Are You Training Managers to Avoid These 15 Common Ways They Could Risk Legal Action?

In today’s Advisor, we share some valuable advice from our sister publication, HR Daily Advisor, on how to use training to avoid lawsuits.

Unfortunately, since employees can bring a suit for just about anything, no amount of training can guarantee eliminating employee lawsuits. However, if you implement effective management training, you can greatly mitigate the risk.
Proper training can:

  • Reduce the number of suits filed;
  • Reduce the likelihood that a plaintiff’s attorney will take the case;
  • Increase the likelihood that the case will be settled for a low amount; and
  • Increase the likelihood that the suit will be stopped at the summary judgment stage.

The items on the list below are all topics that belong in your lawsuit prevention training for supervisors and managers. Maybe you can cover a few a week to break up the training.
Some items on this list should be obvious, but their importance is still great—managers and supervisors need to be consistently trained and continually reminded of their legal obligations.
Here are some of the most common ways that managers and supervisors can put the company at risk of lawsuits:

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1. Inconsistent application of rules/policies. Being inconsistent can open the door for claims of discrimination. There are many examples here:

  • Disciplining employees differently for the same or reasonably similar infraction;
  • Disciplining long after an infraction, which may look forced;
  • Failing to deduct paid time off (PTO) for one employee but deducting it for another who took time off for the same reason;
  • Inconsistent application or approval of Family and Medical Leave Act (FMLA) leave, including the calculation of intermittent leave;
  • Overdocumenting problems in short succession, which can appear unfair, especially if they’re for problems that would not usually be cause for written warnings;
  • Allowing one employee, but not all, to take extra leave, even if that person’s extra days are unpaid; or
  • Allowing other policy exceptions without justification.

2. Discrimination, even if inadvertent, based on any protected category such as age, race, national origin, gender, religion, color, or disability.
3. Not taking steps to stop or prevent harassment when it was known or should have been known, including allowing anything that could constitute a hostile work environment. This includes allowing offensive jokes, posters, screen savers, or discussions. It also includes allowing inappropriate physical behavior, such as blocking someone or limiting movement.
4. Failing to respond adequately to workplace complaints or concerns.
5. Tolerating bullying behaviors. Remember that managers themselves are often cited as those who are doing the bullying in the workplace, so training is important.
6. Failing to document problems with employees. This failure can make later discipline or termination seem unwarranted.
7. Displaying favoritism.
8. Not being completely honest during performance appraisals. This can go both ways—when an employee is unfairly targeted, that’s an obvious issue, but when an employee’s problems are not addressed, that is also cause for concern. Not only can it look like discrimination later should the problematic employee eventually be fired but it can also decrease the morale of employees who see the problem behavior and no action is taken. Separately, inflating performance reviews can have a similar effect.

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9. Retaliating for a protected action, such as taking workers’ compensation or FMLA leave. Remember, retaliation does not just refer to unfair termination but can include many behaviors, such as passing over an employee for good assignments.
10. Speaking ill of any employee to another employee. Even if the employee you are speaking ill of was fired and the facts that were conveyed in the conversation were true, it’s still better to be safe than sorry and not risk a defamation suit.
11. Giving recommendations or good references to some employees but not others. This could appear discriminatory.
12. Giving a recommendation or good reference to an employee who was terminated for cause. This could undermine the case that the termination was warranted.
13.  Not acting on information received that would indicate an employee may be a legitimate safety risk for others.
14. Not enforcing safety rules and procedures.
15. Asking illegal questions during the interview process, such as questions about race, marital or familial status, religion, or health status.
In tomorrow’s Advisor, we’ll cover the final 12 actions that risk litigation.

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