and adequate references for ex-employees
Generally, provide neutral references for former employees: confirmation of dates of employment and final wages. Like all rules, this one has exceptions. For example, an employee fired for violently attacking a co-worker may present a future risk. Withholding that information from another employer can expose your organization to liability. Ideally, if you intend to provide a more detailed response to a reference request, get a release from the former employee in advance.
3. Consistently follow progressive discipline policies
The most prevalent employment law claim is that an employer treated someone differently (based on sex, race, age or other distinguishing characteristic) than somebody else for the same behavior. The key to minimizing and defending those claims is consistent application of progressive discipline within the same department—or better yet, throughout the entire company.
4. Keep personnel policies and manuals up-to-date
It may change slowly, but the law does change. Don’t base your defense on a policy that was last updated in 1995. Review your policies and update your employment manuals at least every three years. If the law changes in a way that affects a particular policy, quickly issue a supplement to the employee handbook.
5. Coordinate decisions and responses to the government
A single employee can raise racial discrimination with the EEOC, a violation of the FMLA with the U.S. Department of Labor and a claim of unsafe working conditions with OSHA. Designate the HR department to coordinate and respond to all three agencies. Allowing different departments to respond separately to what may be a single factual issue can lead to fatal inconsistencies that will be impossible to explain should the matter end up in front of a jury.
6. Train supervisors on the policies and the law
Without even knowing it, front-line supervisors can find themselves in dangerous positions: “speaking for the company” on personnel issues. If HR doesn’t provide basic training on those issues, the result is too often an inadvertent and potentially expensive employment law violation—for which the company itself will be liable. Provide basic HR training to supervisors upon hire and at least once a year thereafter.
7. Avoid making promises that turn into contracts
A throwaway comment, like “as far as we’re concerned, you’ll have this job as long as you want it,” can create an arguable claim by the employee for long-term employment that takes him or her outside the “at-will” category. Make sure your supervisors and managers know not to make statements that offer terms and conditions of employment outside what an employee’s job description normally allows.
8. Take complaints of harassment seriously
Your strongest defense against losing a harassment case in court is a proper policy that forbids harassment of any type. Unfortunately, simply having a detailed policy is not enough; for it to truly be effective as a defense, you must follow it and enforce it fairly and consistently. If you receive a harassment complaint, move quickly to investigate it and impose appropriate—and consistent—discipline.
9. Comply with record-keeping requirements
A company can successfully defend a frivolous claim yet still get hit with thousands of dollars in fines by an investigating agency just for failing to maintain records as required by law. Any agency can request copies of legally mandated files and policies during any investigation, regardless of the reason for starting the investigation. Know which documents you must keep, and make sure you can easily retrieve them (whether in paper or electronic form).
10. Anticipate possible litigation and act appropriately
Along with training your supervisors on the basics of the law, train them also to recognize the signs of a potential lawsuit. Repeated requests to view disciplinary or personnel files, strongly worded objections to annual evaluations and “legalistic” sounding emails or memos sent to a supervisor or HR are all signs that an employee is contemplating legal action. In those situations, HR should get ahead of the problem by seeking legal advice and taking quick and coordinated steps to prepare for a claim. A manager’s early tip-off can greatly speed the process.