Wednesday, September 10, 2014

Even More of the Top Ten Practices to Help Employers Avoid Liability

This week we are addressing ten employment practices that help employers avoid liability on employment claims. Wage and discrimination claims continue to increase. While nothing can prevent an employee or applicant from filing a claim, best practices in the workplace can reduce an employer’s risk of ultimate liability, and maybe the number of overall claims. As we cautioned yesterday, “employ defensively”. Here are more of the top ten practices to help employers avoid liability:

5.  Update IT and Social Media Policies.

An employer that hasn’t reviewed and updated its IT and social media policies in a few years is essentially an employer who has a litigation time bomb ticking. This is a constantly changing area of employment law for two reasons. First, the world of information technology and social media is ever changing. Secondly, the law moves a great deal slower than the changes in technology.

A few years short years ago employers were regulating the way that employees talked about their employment, both on and off duty, confident that their actions were lawful. With the National Labor Relations Board in the lead, employers know now that sometimes regulating or interfering with what employees say to each other about their jobs, even if made public via social media, and even if unflattering or critical, is protected activity. Additionally, while it is ever more acceptable to use internet information to investigate candidate qualifications, it must be viewed in much the same fashion as interview questions. It is not unlawful to obtain information about candidates from the internet, but it is unlawful to base employment decisions on protected characteristics such as race, religion, etc.  Gathering information which identifies protected characteristics of an employee or candidate, much like asking an applicant if they are married or plan to have a family, gives an unsuccessful candidate or disgruntled employee a toehold for a claim of discrimination. Rather than acknowledge that they were not the most qualified candidate or that they engaged in employee misconduct, litigants easily convince themselves that their disappointments stem from their protected characteristics which the employer knew about as a result of their internet research.

The lesson to learn for employers is to periodically review their policies and ensure that they have well defined internet and social media policies that reflect the current law.

6.  Issue Discipline With Policies and Past Practices In Mind

At the risk of being overly repetitive, the greatest risk for a discrimination claims occurs when the employer takes an adverse action which is inconsistent with previously stated policies or practices. Simply put, if an employer tells its employee that it will do things a certain way, or has always treated employees in a certain way, and then takes inconsistent action with another employee, it leads that differently treated employee to believe that the employer acted unlawfully. For instance,  an employer has a policy that employees will be suspended if they are tardy six times in a year but it has never really enforced the policy and often overlooks frequent tardiness because the offending employees are otherwise good performers. A mediocre or underperforming employee is late six times in a year and the employer suspends him because  the employee’s overall performance and behavior does not meet the employer’s expectations, and he is tardy on top of that. The employee is also over the age of 40 years. That employee may later claim that he was treated unlawfully because of his age and point to the more favorable treatment of others and the employer’s failure to follow its own policy in other instances when those others were under 40 years of age as evidence of that discrimination. The employer certainly did not base its decision on an unlawful reason, but its failure to follow its own policy and practices makes it look guilty. Defending this claim will be more difficult than if the employer had either followed or changed its policy on tardiness so that it would act consistent with it.

The lesson is obvious, if an employer has a policy that it really doesn’t want to follow, then it should change or eliminate it. Otherwise, an employer should generally follow its policies and practices when it disciplines employees absent some unusual and documented reason to the contrary.

Tomorrow we will post more of our ten practices to help employers avoid liability in employment claims.