Protect Against Ex-Employee Lawsuits!
by Shel Horowitz
Kathrine Robertson has some advice for employers: watch your mouth!
And Robertson would know. As an employment lawyer with FBC sponsor Bulkley, Richardson and Gelinas LLP, she's seen a lot of employers and managers shoot themselves in the foot - as their former employees scarf up large settlements in court.
While nothing is ironclad - a recent case substantially weakened employer protection through "fine print" on employee handbooks - employers can take steps to lower their risk:
- Train your managers in antidiscrimination and sexual harassment laws and policies - including what they can and cannot ask about health and wellness - and what jokes are or are not acceptable.
- Be consistent. "If Jim steals company property and you don't take disciplinary action, when Jane steals and you do take action, you're going to have a problem. The foundation of any claim like that is 'I was treated differently.'"
- Be honest about why you're terminating, especially if it's a performance issue, "If there's a suit and you come back and say I've got a list of the times I had to reprimand this employee, but you told him on the day you let him go, 'business is slacking off and I don't need this position,' all that person has to prove is that you lied. Don't spare them but be courteous and professional about why this relationship is gong to end."
- Document consistently. Put a brief note in the file, as soon as there begin to be problems. "Keep a record and if it's a performance-based termination—if it's a reduction in force that you can document, you're probably safe —it's best if the bad performance doesn't come as a total surprise to the employee." She noted that employees will get a lot of free help from Massachusetts Commission Against Discrimination, including translators.
- "If you're dealing with someone in a protected category, talk to them about their performance. Don't talk about their health, but that their productivity is down. Don't explore why, but explore what is happening."
- If you become aware of problem behavior, for instance, circulating offensive jokes by e-mail take action as soon as it comes to your attention - and document your response.