Re: Employee Lawsuit Risks
Lawsuits by employees against their employers have grown tremendously in the past decade. Sometimes those lawsuits have merit, sometimes they don’t. But either way, those lawsuits cost time and money to fight—money that is better spent on product development, training and raises.
Even worse, some laws—including federal overtime law and the FMLA—allow employees to sue their supervisors directly, meaning a manager’s personal bank account could be at stake.
Most lawsuits are not triggered by great injustices. Instead, simple management mistakes and perceived slights start the snowball of discontent rolling downhill toward the courtroom.
Here are 12 of the biggest manager mistakes that harm an organization’s credibility in court. Use these points as a checklist to shore up your personal employment law defense:
1. Sloppy documentation
Most discrimination cases aren’t won with “smoking gun” evidence. They’re proved circumstantially, often through documents or statements made by managers. Documents, particularly email, can help the employee show discriminatory intent.
The lesson: Always speak and write as if your comments will be held up to a jury someday.
2. Not knowing policies, procedures
Courts expect supervisors to know their organization’s policies and procedures. If a manager admits ignorance, legal experts say juries typically view that as purposeful, not forgetfulness.
That’s why it’s vital to make sure you understand company policies. Don’t make decisions based on a vague memory of a policy. Double-check it or check with HR before taking action.
3. Inflated appraisals
Performance reviews are one of the most important forms of documentation, yet managers sometimes inflate the ratings for various reasons. If a manager later tries to cite “poor performance” for that same person’s termination or demotion, those overly positive appraisals create a heap of credibility concerns.
Be direct, honest and consistent.
4. Shrugging off complaints
Turning a blind eye to any employee’s complaints of unfairness or perceived illegal actions is a guaranteed credibility buster. Comments like “I’m not a babysitter” or “Boys will be boys” will hurt employee morale and jeopardize your standing in court.
5. Interview errors
It may be easy to answer the question: “Why did you hire that person?” But managers often run into trouble when they have to answer: “Why did you reject certain other candidates?”
That’s because rejection decisions typically aren’t well-documented and the decisionmaker may not recall the reasons later.
During interviews, avoid any question that doesn’t focus on this central issue: How well would this person perform the job he or she has applied for? Never ask about age, race, marital status, children, day care plans, religion, health status or political affiliation.
6. Changing your story
If an organization changes its reasoning for making an adverse employment decision (firing, discipline, demotion, etc.) midstream, its credibility is shot.
Be straight with employees from the start about reasons for discipline. Don’t sugarcoat your comments.
7. ‘Papering’ an employee’s file
Most managers hear the mantra, “Document, document, document.” But it’s possible to overdocument, especially when it occurs right before a firing. Courts will be able to see through a rush of disciplinary actions cited in the days before termination.
Be consistent in documenting negative and positive performance and employee behavior. It’s best to keep a “performance log” for each employee, regularly making notes in each file.
8. Being rude, mean-spirited
An organization can have the best case in the world, but if the key supervisor comes across as rude, insensitive and mean, the attorney’s job of selling the case to the jury will be much harder.
Use the golden rule in handling staff.
9. Careless statements to feds
When responding to charges filed with the EEOC or state agencies, employers often have to submit position statements. Managers may be called upon to help provide some of that information. You can bet the employee’s attorney will review these statements, particularly affidavits, and introduce them at trial, especially if your story has changed. Keep your story consistent.
10. Lack of legal knowledge
Juries will expect—and the plaintiff’s lawyer will encourage them to expect—that employers stay abreast of developments in employment law. Refresh yourself regularly on your organization’s policies, read communications sent from HR and, when in doubt, ask questions.
11. Dictating accommodations
Under federal law, employers must make “reasonable” workplace changes to accommodate an employee’s disability. How do you choose those accommodations? The law says it must be a give-and-take process to reach a solution. Managers too often try to dictate the solution.
