Last week we gave employers five ways to increase the number of employment lawsuits against them. Based on our collective experience in working with employers and defending employment lawsuits, we have identified five more common mistakes that increase an employer’s risk of litigation:
I. Loose Lips After Employee Termination
It is important that the facts and circumstances surrounding an employee’s termination remain confidential. Employers should be wary of conversations with the employee regarding his or her work performance after termination. Likewise, the employer should not discuss the reasons for termination internally except with individuals with a legitimate need to know.
II. Uncontrolled Letters of Reference
Glowing letters of reference for someone terminated for performance reasons often become “Exhibit A” in an employee’s discrimination complaint. It is very important to have a policy about the type of information that can be written in reference letters, and to have a centralized base from which all reference letters are issued. One way to avoid this problem is to have a policy that prohibits providing any references other than to confirm the employee’s last position/job title and his or her inclusive dates of employment.
III. Failure to Define At-Will Relationship
Employers must make clear, whether in an offer letter, contract, or handbook, that the employment is at-will, meaning that either the employer or employee may terminate the relationship at-will, at any time, with or without cause or advance notice. An at-will policy should be included in all applicable offer letters and employee handbooks.
IV. Failure to Keep Track of Employee Hours Worked
Wage and hour lawsuits, where employees claim they did not receive overtime pay or were not paid for hours worked, have increased in recent years. Proper documentation of hours worked, including meal breaks, and the amount employees are paid goes a long way toward preventing and defending many of the most common types of wage and hour lawsuits.
V. Handling EEOC/IDHR Charge of Discrimination On Your Own
Another common mistake employers make is to handle and respond to charges of discrimination filed by former employers with the Equal Employment Opportunity Commission or the Illinois Department of Human Rights without the advice of legal counsel. This is the employer’s first opportunity to present its side of the story to the agency and it should be handled with care. It is generally a good idea to consult with an employment attorney to guide you through the process.