Failing to effectively communicate with your employees isn’t just bad for business. It also can create a work environment that’s ripe for legal trouble. If you take time to communicate, explain your actions, stay involved and make the workplace seem rational to employees, you will increase your chances of staying out of the courtroom.
Below are five of the most common errors that land employers in court—along with tips on how to avoid making them in the first place. As you’ll see, communication lies at the heart of all of them.
1. Failing to document performance issues
Remember this: Arbitrators, judges and juries will believe one document over 10 witnesses. Your documentation doesn’t have to be formal or perfectly written, but it does have to be understandable, contemporaneous—and dated! Many employment cases—especially those involving retaliation claims—hinge on timing issues alone.
If the offense is not egregious, follow a progressive disciplinary process. Judges and juries appreciate when the employer can show it bent over backward to try to save an employee. And while not critical, obtaining an employee’s signature on documents involving progressive discipline can be very helpful.
2. Failing to have effective policies and preventive measures
In today’s environment, the best way to limit your exposure to employment claims is to have policies on workplace harassment, FMLA leave, workplace violence and standards of conduct. They’re critical.
Before putting such policies in place, it’s always a good idea to seek legal counsel from an employment attorney to ensure they are drafted correctly and that you have covered all the bases.
For example, standards of conduct must preserve an employer’s ability to be flexible. Harassment policies need to include information about the proper method to report violations if employees experience or witness harassment in the workplace.
Job applications and employee handbooks also can be great tools to help avoid employment claims. They are the employer’s two best friends. On job applications, courts have upheld provisions addressing at-will employment and the right to check with prior employers for references. Your handbook can include a mini-statute of limitations, restricting the period of time that employees can file employment claims against the company.
3. Failing to provide accurate and honest performance evaluations
At many wrongful discharge trials, the plaintiff’s first exhibits are recent performance evaluations—almost always showing good, if not excellent, performance. If evaluations inaccurately reflect good performance, employees will often argue that their termination from a company was illegal or discriminatory.
Hold supervisors accountable for the accuracy and timeliness of their performance evaluations. Make sure the forms themselves encourage frank and constructive criticism.
For example, some forms have a checkbox format that allows managers to select general performance descriptions such as “meets expectations” or “exceeds expectations.” With those options available, managers rarely check “does not meet expectations.” If they do, it raises questions about whether the employee should be working at the company in the first place and whether the supervisor is doing his job.
Avoid generic forms that tend to result only in positive reviews. Where possible, tailor evaluation tools to the specific job and use objective criteria and metrics to measure performance.
4. Failing to explain a termination decision
Employers that are afraid to tell employees why they’re being terminated are opening themselves up to legal action.
Tell the truth when you’re letting someone go. Don’t try to soften the blow by waffling about the reason for the termination, implying that it’s not his fault, or that he’s simply being “laid off.” Failing to be up front with an employee you’re terminating is a cardinal sin of management.
Worse is refusing to give any reason at all. Chances are good the employee will seek answers at an attorney’s office.
5. Creating a perception of favoritism
Employees get disillusioned and angry when their work environment becomes stressful because favoritism is the rule of the day. When workers believe that favoritism is driving a manager’s decision-making, turning to legal counsel or a labor organization for protection is often the next step.
To avoid this, it’s critical to train front-line supervisors to maintain consistency and clarity in personnel actions. They must know how important it is to be clear about why they are doing things the way they are. Monitor supervisors’ performance to make sure they’re not creating the perception of favoritism—or worse, discrimination.
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April 4, 2012 2:51 pm | 
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