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Presented by: Oliver Yee
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Transcript of Presented by: Oliver Yee
12 Steps to Avoiding Liability
California State University (CSU) 2013 Fitting the Pieces Together Conference
Presented by: Oliver Yee
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Avoiding Liability:
Part 1: Take preventative steps to avoid a lawsuit.
Part 2: Invest necessary time and resources to defend a lawsuit.
12 Steps to Avoiding Liability
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Step 1
Follow the Rules
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Step 1: Follow the Rules
What are the Rules?• Employer-Employee Relations Ordinance or
Resolutions• Memorandum of Understanding • Municipal Code• Personnel or Civil Service Rules• Laws/Statutes• Charter• Department Rules
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Step 1: Follow the Rules
Audit Your Rules,
Policies, Etc.
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Step 1: Follow the Rules
Your Failure to Follow
the Rules Will Become
Their Primary Exhibit
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Step 2
Train and Re-Train
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Step 2: Train & Re-Train
Establish a Training Procedure• Orient and Educate New Employees about
Rules and Regulations and Expectations• Re-Educate When Necessary• Have Everyone Attend Training Including
Managers• Rules Are Useless If Employers and
Employees Don’t Know What They Are
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Step 2: Train & Re-Train
Training is Important
• Provides a Defense in Lawsuits
• Maintains Consistency within the Agency
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Step 3
Surround Yourself With Competent People
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Step 3: Surround Yourself With Competent People
• Identify Intelligent, Dedicated and Loyal Employees
• Reduce Liability by Avoiding, Improving or Removing Poor Employees
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Step 3: Surround Yourself With Competent People
1. Invest Necessary Time to Hire the Best Employees By:– establishing job-related criteria
– experience-based questions
2. Prepare for Interviews
3. Conduct Thorough Background Investigations– Do reference checks
4. Don’t Let Personal Relationships Cloud Hiring Decisions
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Step 3: Surround Yourself With Competent People
Terminate During Probationary Period if in Doubt
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Step 4
Accountability for All!
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Step 4: Accountability for All
• Utilize Performance Evaluations to Honestly Assess Performance
• Advise Employees of Performance Expectations
• Be Honest and Accurate
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Step 4: Accountability for All
• Keep Accurate Records of Compliance With Rules
• Document Staff Meetings With Employees
• Document One on One Meetings
• Keep a Supervisor’s File
• Empower Your HR Department
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Step 4: Accountability for All
• Enforce Rules By Disciplining Employees Who Violate Them
• Supervisors and/or Managers Must Set Proper Examples and Be Subject to Discipline Too
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Step 5:
Be Honest, Consistent and Fair
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Step 5: Be Honest, Consistent and Fair
• Be Honest• Don’t Create False Expectations
–a.k.a. “No good deed goes unpunished”• Don’t Let Poor Performance Slide
• No Surprises
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Step 5: Be Honest, Consistent and Fair
• Be Consistent• Apply Rules Consistently• Timeliness is a Component of Consistency
– Do Performance Evaluations
– Do Not Miss Deadlines
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Step 5: Be Honest, Consistent and Fair
• Be Fair
• Update Job Descriptions to Reflect Actual Duties
• Revise Outdated Personnel Rules
• Deviation from Rules May Be Seen as Unfair or Discriminatory
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Step 6
Communicate
Communicate
Communicate
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Step 6: Communicate, Communicate, Communicate
• Communicate Daily
• Communicate Positive and Negative
• Communicate With Knowledge
• Communicate Clearly
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Step 6: Communicate, Communicate, Communicate
• Communicate Rules and Expectations
• Be Clear in Your Communications• Avoid “Passing in the Hallway”
Communications• Avoid “Stray” Remarks
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Step 6: Communicate, Communicate, Communicate
• Document Your Communications• Document/Record-Keeping of Staff
Meetings/Communications• Document Communications in
Supervisor’s File
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Step 6: Communicate, Communicate, Communicate
Listen
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Step 6: Communicate, Communicate, Communicate
• Keep Comments to External Parties Focused on Theme
• Be Careful re: Personnel and Labor Issues
• Know if You Are an Authorized Speaker
• Keep Your Principals Informed About What You Hear
Press / Public Comments:
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Step 7
Pick Your
Battles Wisely
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Step 7: Pick Your Battles Wisely
• Every Decision has Ramifications
• In Assessing Whether to “Fight” a Battle, Think About Broad and Long-Term Implications
• Don’t Sweat the Small Stuff
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Step 7: Pick Your Battles Wisely
• Evaluate Options and Weigh the Risks1. What are the Monetary Implications?2. What will the Affect be on Employees
and/or Employee’s Association?3. What will the Affect be on
Management?
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Step 7: Pick Your Battles Wisely
Disciplinary Action• Consider Likelihood of Success• Management Decisions Are Reversed
Usually Due to:– Inconsistent enforcement– Wrong rule applied– New rule; insufficient publicity– Unreasonable rule– Unreasonable penalty
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Step 8
Investigate Before It’s Too Late
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Step 8: Investigate Before It’s Too Late
1. Investigate Promptly
2. Follow Your Own Rules
3. Have a Complaint Procedure
4. An Investigation may be Required by Law
• Harassment
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Step 8: Investigate Before It’s Too Late
• Investigations on TrialPromptThoroughEffective
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Step 9
Due Process Matters
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Step 9: Due Process Matters
Essential Components (Skelly)
• Written Notice of Charges• Facts and Documents Upon
Which Charges are Based• Opportunity to Respond
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Step 9: Due Process Matters
• Understand Your Role in the Post-Disciplinary Due Process Hearing
• What is Your Role/Council/Board’s Role in Final Decision
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Step 10
Everything is “Discoverable”
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Step 10: Everything is “Discoverable”
Understand the Public Records Act and Brown Act
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Step 10: Everything is “Discoverable”
• Imagine Everything You Write Will Be Used as an Exhibit
• Nothing is Confidential
• This Includes E-mails and Text Messages Too! Be Careful What You Write!
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Step 11
Litigate to Win
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Step 11: Litigate to Win
• Cooperate With Attorney
• Importance of Defending Lawsuits
• Understand and Accept That Winning Lawsuits Costs Money and Requires Expenditure of Staff Time
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Step 11: Litigate to Win
KNOW HOW TO TESTIFYKNOW HOW TO TESTIFY
Prepare
Be Honest
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Step 12
Don’t Take It Personally
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Step 12: Don’t Take It Personally
• Individual Liability is Often Used By Plaintiff’s Counsel as a Scare Tactic and as Leverage in Settlement
• Individuals Can Be Subject to Punitive Damages
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Step 12: Don’t Take It Personally
Do NOT Retaliate
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Questions?
Oliver YeeAttorney | Los Angeles Office
310.981.2044 | [email protected]
www.lcwlegal.com/Oliver-Yee