Eight Great Ways to Get Sued. Real-life case: ‘They complain about everything.’ After making...

Eight Great Ways to Get Sued

Copyright 2007 Progressive Business Publications

Real-life case: They complain about everything. After making complaints unrelated to discrimination, they file another complaint harassment and discrimination from others. Supervisor:Ignores complaint.Disciplines them for complaining.They sue. Who won the case? Why?


No. 1: Ignoring a complaint of harassment or discriminationThe solution? Investigate all complaints by:Asking for the complaint in writingTalking with witnesses and others involvedReporting to HR for follow-upInforming employee about investigation


No. 2: Condoning a hostile workplaceInvolves taking an active part.Example: Joke about injured employeeSupervisor joins inObject of ridicule complainsAlways take action to address complaint.


No. 3: Appearing to retaliate against complaining employeesCommon appearances of retaliation:SuspensionRefusal to promoteDenial of trainingFiringYou can take action against employee who complains, if ...Documentation helps.


No. 4: Failing to document your decisionsNo written record he said/she said.Keep documentation, particularly about:WarningsDisciplinary actions


No. 5: Making inappropriate commentsWide range of comments. Consider:SourceLinks to actionExample: Comments about pregnancy and work.Solution? Avoid and discourage them.


Real-life case: You laid me off because of my age.Manager calls them old coots.They get laid off. They sue, citing managers comments. Who wins? Why?


No. 6: Inconsistent decisionsExamples: Employee gets good appraisals.Supervisor doesnt want to make waves until situation gets out of control.Employees reaction: I was doing fine.Solution: Document and warn early.


Inconsistent decisions (contd)Two examples: Employees want special treatment.Solutions: Treat equally if possible.Show reasons for different treatment.


Real-life case: Why didnt I get the same chance?Poor-performing employee gets six-month probation period. Supervisor tracks week-to-week progress.Supervisor recommends termination before end of six months.Employee sues. Who won? Why?


No. 7: Fast firingEmployees who get fired feel as if they have nothing to lose.To make sure they get a fair shake consider:All sidesFactors surrounding the offenseHow weve handled other casesA second opinion


No. 8: Breach of confidentiality/privacyWhats confidential?Medical and health infoPerformance or behaviorDisciplinary actionOff-duty behavior/lifestyle unrelated to workExamples of mistakes.The rule for confidentiality.


SummarySupervisors are responsible for:ActionLack of actionThose who work for themTerminations are a big source of lawsuits.Your everyday example goes a long way toward avoiding lawsuits.


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Todays topic is called Eight Great Ways to Get Sued. Were of course referring to the common lawsuits filed by employees against supervisors in the workplace. And most importantly, well be talking about how to avoid being a victim of a common workplace lawsuit.With that in mind, today well learn about:When an action or lack of action by a supervisor can lead to a lawsuit. The most common types of employment lawsuits.The policies and steps that have helped others stay out of court.Working with your manager and HR to avoid lawsuits. Suggestions for the Speaker : To give trainees some perspective on the magnitude of the problem, consider asking them to guess how much employers paid out in in the most recent year for lawsuits and settlements for cases brought before the Equal Employment Opportunity Commission. To give them a context for guessing, you could begin by saying, It was more than $50 million. The correct answer is $420 million. And that doesnt include cases that were handled in court or settlements made out of court.*

Lets look at a real-life case involving a common workplace problem: employees who seem to complain a lot about everything.A few African American employees often lodged complaints about workplace conditions that had nothing to do with discrimination. One day, however, they went to their supervisor and complained they were being discriminated against and harassed by other employees because of race. The supervisor, tired of hearing them complain, told them to ignore the problem and learn to get along. When they made the same complaint again, he disciplined them for being uncooperative.They sued, claiming not only were they subjected to discrimination but also that the company ignored the problem. Who won? Why?Suggestions for the SpeakerAnswer: The employees won and were awarded $2.75 million when the employer agreed to a settlement to avoid a court battle. Reason: The supervisor didnt take immediate action to fix the problem, and made matters worse by punishing the employees for complaining. (EEOC v. Consolidated Freightways)*

The preceding case leads us to the first on our list of ways to get sued: ignoring a complaint of discrimination or harassment.As we saw in the case, its sometimes easy to ignore a complaint when it comes from someone whos made a lot of complaints in the past that proved to have no merit. You know the type I didnt get the promotion I deserved, Youre always picking on me, You never give me a break, and similar ones.Then, that person comes to you with a new complaint, one concerning harassment or discrimination, and we tend to think, Oh, thats just Joe complaining again. Its nothing. That can be a mistake, because the one time you ignore the complaint will be that time when the employee either has a valid complaint or at least believes theres a valid complaint.The solution: Investigate all complaints by:Asking the person to describe the complaint in writing Talking with witnesses or others involved and getting their written statements Reporting the complaint to HR for follow-upInforming the employee that the complaint is being investigated *

