Keep the Reins on HR to Preserve Privilege

Boudreau’s remarks came at a Littler Mendelson Employer Conference in New York City. Boudreau is a partner in the Philadelphia office of the nationwide law firm.

Keep the Reins on HR

"HR sometimes gets too efficient," warns Boudreau. "They get a copy of the demand letter and they jump ahead of Legal, running statistics and writing reports. This enthusiasm is admirable, but it’s a mistake in two ways," he says.

First, Boudreau warns, those reports will probably not be privileged, whereas if you wait and do them at the direction of your attorney, you may be able to claim privilege.

Second, your statistics expert probably has a better way to look at the data—one that puts your organization in a better light. Unfortunately, if HR has already created a set of reports that damage your case, you’ll have to deal with refuting those reports in order to put forth the expert’s more favorable report.

Assess Your Exposure

"Distinguish [class size] from exposure," says Boudreau. Sometimes the class may potentially be large, but your exposure isn’t that great. For example, he says, in one case an employer had 10,000 female employees who, it was alleged, had been discriminated against in promotions. However, a careful analysis showed that there had been only 10 openings, and only a small proportion of the 10,000 were eligible to be considered for the openings. In the end, the exposure wasn’t as large as it first appeared to be.

---

Using the "hope" system to avoid lawsuits? (We "hope" we’re doing it right.) Be sure! Check out every facet of your HR program with BLR’s unique checklist-based audit program. Click here to try HR Audit Checklists on us for 30 days!

---

Use Your Leverage at Settlement Talks

At the beginning of settlement talks, the opposing attorneys will make preliminary demands. One thing they want for sure is a tolling or suspending of the statute of limitations so that they don’t lose their right to sue while pursuing a settlement. This is a point where you have some leverage, so use it to gain concessions. For example:

• Confidentiality agreement. They agree that they’ll keep the settlement details confidential.
• “No trolling” agreement. They agree that they won’t actively solicit new class members.
• "Steps taken are satisfactory" agreement. They agree that the steps you have taken so far regarding preservation of evidence, etc., are enough to satisfy your obligations to this point.

The Ultimate Demand Letter Defense

"The best defense against suits and demand letters is always going to be that you treated employees consistently and fairly, and that you operated in compliance with the law," Boudreau says. "Perform audits regularly, and take action to clean up any suspicious variability."

Regular audits—a great suggestion, but a hard one to put into practice. To get your audits going, BLR’s editors recommend a unique program called HR Audit Checklists. Why are checklists so great? Because they’re completely impersonal, and they force you to jump through all the necessary hoops, one by one. They also ensure consistency in how operations are conducted. And 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.

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.

---

Find problems before the feds do.  HR Audit Checklists ensures that you have a chance to fix problems before government agents or employees’ attorneys get a chance. Try the program at no cost or risk.

---

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.

Other Recent Articles on HR Policies and Procedures
Managers Wearing ‘Please Sue Me’ Placards?
‘Please Sue Me’ (Your Managers Talking?)
Proactive Approach to Social Media Control
Beware the Dark Side of Social Media