The Honorable Denny Chin, former U.S. District Court Judge, and now Court of Appeals judge, made his remarks at a Labor and Employment Law Seminar put on by attorneys of the Seyfarth Shaw law firm in New York City.
What can you do to avoid seeing Judge Chin in court? Here are his tips.
1. Don't discriminate. Know the rules and make sure your decisions are based on legal, business reasons.
2. Supervise your supervisors. Communicate with them, train them, watch them, and deal with infractions.
3. Be brutally honest with employees. Terminated employees who believe that they had no warning that their work was substandard are angry and juries are sympathetic. If you withhold information, you will pay.
4. Grade low. If a "poor" performance rating follows a string of "high" ratings, it looks suspicious.
5. Never say or write anything you will regret. One bad sentence in an otherwise routine communication will catch the jury's attention. Also, remember that many employees will surreptitiously record conversations.
6. Make a record, but not unfairly. If you have written no memos for years, and then you write a sudden string of memos right after the employee makes a complaint, the jury will construe a case of discrimination.
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7. Don't let a weak discrimination case become a strong retaliation case. Remember that employees have a right to make complaints without retaliation. All too often the discrimination case is thrown out but the retaliation case sticks.
8. Be fair even if you don't have to as a matter of law.
Staying out of court—an HR priority, but increasingly a challenge, what with changes in the laws, stretched budgets, over-worked people. And, of course, avoiding lawsuits is just one of what, a couple of dozen recurring HR challenges? What about FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, to name just a few?
You need a go-to resource, and our editors recommend the "everything-HR-in-one website," HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general nonsolicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company's business.
We should point out that this is just one of hundreds of sample policies on the site. (You'll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
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