Number 2 on our list condoning a hostile workplace goes hand in hand with ignoring complaints, with a small but significant difference. That is, ignoring a complaint is passive; you make a mistake by doing nothing. But condoning a hostile workplace involves taking an active part in worsening the problem.Consider this example: An employee who has been injured at work later returns to take a light-duty job.As sometimes happens, other employees start to openly joke about the injured employees ability. All good, clean fun, right?The problem arises when the supervisor joins in, or even appears to approve by laughing or nodding.Often, those situations seem harmless enough, until the person whos the object of the ridicule starts to complain. Then you could have a lawsuit on your hands.To avoid the problem, avoid the appearance of condoning the ridicule and always take action if an employee makes a legitimate complaint.

Suggestions for the Speaker: Consider going over your organizations policies and procedures for investigating a hostile-workplace complaint. For instance: Who should the supervisor talk to first? What documentation do you require?*

The legal case we discussed earlier also points us to a third way to get sued: appearing to retaliate against an employee who complains.Note that we said appearing to retaliate. Often, you might take action that you dont think is retaliatory, but the employee believes it is.Some common instances of appearing to retaliate:SuspensionRefusing to promote or transferDenial of training opportunitiesAnd generally the most serious: firingThats not to say you cant take any of those actions against an employee who files a complaint. You can, but youre more likely to get sued if there appears to be a connection between the complaint and the action, as we saw in the real-life case we discussed. One way to avoid those problems is to make sure you have adequate documentation that backs up any action you take.Lets say, for instance, youve given an employee a written warning that one more unexcused absence will result in a suspension. Then, that employee files a discrimination complaint, and a day later misses work without an excuse. You can enforce the suspension because you have documentation of a warning, and its unrelated to the complaint.

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OK, we just mentioned documentation, and that leads us to number 4: failing to document problems or actions.Without a written record or history of problems with an employee, you at some point will find yourself in a he said/she said situation, where you have one view of the events and the employee has another. Youll try to use your version as proof or a basis to discipline the employee, and the employee will disagree and sometimes sue over it.So try to keep a written record of any incidents or issues involving employees, in particular:Warnings, in which you say, for instance, If you do that one more time, Ill have to take disciplinary action. Issue all such warnings in writing, ask the employee to sign to verify receipt, and keep a copy.Disciplinary actions, such as suspensions. In writing, tell the employee the reason for the action and what can happen if there are further violations. Place a copy in the employees personnel folder.

Suggestions for the Speaker: This might be a good time to go over your policies about warnings and disciplinary action: what should be written down; forms to be filled out, if any; who gets copies; how copies are filed, etc.*

Number 5 on our list how to get sued is what we will call making inappropriate comments.Theres a wide range of comments that can be classified as inappropriate such as remarks about race, age, religion, sex, sexual orientation and marital status are some common types. But be aware of two warnings:The source of the comments can be a supervisor or co-workers. The co-worker comments generally cause problems when an employee raises a complaint about the comments and the supervisor takes no action to stop them.Generally, inappropriate comments by themselves wont cause a lawsuit. But when the comments appear linked to treatment or behavior, that causes problems and lawsuits.For instance, lets say some workers or supervisors make comments to a pregnant co-worker that she should be staying home instead of working. That alone could get you sued, but lets also say that shes denied a promotion without good reason. Then there appears to be a link between the comments and the action, and thats when lawsuits get filed.The moral of the story: To avoid trouble altogether, avoid inappropriate comments, and discourage workers from making them.*

Lets look at another real-life legal case You laid me off because of my age. Jokingly, an employee in management commonly refers to older employees as those old coots.At some point later on, the company holds a layoff that includes employees of all age groups and races and both genders.The older employees cite the comments of the manager and sues for age discrimination, saying his comments and the layoff prove the companys hostile attitude about age.Who won the case? Why?

Suggestions for the Speaker Answer: The company won the case. A court ruled that although the comments were inappropriate, they werent linked to the layoff because employees of all ages were let go, not just older employees. NOTE: This may be a good time to point out that even though the company won, it still had to suffer the major expense of fighting a court battle, mainly because of inappropriate comments. (Rowan & Washington v. Lockheed Martin Systems.)*

