HR Management & Compliance

Inconsistency and Retaliation—Lawsuit Magnets

Yesterday’s Advisor discussed laying the groundwork for firing; today, the dangers of inconsistency and retaliation, plus an introduction to the unique guide just for smaller—or even one-person—HR departments.

Follow Disciplinary Procedures

If your investigation concludes that an employee has violated the law or your employment policies, you need to follow your general disciplinary policies and procedures in meting out punishment.

Your disciplinary systems should:

  • Ensure that the appropriate discipline is applied (the punishment fits the crime).
  • Ensure that discipline is consistent for all employees.
  • Give employees fair warning that they have violated company policies.
  • Give employees a chance to improve.
  • Create a paper trail of evidence to show what the employee did and how you responded.

Make sure you follow your discipline system consistently. Disciplining some employees but not others for the same types of problems is just asking for a discrimination claim.

Watch Out for Retaliation

Almost all of the federal employment laws prohibit retaliation against employees who exercise their rights under those laws. That includes the employment discrimination statutes as well as other laws granting protections to employees, such as the Family and Medical Leave Act, the Fair Labor Standards Act, and many others.

In general, retaliation is any adverse action that’s taken against an employee for filing a complaint, supporting another employee’s complaint, or otherwise asserting the employee’s rights under a federal employment law. In the context of firing, the most common type of retaliation claim involves an employee who alleges he or she was fired for complaining about harassment or discrimination.

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Double Check

Before making a final decision to fire someone, it’s helpful to step away for a moment to take a look at the big picture. Ask yourself if there’s any chance that you’re firing the employee for some reason other than the one you claim. Is the employee being treated differently from other employees with similar performance or misconduct deficits? If so, why? Is there anyone in the company who will be glad to see the employee go? If so, why? If the underlying reason for their feelings is discrimination or retaliation and they had any influence in the firing decision, you could be in big trouble.

What if you make the wrong decision? A growing number of courts say that when an employee claims he was wrongfully discharged for misconduct, the issue isn’t whether he’s guilty but whether you reasonably believed he was guilty. As long as your investigation was fair and your conclusion reasonable, you’ll be protected from liability even if you were wrong.

Document Everything

No matter how diligently you follow your disciplinary procedures, no matter how honest and fair your evaluations, it won’t mean much in court without clear documentation to support your decision.

Performance management—just one of the many challenges HR managers face. From hiring to firing, HR’s never easy, and in a small department, it’s just that much tougher.

BLR’s Managing an HR Department of One is unique in addressing the special pressures small HR departments face. Here are some of its features:

  • Explanation of how HR supports organizational goals. This section explains how to probe for what your top management really wants and how to build credibility in your ability to deliver it.
  • Overview of compliance responsibilities through a really useful, 2-page chart of 23 separate laws that HR needs to comply with. These range from the well-known Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and new healthcare reform legislation, to lesser-known but equally critical rules, such as Executive Order 11246. Also included are examples of federal and state posting requirements. (Proper postings are among the first things a visiting inspector looks for—especially now that the minimum wage has been repeatedly changing.)

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  • Training guidelines. No matter the size of your company, expect to conduct training. Some of it is required by law; some of it just makes good business sense. Managing an HR Department of One walks you through how to train efficiently and effectively with a minimum of time and money.
  • Prewritten forms, policies, and checklists. These are enormous work savers! Managing an HR Department of One has 46 such forms, from job applications and background check sheets to performance appraisals and leave requests, in both paper and PDF format.

If you’d like a more complete look at what Managing an HR Department of One covers, click the Table of Contents link below. Or, better yet, take a look at the entire program. We’ll send it to you for 30 days’ evaluation in your own office with no obligation to buy. Click here, and we’ll be happy to make the arrangements

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