Steps for Employers To Avoid Employment Litigation

Employers want to avoid unnecessary employment litigation. Litigation is costly, uses company resources, and can harm the company’s reputation. Though lawsuits can happen even with the best practices in place, employers may be able to avoid many lawsuits with strong workplace policies and enforcement. If a lawsuit does arise, employers can be confident that they have done what they can to prepare themselves for legal action.

This article covers steps employers can take to reduce the risk of employee lawsuits. Whether you are facing legal action or want to be proactive in avoiding future lawsuits, it’s essential to speak with an attorney. Contact an experienced litigation attorney who understands the employment laws in your state.

Understanding Employment Litigation

As a business owner or employer, you want to do everything you can to avoid employee lawsuits. Legal actions involving employees are expensive, time-consuming, and bad for workplace morale. Some of the most common lawsuits that employees bring include:

• Wrongful termination
• Minimum wage and overtime violations
• Retaliation for employee complaints or whistleblowing
• Sexual harassment and hostile work environment claims
• Discrimination claims involving protected classes under federal laws:
  • Title VII of the U.S. Civil Rights Act
  • Americans with Disabilities Act (ADA)
  • Age Discrimination in Employment Act (ADEA)
• Family and Medical Leave Act (FMLA) violations

Learn more about common types of employment lawsuits.

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What Are Employment Best Practices to Reduce the Risk of Litigation?

“My best advice to employers is always to have policies in place, to make them real policies that people understand, and that will give employees confidence that they will be treated equally and fairly when matters arise,” says Wayne J. Positan, an employment litigation attorney at Lum, Drasco & Positan in Roseland, New Jersey.

Three things are essential for reducing the risk of litigation include:

1. Policies
2. Enforcement
3. Documentation

Fair Company Policies

“It’s important that all employers understand that the goal is to have a fair and efficient workforce for everyone who is part of the entity,” says Positan. To achieve this, employers must have “solid and clear human resources policies, including anti-discrimination policies.”

Company policies should be clearly stated in an employee handbook.

Equal Enforcement

Having good policies isn’t enough. Employers must enforce those policies in a fair and equal way.

“Employers can’t play favorites,” says Positan. “For example, they can’t look the other way just because a top salesperson is involved in unacceptable behavior.” Such preferential treatment is unfair. Coworkers notice when employers are not fair and impartial.

“Administration of HR policy that is fair and comprehensive will get ahead instead of behind the curve in avoiding litigation,” Positan says.

Documentation

“I think the biggest mistakes employers make are failing to document less-than-acceptable performance and failing to ensure that employee evaluations are done fairly and accurately,” says Positan. “The failure to document is probably the most common problem I see with employers. You can’t just decide one day that you’re going to take an employment action without having the background to show what you’re talking about.”

“If an employer says, ‘this person is always late or has always been a poor performer or isn’t doing their job,’ then I, as a lawyer, want to know what’s in the file that shows the employer has been talking about these issues with that person.”

Ultimately, “Juries expect that employees should be treated fairly. And if you can show, as an employer, that someone has been treated fairly but that they’re still a poor employee, you’re in a much better position to prevail in litigation,” he says.

Are There Alternatives to Lawsuits?

The vast majority of employment lawsuits settle before going to trial. Settlement is often achieved through some form of alternative dispute resolution (ADR). ADR options include mediation, arbitration, and settlement conferences.

“Any time entities or persons have a dispute, they can always mediate it,” says Postian. “Typically, mediation doesn’t occur until an employer gets a claim from an attorney representing a plaintiff with a legal problem, which the attorney usually outlines in the letter. Often, the plaintiff’s attorney will ask in their letter if the employer wants to talk before litigating.”

If the employer agrees to talk, says Positan, they will engage in a comprehensive review “to determine what the situation with the employee is. At that point, the parties could agree to voluntarily mediate the matter, using an experienced mediator or a retired judge.”

If the parties choose to litigate, “A judge will usually refer [the parties] to mediation at some point in the litigation process, usually early on,” says Positan. For example, “In the federal courts in New Jersey, there are both mediation and arbitration programs with panels of mediators, to which the federal judge will assign mediation.”

Potential Benefits of Mediation in Employment Disputes

Why is mediation important? “It’s a way for the parties to at least talk to one another,” he explains. “Even if the case doesn’t settle in mediation, many cases settle soon thereafter. Mediation serves the purpose of getting the parties into a room with somebody who doesn’t have a stake in the action and getting them to talk to each other.”

Additionally, mediation can be cheaper and less time-consuming. “From an employer’s perspective, if you can resolve a case before attorney’s fees and other costs start settling in, it’s worth a look at least,” says Positan.

“And if mediation doesn’t reach a settlement, then it’s a confidential process, so it won’t be admissible in a trial proceeding. At the end of the day, you’ve at least made an effort to settle the case. You get an idea of the other side’s position and whether there is a chance to work something out.”

When Should Employers Seek Legal Help?

The short answer is as soon as possible. “I find that employers who seek counsel early are able to avoid litigation, or at least put themselves in a posture where they’re better able to defend themselves against litigation,” says Positan. “For smaller and midsized employers, I would recommend that they have knowledgeable employment HR counsel and utilize them early on before making decisions.”

Issues for which employers should seek legal counsel include:

• Reorganization of roles and departments
• Reduction in workforce or layoffs
• Discipline and workplace performance issues
• Anti-harassment complaints and whether there should be an investigation
• Possible criminal charges

“These are all matters on which employers should consult their employment counsel before making decisions so that they can avoid making a bad decision or one that will be subject to litigation,” says Positan. “If you’re an employer or business owner who doesn’t have employment counsel, and you’re in a position to make adverse employment decisions, then maybe it’s time you got counsel.”

Find the Right Employment Litigator for You

Initial consultations help lawyers understand your case and help you decide if the lawyer is the right fit. To get the most out of a consultation, ask informed questions, such as:

• What are your attorney’s fees and billing options?
• What is your experience in employment litigation?
• What is the timeframe of an employment lawsuit?
• Do I have alternatives to litigation?

Once you have met with a lawyer and had your questions answered, you can begin the attorney-client relationship. Your attorney can provide specific legal advice and represent you in any employment disputes. Find an experienced employment litigation attorney in the Super Lawyers directory.