Number 6 on our list is inconsistent decisions and actions. Well start off talking about decisions and actions regarding evaluations of performance or behavior, but were really talking about all types of decisions and actions. When we talk about inconsistency, especially regarding a poor appraisal, were referring to decisions that arent backed up by previous actions or documentation.Heres the typical scenario for something like that. Sam, an older employee, has had a performance drop over the last two years. However, Sams supervisor doesnt want to make waves, and gives Sam good performance appraisals, until the situation gets so bad that the supervisor cant take it anymore.Thats when the supervisor lowers the boom and gives Sam a bad appraisal, even threatening that Sam might be let go if he doesnt get up to speed.Whats Sams reaction? He thinks, Hey, I was doing fine for a couple of years, and now all of a sudden youre telling me Im a problem? There must be some hidden reason for all of this. Maybe its because Im older. And he sues.And all of that could have been avoided if the supervisor had taken the right steps early on and given Sam an honest appraisal of his work. But of course the supervisor wanted to be a good guy. Try to avoid this trap. If performance or behavior is below standards, document it and warn the employee early. It will save a lot of trouble later.

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As we said, there are other ways besides appraisals to get into hot water with inconsistent decisions. Lets consider two examples:One employee asks to leave work early or arrive late to attend a family function. The supervisor says OK. A week later, the supervisor denies the same request made by another employee who may be older or nonwhite. The second employee sees the denial as a form of discrimination and sues.An employee, using ill health or a family problem as a reason, asks if its OK to extend a deadline on a job. The supervisor agrees, but refuses to offer the same break to another nonwhite employee who cites the same reasons. The second employee believes the first got preferential treatment. The result: a lawsuit.The solutions:Try to treat employees equally.If you have good reasons for different treatment, inform employees of the reasons.

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To get a better handle on the idea of consistent decisions and treatment, lets look at a real-life case well call Why didnt I get the same chance?As a standard policy, a company uses a six-month probationary period for employees who get poor performance reviews. In other words, the employees have six months to improve or risk termination.A supervisor puts a poor-performing employee on a six-month probation, and tracks and documents the employees progress week-to-week.After about four months, the supervisor decides the employee isnt making a real effort to improve. The supervisor recommends ending the probation and terminating the employee.The employee, a woman, sues, arguing that others especially men got the full six months and that she wasnt treated equally. Who won? Why?

Suggestions for the SpeakerAnswer: The company won when a judge dismissed the case. The judge ruled that the supervisor had kept records detailing the employees progress or lack of it and those records served as justification for ending the usual probation period early and terminating the employee. Moral: Documentation makes the difference. (Nelson v. Charleston County Parks & Recreation Commission)*

As you may have noticed, a lot of the lawsuit-risky subjects weve discussed are related to firing. Employees are most likely to sue when fired because they feel they have nothing to lose. And thats why fast firing is number 7 on our list of ways to get sued.To prevent lawsuits over firing, we try to make sure employees feel as if theyre getting a fair shake. To ensure they feel that way, prior to any recommendation to fire, consider:All sides of the issue, not just an accusers or the employee whos at risk of being firedFactors surrounding the firing offense; for instance, has performance been hurt by temporary health problems?How weve handled the situation in other cases; remember what we said about consistencyRunning all findings and evidence by your supervisor or HR to get a second opinion; that ensures fairness and that judgment isnt influenced by emotion

Suggestions for the Speaker This might be a good time to review your policies and procedures regarding termination and what you expect from supervisors who are considering termination of a problem employee.*

Lawsuits over breaches of confidentiality or privacy usually get their start in an innocent mistake by a supervisor. Innocent mistake or not, a breach of confidentiality is number 8 and last on our list of ways to get sued.Whats confidential? Lets list some of the major areas:Medical or health informationInformation about performance or behaviorDetails regarding disciplinary actionsEmployees off-duty behavior or lifestyle that has no relevance to workWhat are some supervisor mistakes that mushroomed into lawsuits? Two examples are:A concerned co-worker asks about an absent employees health, and the supervisor replies: Shes being treated for kidney disease. The problem with that response? Its way too specific and provides details an employee probably wants kept confidential.During an informal chat, one supervisor tells another about an employees poor performance review and probation. The problem with that: Performance issues are supposed to be strictly between the supervisor and the employee. Leaking that information is a privacy violation.So, lets try to establish a rule about confidentiality: Discuss issues about employees only with your manager or someone in HR. Outside of that, keep it to yourself.

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Lets try to sum up the major points weve covered in this session.When it comes to lawsuit risks in the workplace, supervisors are responsible for action and lack of action, and youre also responsible for the actions of the people who work for you.Terminations are a big source of workplace lawsuits. When youre involved in a termination, make sure all aspects of it are buttoned up investigations, documentation and fair and equal treatment.Employees expect supervisors to set the example in the workplace. What you say or do in common everyday situations will go a long way toward setting the right mood to avoid lawsuits.

Eight Great Ways to Get Sued. Real-life case: ‘They complain about everything.’ After making...

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Transcript of Eight Great Ways to Get Sued. Real-life case: ‘They complain about everything.’ After making...