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University of Massachusetts Amherst

Family Business Center

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:

  1. 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.
  2. 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.'"
  3. 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."
  4. 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.
  5. "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."
  6. 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.

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