How to Separate How to Separate Employee RelationshipsEmployee Relationships

Avoiding Getting Sued in the Process

Presented by:

Araceli Martin

Human Resources Generalist

Everybody Could Be A PlaintiffEverybody Could Be A Plaintiff(Federal Laws)(Federal Laws)

Age Race Color Gender Religion National Origin Veteran Status Disability Union Activity

Pension Polygraph Plant Closing FMLA Public Policy Retaliation Sexual Orientation Marital Status Weight

Everybody Could Be A PlaintiffEverybody Could Be A Plaintiff(Federal Laws)(Federal Laws)

Political Affiliation Genetic Trait or Test Tobacco Use Recreational Activity Consumable Product Whistleblower Restrictive Covenants Contract

Contracts – THE ABC’sContracts – THE ABC’s

Express or Implied Written or Verbal Bilateral or Unilateral Individual or Collectively Bargained

What makes a person become a What makes a person become a plaintiff?plaintiff?

“Its Not My Fault”… or “I’m Okay, But I have

some serious questions about you!”

Lotto Fever “Who Wants to Be a

Millionaire?” “Lifestyles of the Rich

and Famous”

What makes a person become a What makes a person become a plaintiff?plaintiff?

Why do employers lose lawsuits?Why do employers lose lawsuits?

Some of them are GUILTY! Some of them do not get GOOD LEGAL

ADVICE! Jurors are predisposed to favor employees. Jurors expect the result to be FAIR – if it

does not seem fair, jurors will “right the wrong.”

Who is the audience?Who is the audience?

Upper Management Other Employees The potential plaintiff’s

attorney The Jury (3,5 or 7 years

from today).

The “Due Process” ProcessThe “Due Process” Process

Notice Opportunity to be heard Deliberation Decision

The Key?The Key?

Notice the RulesNotice the Rules

Employee Handbook Job Description Written Warning or

Prior Discipline Written Policies Job Evaluations Common Sense

Notice The ChangesNotice The Changes

Brief, Concise Statement of the Issue Set a Time in the Future to Meet and Discuss

Why? Time to Confess Time to Explain Time to Reflect

Interviews to Investigate Possible Interviews to Investigate Possible Employee MisconductEmployee Misconduct

Reasonable Required Employer Goals

To Learn To Consider To Discipline (where

appropriate) To Reduce exposure to

legal liability

Post – Termination Investigations

Risks of Investigating Poorly (or Risks of Investigating Poorly (or Not At All)Not At All)

Legal Risks Lower Court Decisions

Mechanics of an Investigative Mechanics of an Investigative InterviewInterview

The Investigator Using Attorneys as Investigators One Other Manager (the Note taker) Another Employee (?) The Statement Not a Trial Not an Opportunity to Confront Witnesses

The Three “Key” QuestionsThe Three “Key” Questions

“Is there anything else going on here of which I should be aware of?”

“Is there anyone else I should speak to or anything else I should review before I make a decision (recommendation)?”

“What would you do if you were me?”

DeliberationDeliberation

Time To Reflect Time To Investigate

This Employee Other Employees Past Practice

Time To Consult Time to Get Legal

Advice

The DecisionThe Decision

Treating The Employee With Dignity and Respect

Face-To-face (if possible) Be Honest Be ON GUARD Letter – Suspension – Discharge (“LSD”)

Observations from Industrial Observations from Industrial Psychology LiteraturePsychology Literature

Observed Employer Challenges Investigating Similar Allegations of Misconduct

with Comparable Vigor. Imposing Discipline Fairly.

Recommendations: Formal Procedures

Crime and PunishmentCrime and Punishment

The Investigation The Paperwork The Decision Know Your Audiences

Top Ten Ways to Avoid Becoming Top Ten Ways to Avoid Becoming a Defendanta Defendant

10. Never hire or fire hastily 9. Put Expectations in writing. 8. Communicate Expectations to Employees 7. Train Managers & Supervisors 6. Obtain prompt legal advice 5. Treat every employee as a potential plaintiff. 4. Play to your audience 3. Take your time 2. Follow the “DUE PROCESS” process 1. Document, Document, Document!!!