12. Firing employees too fast
Managers who fire without first trying to improve the worker’s performance will appear insensitive and potentially discriminatory in court. Conversely, managers who try to improve things before resorting to firing will stand a better chance of avoiding a lawsuit.
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Conducting workplace investigations is one of the most challenging and most important duties that HR professionals must take on. How you respond to complaints about harassment or other misconduct can have huge legal and practical implications for your organization.
Here are the 10 most common workplace investigation mistakes:
1. Ignoring complaints
Failing to take action on a complaint is one of the biggest mistakes employers can make. Choosing not to conduct an investigation after learning of allegedly inappropriate conduct may result in the company being legally responsible for harm caused to any employee, client or others due to the inappropriate conduct. Investigate regardless of how frivolous or unfounded the complaint appears, or who complained.
Note: Just because a complaint is anonymous does not excuse failure to investigate.
2. Not having a plan
Create a preliminary plan for the investigation so you understand the purpose of the investigation. Think about these five W’s:
3. Taking too long
Delaying the start of an investigation may lead to employer liability. Particularly in harassment and discrimination cases, deciding to wait to begin an investigation may be viewed as subjecting the employee to additional unlawful behavior.
Your timing goal: to strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays.
4. Not training investigators
Poorly trained investigators can’t promptly respond to complaints, making the inquiry ineffective. Train several employees to conduct an impartial, professional and credible investigation.
Another option is to hire a trusted HR colleague or use in-house counsel or an outside attorney to conduct the investigation. No matter who you choose, making sure that the investigator is trained and able to begin the investigation promptly is key.
5. Accepting half-measures
Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.
6. Conducting unlawful searches
Searching an employee’s personal belongings or monitoring certain communications without consent can violate several federal and state laws. Avoid liability by informing employees of surveillance policies. Obtain their consent to monitor and access information on any devices employees use at work.
7. Interviewing too aggressively
Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions. More practically, you risk dissuading employees from cooperating in the investigation, thus failing to understand what happened.
Advice: Conduct interviews in appropriate locations, outline questions in advance and use open-ended questions when possible, to get the entire story.
8. Promising confidentiality
Never promise an employee that his or her complaint will remain confidential. There will always be certain information that must be disclosed in order for a thorough investigation to be completed. You run the risk of a possible violation of federal labor law if you demand absolute confidentiality from the witnesses.
9. Failing to create a report
Document investigation processes and findings to support the company’s action regarding the allegations. Failing to document evidence, results of interviews and other relevant findings is just as bad as failing to conduct an investigation.
Prepare a report for every investigation. Include a summary of the matter; the identity of all parties and witnesses; a description of the documents, findings and credibility determinations; and recommended action.
10. Pulling punches at the end
Failing to reach a conclusion and take the necessary steps to address misconduct will ultimately expose the employer to legal liability. Once the report has been completed, a determination should be made regarding whether misconduct occurred and what appropriate actions should be taken.
Make sure the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.
David M. Ferrara is a member of Bond Schoeneck & King and Alyssa Campbell is an associate.
Want to know why retaliation claims turn out so well, so often, for angry employees? Look no further than basic human psychology, says attorney Deborah S. Adams of Frost Brown Todd LLC: “Juries ‘get’ retaliation claims.” Most of us have never actually felt the full emotional brunt of an overt act of racial, sexual or age discrimination at work. But we can all quickly identify with the feeling of being persecuted for something we’ve said or done. That’s almost universal.
“The very nature of the word ‘retaliation’ suggests punishment,” Adams explains. And the feeling of being punished as an adult, suffering payback, is a guaranteed trigger for anger—even the secondhand anger of empathetic jurors.
No wonder plantiffs’ lawyers love these cases.
Adams offers these tips on how an organization can thwart becoming another dreaded statistic:
1. Make sure you have standalone retaliation policies set down on paper. Your temptation when crafting an employee handbook will be to just glom them onto your EEOC complaint procedure or your open-door policy. That’s not enough—use that paragraph break command in Word to separate and emphasize your strong stand in favor of your employees’ right to engage in protected activity. In your policy, make it clear to them that if they have a complaint, they should feel free to run, not walk, directly to HR.
