Jon
Yarbrough's
"Employment
Law Corner"
courtesy of the
Asheville Citizen-Times
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March 28, 2005:
"Want to Get Sued by
your Employees?
Here are Seven Easy Steps to Achieve Your Goal."
By Jonathan
W. Yarbrough
Have you been wanting to spend more time with your employment
lawyer? Are you itching to spend more in legal fees? Then follow some
of the steps below, and you will get to do both.
Step No. 1 for getting sued: Don't conduct yearly training
for all supervisors and managers on sexual harassment or any other
forms of harassment and discrimination, including race, national
origin, color and gender.
Instead, to avoid a lawsuit: Employers should adopt and implement
policies on sexual and other unlawful forms of harassment and should
train their employees at least annually on the policies regarding and
the procedures for reporting suspected harassment.
Step No. 2 for getting sued: Always discuss an employee's
Protected Health Information with other employees.
Instead, to avoid a lawsuit: Conversations about PHI may violate
the Health Insurance Portability and Accountability Act. Even if the
discussion does not involve PHI, discuss an employee's physical and
mental condition only with supervisors, managers and other employees
who have a legitimate business need to know the information. You don't
want to be accused of discriminating against someone who is disabled
or perceived to be disabled.
Step No. 3 for getting sued: Don't bother publishing an
employee handbook containing company policies and procedures.
Instead, to avoid a lawsuit: Do publish a handbook clearly spelling
out workplace policies and procedures, including procedures for
reporting work-related complaints and your company's wage payment
policies. Make sure your handbook clearly states that it does not
constitute a contract for employment.
Step No. 4 for getting sued: Don't pay attention to those
immigration laws.
Instead, to avoid a lawsuit: Employers must complete INS Form I-9
to verify the identity and employment eligibility of every new
employee. Compliance with immigration laws can be challenging. On the
one hand, you cannot employ unauthorized workers, but on the other
hand, you are subject to penalties and potential lawsuits for over
documentation and/or discrimination arising from "excessive"
I-9 inquiries.
Step No. 5 for getting sued: Always procrastinate or avoid
confrontation with a poor performer.
Instead, to avoid a lawsuit: The longer you wait, the worse it
gets. Then, one day when you blow up and want to fire the person on
the spot, you find that you have no documentation of the prior
problems. Your now ex-employee hires a lawyer and claims he or she was
the victim of discrimination and fired without warning, and it all
could have been avoided with a little timely documentation.
Make sure memos/warnings issued to your employees include the
following information:
The nature of specific violation
-
The mention of prior related disciplinary issues
-
Identification of the potential consequences if no improvement
is made
-
The employee's response to the warning and signature
acknowledging receipt of the warning
-
The date, including the day, month and year
-
The supervisor's/manager's signature documenting the discussion
Step No. 6 for getting sued: Pay all of your employees a
salary and avoid having to pay them overtime pay.
Instead, to avoid a lawsuit: Only employees who are paid a
guaranteed salary and who perform certain duties can be considered
exempt from overtime laws. Simply paying someone a salary or giving
him or her a fancy title does not suffice.
Step No. 7 for getting sued: Never seek qualified
professional help unless the problem gets out of hand.
Instead, to avoid a lawsuit: The most expensive cases usually are
the ones where employers tried to handle issues that were beyond their
level of expertise.
