Employers that fail to adopt and follow basic good management practices will substantially increase their risk of litigation and liability.
By Maxine Neuhauser
It is not illegality that fuels employee lawsuits, but rather employee anger arising from perceived unfair treatment.
Placing a legal label, such as discrimination or retaliation, on the seeming unfairness occurs afterward.
Supervisors, managers, executives and even human resources staff often engage in behaviors that, unwittingly, lead employees to feel misled, lied to or otherwise unfairly treated. In doing so, they increase the likelihood of litigation. Ten common mistakes increase the likelihood of employee lawsuits and financial exposure.
1. Forget About Training
Workplaces today are busier than ever. Devoting time to management training takes precious hours away from productive, moneymaking endeavors. A company, however, is its managers. What the managers say and do, the company says and does. Correct behavior prevents lawsuits. Missteps lead to liability. Managers who are not conversant in company policies, and who do not know the basics of setting goals, preparing performance appraisals and proper documentation become the catalyst for lawsuits.
Supervisors need training about how to handle difficult situations--what to say, whom to turn to for assistance and what not to do. Failing to provide management training is shortsighted, and with the rise of potential individual liability, unfair to a company’s supervisors.
2. Disregard Company Policies
Policies establish a company’s "rules for the road" for both employees and managers. They set company standards and inform employees of management’s expectations. Well-drafted policies tied to an enterprise’s business needs provide guidance to managers and employees. If followed, policies help ensure consistent treatment of employees.
Disregarding policies heightens the potential for inconsistent treatment. It thus increases the risk that employees subjected to harsher action than their co-workers will interpret the discipline they received as unfair or discriminatory. Ignoring policies also sends the message that the employer believes they are unimportant, and gives license to employees to disregard them as well. An employer that fails to follow its policies not only loses the benefit of having them, but it also sets itself up to be portrayed as mismanaged, uncaring and willfully noncompliant with the law.
3. Shoot From the Hip
Firing without notice may occasionally be appropriate, but rarely. Acting without fair warning--or rashly or arbitrarily--invites resentment. Employees who feel ambushed may be led to seek their revenge through litigation.
Companies can reduce this risk by making employees aware of the probable consequences of misconduct through well-publicized and consistently enforced policies and progressive discipline. Before disciplining an employee, a company should be able to state:
In addition, employers are usually well advised to give an employee the opportunity to give his or her side of the story before administering discipline. A meeting with the employee often provides a valuable safety valve for both employee and employer.
Often, employees admit the misconduct (or some portion of it). Though unhappy with the discipline levied, employees often will be satisfied with the opportunity to have been heard. Managers need not agree with the employee, and should not argue or apologize. Meeting and listening alone can make employees feel that they have been treated fairly--because, in fact, they have been.
4. Motivate Poor Performers With Raises and Bonuses
The season for annual raises and bonuses brings with it the temptation to give underperforming employees some amount of increase or bonus. Withholding raises and bonuses is a tough decision. We all like to be liked. Withholding raises and bonuses seems contrary to a supervisor’s goal of maintaining morale and staff loyalty.
Giving undeserved increases, however, does not spur poor performers to improve. Rather, it reinforces poor performance by telling employees that their performance merited an increase or bonus.
Terminating someone on the grounds of poor performance, after years of raises and bonuses (even small ones), creates concrete evidence of inconsistency between what the employer says now versus what it did then. It raises suspicion of ulterior motives for the adverse employment action and provides strong motivation for the employee to consult counsel.
5. Criticize the Person
Few jobs lend themselves to purely objective evaluation. Subjective criteria nearly always come into play. The challenge lies in relating performance criticism (and praise) to the job and not the person. Reviews that characterize the employee, rather than evaluating his or her performance, may become evidence of bias and discriminatory stereotyping.
Praise an employee for becoming the region’s leading sales person in just two months, but not for being "young and enthusiastic."
Similarly, criticize an employee for repeatedly failing to meet deadlines, not for being "lazy." Employees may need to "update their skill sets"; they do not, however, constitute "deadwood." To avoid such pitfalls, companies should encourage and assist managers in establishing measurable goals and creating business-related standards against which to evaluate employee performance.
6. Ignore Problems
Employers ask for trouble when they ignore problems and complaints. Failing to address performance issues has the practical effect of lowering performance standards. It leads employees to believe that they are performing at satisfactory levels because management has not told them otherwise.
Management may be dissatisfied with an employee’s level of performance, and may truly believe that the employee ought to know he or she is missing the mark. Unless supervisors confront employees about performance deficiencies, however, and expressly state what employees need to do to meet expectations, change is unlikely. When after years of accepting poor performance a manger finally acts, perhaps by discharging the poor performer or perhaps by passing the employee over for promotion, the employee may react with surprise, hostility and claims of discrimination.
7. Put Nothing in Writing
Without a written record documenting employee performance issues and management’s response, employers increase the risks of "he said, she said" situations when taking adverse employment actions. Employees who have not been given (and required to sign) counseling memos or performance evaluations frequently claim that the counseling, the warning or the evaluation was never received. Verbal warnings carry less weight than written warnings with employees, their lawyers and juries.
Employees who have been repeatedly spoken to, but never written up, are likely to discount or even disregard the import of the counseling. Employers who do not document employment issues leave themselves with little concrete evidence to prove a history of poor performance as the reason for discharge, instead of, for example, retaliation for taking medical leave.
8. Understand That Boys Will Be Boys
A hostile work environment, whether because of sexual harassment or harassment based on age, disability or race, may arise from either severe or pervasive conduct. Jokes, e-mails and passing comments when considered individually may be of little consequence. Accumulated and viewed as a whole, however, they can be used to show pervasive misbehavior that has converted a professional workplace into a frat house. That a harassing employee may not intend to harass his co-worker does not constitute a defense nor does it create a shield from being sued.
Employers who know of employee misconduct, such as use of the company’s e-mail system to send sexually explicit jokes or photographs, and who fail to take action to stop the conduct, substantially increase their risk of litigation and liability for damages.
When management’s fails to tell the truth, employee disgruntlement inevitably follows, and with it a fast track to the courthouse – and potential liability.
Employers do not protect themselves by telling an older employee that he is being discharged because of job elimination when the true reason is poor performance. As soon as someone (younger) is hired to replace the discharged employee, the company’s lie, even if intended to protect the employee from hurt feelings, will be seen as a pretext to hide discrimination.
Repeatedly, experience shows that a cover-up carries worse consequences than the initial misdeed. Shredding documents, deleting files or throwing away drafts upon learning of an impending lawsuit can all add up to trouble. When confronted with a bad situation, it remains true that honesty is the best policy.