6 Secrets of Avoiding Lawsuits—From the Dark Side

Warner is the founding partner of Moody and Warner PC in Albuquerque, New Mexico. Her tips came at the SHRM Annual Conference and Exhibition, held recently in Las Vegas.

There are things employers can do to keep claims away, says Warner. Here’s what she recommends:

1. Be Responsive to Complaints

When employees complain, they want the situation fixed. So be responsive, says Warner.

• Act quickly, within 24 hours if possible
• Treat the complaint like it has merit instead of like it doesn’t
• Ask yourself, what would I do if everything the complaining employee says is true?
• Have skepticism about the supervisor’s explanations
• Verify everything on paper

2. Discipline the Manager Who Dropped the Ball

In these situations, says Warner, there is usually someone who observed the inappropriate conduct/language/jokes but did not intervene, or someone who sat on a complaint without reporting or taking action, or someone who made a decision without using correct procedures.

Discipline these people, she says.

3. Discipline Those About Whom the Allegations Were Made

Discipline those about whom complaints were made (if the complaints are shown to be accurate).

4. Maintain Great Documentation

What I don’t like to see, Warner admits, are any of the following:

• Notes of complaints and meetings
• Documents with the employee’s actual mistakes
• Progressive discipline records including an agreement to try harder
• E-mail, Facebook, or Twitter records showing that the employee didn’t care about the job or knew he or she was doing a bad job
• Damaging records of internet, e-mail, and text usage.

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5. Disown the Bad Conduct

Be sure to formally disown the conduct, says Warner.

“X is against the policy and values of the organization.
Thank you for reporting it.”

And of course, Warner says, do not permit any retaliation

6. Show Candor and Empathy

Be clear: “We messed up. We feel terrible. This is how we fixed it.”

“This KILLS!” Warner says.

Top 3 Things I Hate

There are three things that Warner, as a plaintiff’s attorney, hates:

1. The employer responded with an immediate and adequate investigation
2. The employer fixed it. The conduct stopped, and corrective action (termination if appropriate) was taken.
3. The employer tried to make it right by offering something to “compensate” the employee, for example, time off, counseling expenses, a new location, a different supervisor, repayment of lost wages, or simply asking the employee what would make it work.

Dealing with employee complaints—a critical concern, no doubt, but hardly the only one you’ll have to worry about today. Who knows what your supervisors and managers are up to while you’re not looking. The solution? There’s only one: regular audits.

Audits are the only way to make sure that employees in every corner of your facility are operating within policy guidelines. If you’re not auditing, someone’s probably violating a policy right now.

The rub is that for most HR managers, it’s hard to get started auditing—where do you begin?

BLR’s editors recommend a unique product called HR Audit Checklists. Why are checklists so great? Because they’re completely impersonal, forcing you to jump through all the necessary hoops one by one. They also ensure consistency in how operations are conducted. That’s vital in HR, where it’s all too easy to land in court if you discriminate in how you treat one employee over another.

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HR Audit Checklists compels thoroughness. For example, it contains checklists both on Preventing Sexual Harassment and on Handling Sexual Harassment Complaints. You’d likely never think of all the possible trouble areas without a checklist; but with it, just scan down the list, and instantly see where you might get tripped up.

In fact, housed in the HR Audit Checklists binder are dozens of extensive lists, organized into reproducible packets, for easy distribution to line managers and supervisors. There’s a separate packet for each of the following areas:

• Staffing and training (incorporating Equal Employment Opportunity in recruiting and hiring, including immigration issues)
• HR administration (including communications, handbook content, and recordkeeping)
• Health and safety (including OSHA responsibilities)
• Benefits and leave (including health cost containment, COBRA, FMLA, workers’ compensation, and several areas of leave)
• Compensation (payroll and the Fair Labor Standards Act)
• Performance and termination (appraisals, discipline, and termination)

HR Audit Checklists is available to HR Daily Advisor readers for a no-cost, no-risk evaluation in your office for up to 30 days. Visit HR Audit Checklists, and we’ll be happy to arrange it.

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