Six MORE Employer Mistakes Plaintiffs’ Attorneys Love to See
In “Four Employer Mistakes That Plaintiffs’ Attorneys Love to See,” we outlined errors that management often makes that lead to employee lawsuits. Alas, those are not the only missteps we see—here are six additional common pitfalls that make plaintiff’s attorneys anticipate payoffs.
- Failing to contact counsel in a timely manner. Many employers attempt to resolve issues internally and contact counsel only if they are not successful. In many instances, and particularly where the issue is very minor in nature, this strategy can be successful. However, in situations where employers are confronted with more complex matters, including claims of discrimination or harassment, attempting to remedy those situations without the assistance of counsel creates numerous risks.
- Failing to understand why employees file claims. Many employment claims are preventable. In my experience, most employment claims are filed because of the perception that an employee has been mistreated and/or disrespected. Plaintiffs' attorneys find a label or legal theory to attach to this level of unhappiness, but at the core of the claim is an abiding sense that individuals have been mistreated. Often, this is a function of employers (i) failing to follow their own policies and procedures; (ii) failing to properly define and communicate expectations at the outset of employment; (iii) failing to spend the necessary time to determine why certain employees have been successful in their organizations and others have not; and (iv) failing to treat employees consistently.
- Failing to terminate employees respectfully. Perhaps nothing is as upsetting to employees as being terminated (i) under circumstances where they had no idea that the termination would be forthcoming and (ii) in a manner that is considered disrespectful. It is essential to properly document personnel issues and adequately communicate performance problems in a respectful fashion early on. As for the second issue, terminating employees in a public manner, or “taking the bait” and engaging in destructive discussions with employees, is a prescription for a lawsuit. Employees who believe that they have been publicly humiliated are more likely to file claims.
- Failing to pay employees all monies that are owed. Generally, employers are required to pay employees all sums for which they are owed through the last day of employment regardless of the reason for termination. Too many employers operate under the mistaken belief that they can withhold a final paycheck until the employee returns all information, documents, uniforms, etc., belonging to the employer. Similarly, employers need to be careful that they are properly compensating employees for commissions and bonuses that have been earned and not conditioning payment upon the employee being employed on a date certain -- if the employee has otherwise satisfied all of the obligations associated with the commission/bonus.
- Failing to take employee complaints seriously. The timely investigation of claims of harassment and discrimination is critical in order to preserve important employer defenses to such claims if they are actually filed. Employees who believe that their complaints are consistently ignored will have little hesitation in contacting an attorney to evaluate their case, make a demand for payment, and/or file a claim.
- Failing to manage leave of absences properly. Perhaps the most difficult issue an employer faces is managing situations where employees may be covered by the Family and Medical Leave Act (or some analogous state statute), the Americans with Disabilities Act, and/or the workers’ compensation laws. Employers that fail to designate leave as FMLA may inadvertently extend the job protection provided by that statute to employees eligible for protection. Furthermore, employers that mistakenly believe that once employees have completed their FMLA leave, they no longer have any legal protections may very well run afoul of the ADA, which, among other things, provides that one form of accommodation can be an extended leave of absence.
Marc Engel is an employment attorney and litigator at Lerch, Early & Brewer who regularly counsels clients on how to comply with state and federal employment statutes and wage hour laws. For more information on successful strategies for managing employees and preventing employment claims, contact Marc at (301) 657-0184 or firstname.lastname@example.org. Mike Neary, who also is an employment attorney and litigator at Lerch Early, assisted with this article.