In yesterday’s Advisor, we gave you the first 6 of 10 steps to take if you are sued. Today, we’ll find four more critical actions you must take, and we’ll take a look at a unique HR problem solver.
Here, again courtesy of the Employer Resource Institute®, are "We’ve been sued!" tips 7 through 10. (Go here for tips 1 through 6.)
7. Don’t Create or Destroy Evidence
Once you are sued, meddling with evidence, either by creating or destroying, is probably the worst thing you can do. So at the first notice of a possible suit, put a hold on any document destruction or deletion. If you do destroy what might have been evidence, the court may assume that the destroyed evidence would have supported the case against you.
For sure, don’t backdate or doctor records. It is almost certain to come out, and then the company’s credibility is shot. If you create records, for example, a memo detailing discussions or incidents, date them the day you create them.
8. Prepare a Chronology of Events
Employees with information about the facts of the claim should prepare a chronology of the events leading up to the lawsuit. This will save your attorney time, and you, money. It’s very important that any memos you prepare be specifically addressed to your lawyer by name and marked "confidential attorney-client communication." This will improve the chances that the notes will not be subject to discovery.
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9. Don’t Apologize
Don’t contact the employee who is suing to say you’re sorry or offer to make amends. This can end up hurting your case, since what you say can be used against you as an admission of wrongdoing. Let your lawyer act as the intermediary to explore settlement possibilities.
10. Consider Alternate Dispute Resolution
Depending on your circumstances, it might make sense to offer to mediate or arbitrate the case. Your suing employee may already have signed an agreement to arbitrate disputes as part of his or her hiring intake process.
Explore alternative dispute resolution (ADR) options with your attorney. The ADR approaches often allow you to avoid a court proceeding and could therefore cut your legal fees and eliminate the risk of a large jury verdict. However, you can’t force someone to use alternate dispute resolution unless there is a signed agreement to do so.
So that helps for when you get sued. But what about doing things right to avoid suits? Think about all challenges you have to worry about—COBRA changes, FMLA intermittent leave, ADA accommodation, and many more
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 electronic 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.)
Find out what everyone is talking about. Take a no-cost look at HR.BLR.com and get a complimentary gift.
You can examine the entire HR.BLR.com program free of any cost or commitment. It’s quite remarkable—30 years of accumulated HR knowledge, tools, and skills gathered in one place, and accessible at the click of a mouse.
What’s more, we’ll supply a free downloadable copy of our special report, Critical HR Recordkeeping—From Hiring to Termination, just for looking at HR.BLR.com. If you’d like to try it at absolutely no cost or obligation to continue (and get the special report, no matter what you decide), go here.
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