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Avoiding Employment Lawsuits

Over my rather lengthy career as a Management-Oriented Labor/Employment Lawyer (started November 6, 1972 with the Walgreen Company), I have seen a drastic and very unfortunate change in the Employer-Employee relationship. Over the last ten (10) years, there has been an over 500% increase in Employee Litigation. You do not need a Lawyer to tell you that Employment Litigation is expensive, both in the financial commitment and the time-productivity loss commitment. Here are a few of my suggestions for trying to eliminate or limit Employee Litigation:

1. Make Complaint Reporting Easier. The earlier you learn about an Employee issue or complaint, the better it is for you. No one can fix a problem that they do not know exists. Make your Complaint Reporting multifaceted, where an individual can file a complaint with their immediate Supervisor and/or Human Resources Personnel and/or a Complaint Line. If an individual Employee has various ways to complain about an issue available to them and does not use any of them, this is a big chip for the defense in any Litigation.

2. Be Timely in Your Response. If you get a problem or complaint, you must respond. Simply documenting the fact that there was a complaint is not the solution. A company must act and must address the problem with the complaining Employee.

3. Document Disciplinary Issues. If you want to discourage Litigation, make sure that you clearly document every Disciplinary Event involving your Employees. Whether it be job performance related, attendance related, or rule violation related, there is nothing sweeter for a Defense Lawyer than to have a pile of Disciplinary Records to question a Complainant about Disciplinary Records during their Deposition or before a Jury.

4. Every Employee in Your Organization Must Be Treated the Same. A consistent application of rules is an absolute necessity to maintain morale and assure that there is no favoritism.

5. Train Your First Line Supervisors. There is no organization that can survive without competent First Line Supervision. It is an absolute necessity that these individuals handle the day-to-day issues and assure the productivity of the Employee Complement. Make sure that the First Line Supervisors are accurately trained to spot issues, to be active in resolving those issues and, most importantly, to be consistent.

6. Create Specialties. Have someone in your organization responsible for application of Federal and State Legal Requirement (i.e. FMLA, ADA, etc.). You certainly can use outside Counsel for these issues, but that, in and of itself, may become costly. It is better for you to have someone on staff who can handle these day-to-day issues quickly and efficiently.

7. Employee Handbook - An Effective Tool or Stumbling Block. An Employee Handbook should clearly identify the rules and regulations that apply in your organization and clearly establish, at least in the State of Illinois, the Employment At Will Concept. However, it is important that the Employee Handbook is not written as a Legal Treatise or Legal Document. It should be easy to read and understand by members of Management, First Line Supervision and Employees. Simply stated, follow the KISS System - Keep It Simple Stupid.

8. Termination Question. I am always surprised when I counsel companies about Employee Litigation and Termination Issues. Remember, you as the Employer do not have to terminate an individual immediately. You can wait twenty-four (24) or forty-eight (48) hours to complete a thorough and documented investigation. Terminating an individual immediately because of emotional pressure can lead to heartache later.

9. Severance Agreements. Over my career, the use of Severance Agreements to resolve Employee Separations has increased dramatically. Of course, with the recent new Tax Law and the provisions of Section 162(q) - that businesses can no longer deduct for settlements of sexual abuse/sexual harassment if the Severance Agreements contains a Nondisclosure Clause, may impact Severance Agreement use in the future. In my opinion, they are still valuable, but must be tailored to each situation.

10. The Golden Rule. All of us at one time during our educational progression were advised of the "golden rule", be it by parents or teachers. The "golden rule" is - treat others as you want to be treated, with dignity and respect. That "golden rule" still applies. Regardless of the situation, always treat individuals with dignity and respect, even in situations of termination. You avoid more problems by being dignified and respectful than by belittling or humiliating anyone.

While these rules may not save all of you from Employment Litigation, they may help make the day-to-day operations of your companies better.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at [email protected]

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