2. Put all termination recommendations to the sniff test. If someone comes to you in a firing or disciplining mood, make them prove that there’s no retaliation going on here. Your first thought should be: How will this look to the outside world—to the average person on the street who probably feels like their own company is sometimes a bit adversarial to them? That average person is who winds up on a jury.
3. Instruct managers on how to suffocate their emotions. Retaliation is often a personal act. When we’re accused of wrongdoing, we tend to want to strike back quickly, and that’s when a manager might launch an adverse action and justify it by thinking, “Hey, you play with fire, you get burned.” Get everyone to take the Red Button Pledge: Make them envision all vindictive thoughts printed on one, a trap just waiting for the overly emotional to actually press it.
4. See email as a beast with fangs. “I find more documentary evidence of retaliation in people’s emails and texts than almost anywhere else,” Adams says. Sentences like “I can’t believe he’s still working here when he’s suing us” or “It would be a shame if she really started to hate her job” are completely obvious codes that will be quickly exposed.
5. Beware keywords like malcontent, pot-stirrer, ungrateful, disruptive and bad attitude. Let’s face it: Despite your best efforts, they’re going to be spoken behind closed doors. Just make sure that those who use them find that their next stop is your office, where they’ll be educated firmly in the stakes of this costly game.
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As overtime lawsuits continue to surge, employers often try to defend themselves by pointing to their policy that says employees should have received management approval before working OT.
Bad news: Judges are dealing harshly with employers that try to rely solely on the “no-OT-without-approval” defense.
That’s because the Fair Labor Standards Act requires management—not employees—to make sure employees don’t work unpaid overtime hours.
According to the U.S. Department of Labor, “time spent doing work not requested by the employer, but still allowed, is generally hours worked.” And if nonexempt employees work—whether it’s authorized or not—you must pay them for their time.
Here’s how to stop abuse of unauthorized overtime:
1. Ensure all employees know they must obtain supervisor approval to work overtime. Don’t bury the rule deep within your handbook.
2. Develop checks to prevent off-the-clock work. Example: Insist all hourly employees clock in and out.
3. Adopt tracking measures, such as electronic entry cards, to back up reports of hours worked.
4. Institute progressive discipline for overtime violators. While you must pay for all hours worked (authorized or not), you can discipline rule-breakers.
More advice: While a no-OT-without-approval policy won’t insulate you from lawsuits, you should still be sure to include one in your employee handbook.
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Conducting workplace investigations is one of the most challenging and most important duties that HR professionals must take on. How you respond to complaints about harassment or other misconduct can have huge legal and practical implications for your organization.
Here are the 10 most common workplace investigation mistakes:
1. Ignoring complaints
Failing to take action on a complaint is one of the biggest mistakes employers can make. Choosing not to conduct an investigation after learning of allegedly inappropriate conduct may result in the company being legally responsible for harm caused to any employee, client or others due to the inappropriate conduct. Investigate regardless of how frivolous or unfounded the complaint appears, or who complained.
Note: Just because a complaint is anonymous does not excuse failure to investigate.
2. Not having a plan
Create a preliminary plan for the investigation so you understand the purpose of the investigation. Think about these five W’s:
3. Taking too long
Delaying the start of an investigation may lead to employer liability. Particularly in harassment and discrimination cases, deciding to wait to begin an investigation may be viewed as subjecting the employee to additional unlawful behavior.
Your timing goal: to strike a balance between adequately preparing for the investigation and avoiding unreasonably long delays.
4. Not training investigators
Poorly trained investigators can’t promptly respond to complaints, making the inquiry ineffective. Train several employees to conduct an impartial, professional and credible investigation.
Another option is to hire a trusted HR colleague or use in-house counsel or an outside attorney to conduct the investigation. No matter who you choose, making sure that the investigator is trained and able to begin the investigation promptly is key.
