Going the Extra Step

April 10, 2016

Topics: Employment Litigation

In Other People’s Money, Danny DeVito’s character likened litigation to nuclear war—once it starts, nobody wins. There’s a valuable caution there—if an employee or ex-employee sues an employer, even if you win the case, you’ll still lose, incurring costs, spending time, and draining resources.

You can’t always avoid a lawsuit from a disgruntled employee—but you can make a lawsuit less likely by taking that extra action that will support the employer’s defenses.

If there’s an employee problem or dispute—do just a little bit more to put the company in a better position.  Give the employee another chance.  Uncover all the facts while giving the employee the benefit of the doubt and a chance to tell their side. Doing so will help the employer make an informed decision while demonstrating that the company took all reasonable steps to comply with the law and treat employees fairly.  When it comes to employment litigation, offensive actions against the employee (especially after a claim is made), will likely do no more than buy the employer a retaliation claim.  The law favors employees—but employers can take steps to tip the balance in their favor.

Some examples:

  • Suppose your company’s no call/no show policy states that unexplained, unexcused absences constitute grounds for termination. If an employee hasn’t shown up, don’t just fire him or her—reach out, and try to contact the employee. After all, you don’t want to fire someone who’s absent because they needed medical attention or suffered a personal tragedy.
  • Going the extra step can also mean going two or three steps more. In the example above, don’t stop with just calling the employee. If you can’t reach the employee, call the emergency contact number(s)—that’s what they’re there for.
  • Similarly, suppose an employee goes out on disability leave, but fails to provide the required doctor’s information. Don’t fire the employee right away for failing to comply with the policy requiring a doctor’s note—reach out again and ask the employee to provide the note. You don’t want to fire someone simply for forgetting some paperwork; and if you ultimately have to terminate, you want to show a jury that you first took every opportunity to avoid doing so.
  • Treat that poorly performing employee the same as one on leave.  You could simply terminate that person, but do you want the employee to be able to complain that he or she never knew there was a problem or had a chance to fix it? Instead of terminating the employee straight away—
  • Meet with the employee. Have a frank discussion of the issues and set out goals for improvement and remediation. Document the conversation.
  • If there’s no improvement, give the employee a written warning, setting out an improvement plan with a timeline and. If worst comes to worst and you still need to terminate the employee, you’ve created a paper trail to refute later claims of improper termination or employment discrimination.
  • What if an employee asks for an accommodation at work, either for a disability or a religious practice (things the company are legally required to consider), but the employee’s manager doesn’t want to grant it, or doesn’t think the company can? Don’t leave the matter at that. Management, HR, and the employee should meet about the requested accommodation. Let the employee explain what he or she wants, and management and HR can see if there’s anything that can or should be done. At the end of the day, there may be nothing the employer can reasonably do, but at least it will be able to show that it engaged in the required interactive process to attempt to find a solution.
  • Or take what may be among the stickiest situations an employer can face: an employee accused of theft or of harassing another employee. Don’t fire the accused, even if the accuser is credible—suspend the alleged wrong-doer while conducting a thorough, impartial investigation. If the result confirms the accusation, you can terminate the accused employee later; and if the investigation doesn’t support the accusation, you’ve avoided perpetuating an injustice that could potentially result in liability.

What I see too often is that companies fail to take that extra step.  It’s being penny wise, and pound foolish.  When the litigation hits, we wish the facts were different.  Often, they could have been if the company called counsel sooner, or even, at times, listened to their own HR manager.

When it comes to their employees, companies need to slow down, take a deep breathe, and consider if there is one more thing that could be done before taking a drastic leap that’s almost impossible to undo.