Sometimes we say that we’ve "seen it all" in employment problems-only to turn around and discover yet another unique way that employees or employers have gotten themselves in trouble. One thing is certain, we see the following four situations all the time and they muddy the waters for employers almost every time.
Inaccurate employee performance evaluations
Too often employers are overly cautious in writing performance evaluations and will omit an employee’s deficiencies in an attempt to not “rock the boat” or to not damage the employee’s self-esteem. However, employers are doing themselves a disservice when they do not point out, honestly and with concrete examples, areas for improvement with an employee. First, pointing out deficiencies and providing constructive ways to improve on them can lead to better performance and a better employee for the organization. Second, positive performance reviews for employees that are struggling can be used against an employer in litigation. If an employer were to discharge an employee for poor performance or other violations of policy, and such behavior occurred during the time of performance evaluation, if that behavior is not documented then the positive performance evaluations can be used as evidence of pretext. A common refrain in litigation from plaintiffs is “look at my evaluation,” and “if there was a problem why was it not documented”? While positive performance evaluations for a struggling employee are not going to single-handedly sink a case for the employer, they are at best an unnecessary distraction and at worst something that will need to be refuted through testimony and/or affidavits and can create an issue of fact to be resolved by a jury. Performance evaluations should therefore honestly and professionally document any issues an employee may be having while providing concrete examples of such issues and specific ways to address and resolve them.
Another common mistake is the failure to preserve any and all documentation at the first sign of any litigation by the employee. “Documentation” does not just mean the employee’s personnel file; it covers all documents, including emails, text messages, and other electronic documents such as word and pdf files. This can be especially thorny for public employers given the sometimes abrupt turnover of elected officials and employees. A recent example of this was court sanctions against a municipality for not preserving the cell phones (and the text messages that resided there) of officials who were involved in the decision-making process regarding a police officer’s employment. Sanctions can lead to monetary fines and also to adverse instructions to the jury at trial informing them that certain documents or information were destroyed by the employer. It is also important to note that “first sign of any litigation” does not just mean the filing of a lawsuit by the employee. If an employee files a charge or complaint of discrimination, either internally or with an external agency, the document preservation duty kicks in. All employees who may have control over any information related to that employee should be told to not delete anything, even if it is part of their normal practice.
While it is assumed all employees, especially managers, are aware of the employer’s discrimination policies, it is vital that the policies and reporting procedures are disseminated to all employees, and that managers are aware of what to do should they receive a complaint of discrimination or harassment. Similar to the performance evaluation issue, this may not single-handedly make the plaintiff’s case, but it presents a “bad fact” if either the employee or, more importantly, the manager is not aware of the policies and what to do if a report is received. Additionally, and ideally, there should be multiple avenues for an employee to report discrimination and/or harassment to allow an employee to circumvent their immediate supervisor if they should so choose. Training of managers on a regular basis on the employer’s EEO policies and how to handle complaints from employees should be encouraged.
The old adage that “no good deed goes unpunished” can be used in the vast majority of employment lawsuits. Employers may believe they are “being nice” or accommodating to an employee by bending the rules for them, but this can lead to problems in litigation. Any other employee a plaintiff can point to who was treated more favorably than her for similar misconduct can lead to arguments that they were treated better because they are not in the same protected class as the plaintiff. By applying the rules and policies of the organization evenly to all employees the employer cuts off any potential argument that they are “playing favorites” to a different class of individuals.
While an infinite number of ways apparently exist for the employment situation to go sour and end up in litigation, employers should note that if they avoid these four common mistakes, they may avoid some litigation, or at least find themselves in a better defensive position if they are sued.