5. Accepting half-measures
Conducting a sloppy investigation by failing to interview necessary witnesses, failing to review relevant documents and ignoring potential issues that come up during the investigation can create just as much legal exposure as not doing an investigation at all.
6. Conducting unlawful searches
Searching an employee’s personal belongings or monitoring certain communications without consent can violate several federal and state laws. Avoid liability by informing employees of surveillance policies. Obtain their consent to monitor and access information on any devices employees use at work.
7. Interviewing too aggressively
Aggressive tactics may result in legal claims such as false imprisonment and coerced confessions. More practically, you risk dissuading employees from cooperating in the investigation, thus failing to understand what happened.
Advice: Conduct interviews in appropriate locations, outline questions in advance and use open-ended questions when possible, to get the entire story.
8. Promising confidentiality
Never promise an employee that his or her complaint will remain confidential. There will always be certain information that must be disclosed in order for a thorough investigation to be completed. You run the risk of a possible violation of federal labor law if you demand absolute confidentiality from the witnesses.
9. Failing to create a report
Document investigation processes and findings to support the company’s action regarding the allegations. Failing to document evidence, results of interviews and other relevant findings is just as bad as failing to conduct an investigation.
Prepare a report for every investigation. Include a summary of the matter; the identity of all parties and witnesses; a description of the documents, findings and credibility determinations; and recommended action.
10. Pulling punches at the end
Failing to reach a conclusion and take the necessary steps to address misconduct will ultimately expose the employer to legal liability. Once the report has been completed, a determination should be made regarding whether misconduct occurred and what appropriate actions should be taken.
Make sure the complainant does not suffer any adverse employment actions resulting from the determination unless you can prove that the allegations were made in bad faith.
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The legal and regulatory landscape surrounding workplace harassment is shifting rapidly, leaving many HR professionals wondering how to stay compliant while maintaining a fair and inclusive work environment. Karen M. Morinelli and Lara J. Peppard, attorneys at Ogletree Deakins, warn that with the recent changes to EEOC leadership, evolving interpretations of federal laws and new executive orders, HR teams must be prepared to endure heightened scrutiny and conflicting guidance.
The evolving legal framework
Recent updates to federal enforcement policies have created challenges and opportunities for HR professionals. The EEOC’s 2024 Enforcement Guidance on Harassment in the Workplace, passed by a narrow vote, expands protections against harassment, including provisions related to gender identity. However, the new acting chair, Andrea R. Lucas, has openly opposed these interpretations and initiated reviews to remove what she describes as “gender ideology” from EEOC materials.
Additionally, President Trump’s Executive Order 14168 directs federal agencies to define sex as immutable and binary, which could impact workplace policies related to gender identity and inclusion. Meanwhile, a federal court ruling has temporarily blocked efforts to dismantle diversity, equity and inclusion (DEI) programs, leaving employers in limbo over how to proceed.
For HR, the key takeaway is clear: Compliance with existing anti-discrimination laws remains essential, but policies may need to be revisited frequently as the legal landscape shifts.
Defining and addressing workplace harassment
While laws and interpretations may be changing, the core definition of workplace harassment remains consistent. Unwelcome conduct based on a protected characteristic—such as race, gender, sexual orientation, disability or age—crosses into unlawful harassment when it becomes severe or pervasive enough to create a hostile work environment or impact employment conditions.
Common examples include:
Virtual environments present new challenges, as conduct that may have been overlooked in traditional office settings—such as inappropriate comments in chat platforms or video calls—can now be documented and scrutinized. HR should ensure that remote work policies address online harassment with the same rigor as in-person interactions.
Next steps for HR teams
HR professionals must be proactive in adapting to these changes by:
Taking on workplace harassment policies in today’s uncertain climate requires HR professionals to remain vigilant, informed and adaptable. By taking decisive action now, organizations can protect employees, maintain compliance and uphold a fair workplace culture—no matter how the legal landscape shifts.
