“An apple a day keeps the doctor lawyer away.” Here are five easy and inexpensive things that employers can do to minimize their risk of being sued and maximize their chances of victory if they do get sued. None of these involve major expense, or even the use of lawyers.
1. Err on the side of treating your workers as (a) non-exempt and (b) “employees.” Let this be your default position. Don’t forget that salaried workers, such as clerical employees, may be non-exempt, too. And, as we discussed recently, it’s legally risky to tread too close to the “independent contractor/employee” line.
A good general rule is that if you do want to classify someone in a gray area as FLSA-exempt or as an independent contractor, consult with an employment lawyer first. Otherwise, assume that the worker is a non-exempt employee. (Of course, you’ll also want to make sure that your non-exempt employees post their time accurately and aren’t being encouraged to work off the clock.)
2. Avoid creating the impression that you play favorites. Favoritism isn’t illegal, but it often leads to claims of discrimination, which is illegal.
3. Keep your peeps in the loop. You may think your employees don’t care about what’s happening with your company and your industry, and some probably don’t, but tell them anyway. When people don’t have good (or any) information, their imaginations run wild, they listen to gossip, they get paranoid, and next thing you know you’re being sued. Let your employees know the good and the bad. Give them an idea of what they might expect if “the bad” occurs. You obviously won’t be able to disclose everything, but appropriate sharing of information can be helpful in limiting employee anxiety.
4. Take employee complaints seriously. Even the thermostat setting in your office may have a disparate impact on women. (Whatever.) But do be serious when an employee makes a complaint, especially if it is about allegedly unfair treatment or inappropriate, improper, or illegal activity. At the very least, this means (a) documenting the complaint, (b) investigating the allegation and documenting your investigation, and (c) getting back to the employee with your findings and documenting that discussion. If you are able to substantiate the allegations, you may have to do a lot more. Don’t blow off a complaint like this, even if it comes from a “chronic complainer.”
5. Never fire an employee in anger. If you’re irate, this is the time to suspend with pay pending a final decision, not the time to fire. Even if you’re totally in the right and already have an airtight case for termination that will stand up in any court, you don’t lose a thing by delaying the termination for a few days until you’ve had a chance to calm down and, if you need to, consult with some others who are more detached from the situation.
Many times you’ll be in the right, but additional investigation and more documentation will put you in an even stronger defensive position. And, once in a blue moon, it will turn out that you were wrong. (Ugh. Aren’t you glad that you counted to 10?)
Finally, a disclaimer. Even people who exercise and eat right have to go to the doctor sometimes. Doing these things (like the apple a day) will promote good employer “health,” but it doesn’t mean that you won’t get a charge or lawsuit from time to time, or have to consult with employment lawyers. And if you operate in a heavily regulated area you’ll have to consult with lawyers no matter how good you are.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
