Yesterday’s Advisor featured the first five of attorney Aaron Zandy’s 10 things we do to get sued. Today, the rest of the 10, including failure to pay correctly.
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[Go here for failures 1 to 5.]
6. Failure to Pay Correctly
Yes, it’s the pay thing. Zandy’s danger zones:
- Misclassification (exempt vs. nonexempt)
- Timesheets (in and out)
- Meetings (mandatory and unpaid?)
- Off-the-clock (off-duty helping on-duty)
- Travel
- Bonuses (discretionary vs. nondiscretionary)
The good news is, plaintiffs’ lawyers are unlikely to take a case if time cards are acknowledged (this is accurate, there was no off-the-clock work, etc.). Zandy suggests that employers do all this on the MIS system.
7. Failure to Apply Policies Consistently
Be fair, be consistent, and no surprises, says Zandy. Consistent application of policies and procedures is what it is all about. Failure to do so shows favoritism and provides credible evidence of discrimination or retaliation.
Employment claims are won and lost on circumstantial evidence, and this is a key component of that analysis.
The opposing attorney may start asking, “How about policy #17. Do you uphold that?” “No,” you answer, “we have a different approach in practice.” “How about policy number 34?” “Well, that’s changed because of budget reasons.” “So, you pick and choose which policies to follow? How convenient.” This sort of attack is obliterated by good documentation, Zandy says.
8. Failure to Follow Up After Complaints
If employees complain, they want to know that their employer cares enough to look into their complaints. Even if the answer is not what the employee wants to hear, he or she will appreciate the effort. The follow-up is as important as the investigation, Zandy says. Take time to sit down with the employee and communicate findings and results.
Zandy has encountered several situations in which the employee says, “I complained and they did nothing,” when in fact there was a full investigation and punishment. The managers thought they couldn’t share because of confidentiality. NO, says Zandy, you can say, “I can’t share the details, but we did investigate and took action.”
Follow up periodically for at least 6 months, possibly longer, Zandy says.
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9. Failure to Administer Leave
Train managers on the FMLA? Good luck with that, Zandy says.
ADA and FMLA claims are at an all-time high, he adds, so train your managers and supervisors to be on the lookout for employees asking for an accommodation to job duties, say a reschedule due to something “medical” (injury, surgery, illness, etc.).
Instruct managers and supervisors to always maintain confidentiality of medical-related information and to always send medical notes to HR. Zandy suggests that for all leave issues, managers and supervisors should:
Call HR! Call HR! Call HR! Call HR!
10. Failure to Treat Employees with Dignity and Respect
Employees want to be loved, and happy employees don’t sue! says Zandy. Strive for:
- Open and honest two-way communications,
- Fair, consistent, and honest performance evaluations,
- Employee involvement opportunities,
- Individual (team and company) awards and appreciation for work, and
- Opportunities for career advancement.
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- 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 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.
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