The Top 10 Reasons Employers Get Sued

If you think the music business is the only one with a list of “Top 10 Hits,” think again. Employment lawyers have one, too.

According to attorney Peter Janus, a partner with Siegel, O’Conner, Zangari, O’Donnell & Beck of Hartford, Connecticut, these are the 10 most common reasons employers are being sued these days:

1) Unlawful Pre-Employment Questions. Laws such as the Americans with Disabilities Act make it imperative that you ask only what you are allowed to, and treat all applicants equally. Janus suggests: “Standardize the application and interview process, keep questions objective and focused on job requirements and on the skills needed to perform those requirements.”

2) Dishonest Evaluations. In an effort to be nice, many managers “sugarcoat” bad performance on reviews. Then, when the inevitable termination occurs, the ex-employee uses that paper trail in court to press a wrongful termination suit. Janus suggests relying on objective criteria, noting plainly when standards are not met, and avoiding personal comments.

3) Rash Disciplinary Decisions. Employers sometimes react out of emotion in taking disciplinary measures … a recipe for trouble. Janus says do a thorough investigation. Review employees’ file, gather proof they received a copy of the policy violated, and provide a chance to tell their side of the story.

4) Termination Errors. Firing an employee is something most employers just want to get over with, but Janus calls for a careful review process, including making sure there were no written or oral promises of continued employment. He recommends a structured termination meeting from prepared notes. “Clarify the logistics of severance,” he says, “and don’t apologize or talk about other people.”

5) Uninformed Medical Request Decisions. Because medical leave falls into what he calls the “Bermuda Triangle” of FMLA, ADA, and workers’ compensation, Janus tells managers to thoroughly consult with HR before replying to leave requests.

6) Uninformed Supervisors. Be sure your supervisors are trained and updated on the full range of your policies and relevant workplace laws, says Janus, and do it before distributing policies to employees.

7) Uninformed Managers. The same goes for managers, only more so. If managers resist HR training, Janus says a powerful motivator is telling them that, in some cases, a court may find them individually responsible if a lawsuit ensues. And in every case, causing enormous liability for the company is not usually a good career move.

8) Incorrect Exempt/Nonexempt Decisions. This is the Department of Labor’s current “Issue Du Jour,” with huge actions taken against companies that range from Wal-Mart to the corner store. It’s imperative that everyone with compensation responsibilities be trained in the requirements of the Fair Labor Standards Act (FLSA) on this issue. And, warns Janus, “the longer [unlawful overtime exemption] situations exist, the more expensive they become.”

9) Docking Employees Illegally. Legal ways of reducing employees’ pay for disciplinary reasons are very limited, so managers are advised to consult with HR before taking this step. Janus notes that “substantial penalties apply” for illegal docking.

10) Illegal Reduction in Overtime Rate. To build up their paychecks, some workers “make deals” with their employers to work overtime at less than the required time-and-a-half rate. This is illegal, warns Janus. “Employees cannot waive their right to overtime.”

In the coming weeks, HR Daily Advisor will provide more information on many of these points. But in the meantime, try to stay off the employment law hit list … because you’re the one who’s likely to take the hit.