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By Larry Corman
Although “you’re fired” has
become part of the entertainment world’s vernacular, terminating employees
remains a very serious business. Even in a state like Florida — where the
law purportedly allows employers to fire employees “at will” (that is, for
any or even no reason) — businesses can incur substantial expenses and be
exposed to significant potential or actual liability if appropriate
termination procedures and policies are not in place.
For example, Florida and federal statutes prohibit employers with 15 or more
employees from discriminating against prospective and existing employees for
various immutable characteristics, including race, religion, national
origin, gender, age, and disability. In addition, employees can often assert
that they are entitled to protection under “whistleblower” statutes by
claiming they opposed or refused to participate in practices that violated
rules, regulations, or laws. Thus, even in an at-will state like Florida,
when employers fire employees, it is not unusual for terminated workers to
claim they were fired in violation of their legal rights.
It is often said (probably because it is true) that in America, no one can
prevent another person from filing a lawsuit. However, there are several
important policies employers can implement to enhance their legal defenses
if sued in the future.
Comply With Applicable Laws
This should be obvious. If you have a diverse workforce and
comply with applicable laws, you can significantly reduce the likelihood of
claims being successfully pursued against your business. The law, however,
is very complicated, and you may inadvertently fail to comply with legal
requirements that you did not even know existed. Among the areas where
employers often are surprised to learn they have legal exposure are wage and
hour laws regarding overtime pay and compliance with the Americans With
Disabilities Act’s “reasonable accommodations” standards.
Establish Company Policies and Procedures
All employers should have written policies and procedures to insure that
employee work issues are promptly brought to the employer’s attention and
properly investigated, documented, and resolved. Many employers collect
their policies and procedures in an employee handbook. Regardless of the
form in which they exist, written policies and procedures must be
communicated to employees to provide clear notice of the policies and the
steps that should be taken if the employee has concerns that need to be
brought to the employer’s attention. Records should be maintained that
establish that all employees have received and reviewed the employer’s
policies.
Document Shortcomings in Performance
Preparing and maintaining accurate records regarding employee performance,
including shortcomings, can be very time consuming. The pressures of the
business day and the need to take care of the customer often push employment
related paperwork to the bottom of the employer’s to-do list. But
maintaining contemporaneously created records establishing weaknesses in
employee performance and confirming that the employer notified the employee
about the issue can greatly assist an employer defending against a
subsequent discrimination or whistleblower complaint. Providing employees
with regular reviews that objectively evaluate the workers’ abilities to
perform the essential functions of their positions not only gives employers
a vehicle to communicate with workers about their strengths and weaknesses,
but can subsequently help substantiate that legitimate business reasons
support an employer’s decision to deny a promotion or raise or to demote or
terminate an employee.
Enforce
Company Rules
The existence of a policy by itself is not a legal defense to an
employee claim. When confronted with a situation that potentially or
actually violates an employee’s legal rights, an employer is expected by the
law to reasonably respond and appropriately address the issue. At a minimum
this initially requires the employer to thoroughly investigate the complaint
and document the steps taken and the information obtained. Ideally the
employer implements a reasonable response that solves the problem so the
issue does not have to be addressed again. Unfortunately not all
employer-imposed remedies, whether or not they are reasonable, resolve all
employee-raised complaints and issues. Unresolved employee complaints
regarding employment conditions all too often can become the subject of
administrative agency complaints and subsequently litigated matters.
Don’t Retaliate
Sometimes when employees are aware that complaints about their job
performance exist, they may raise discrimination complaints against the
pertinent supervisor. By raising a discrimination issue, the employee can
subsequently claim that any adverse action the employer takes against him or
her was retaliation because the employee made a discrimination complaint.
There have been reported cases where employees have prevailed in employment
lawsuits when the employee could not prove unlawful discrimination but did
establish that the employer illegally retaliated against the employee for
raising the discrimination issue. Once an employee makes an internal
discrimination complaint, an employer must be certain that any grounds on
which any subsequent adverse employment action will be based are
sufficiently compelling and documented so that a subsequent retaliation
claim can be defended.
Independent Investigations Work
Employers should make sure that the person conducting the investigation and
making the final decisions regarding employee complaints is not the person
about whom the employee is complaining. Employers who conduct an independent
investigation of the employee’s complaints, including meeting with the
employee and any witnesses identified by the employee, before deciding what
action should be taken can raise an affirmative defense to a subsequent
discrimination complaint. If, however, the employer solely relies on input
from the person who is the subject of an employee complaint for information
on which an employment decision will be based, the employer can be held
liable if a fact finder subsequently rules that the person who provided the
information was motivated by illegal discriminatory factors.
Utilize Legal Counsel
There are numerous other actions employers can take to enhance risk
management and reduce employment-liability exposure. Having legal counsel
review existing policies and procedures and participating in supervisor
training may help employers avoid or reduce the substantial costs typically
incurred in dealing with employment discrimination complaints.
Larry Corman,
(P.A.), is a partner with Hodgson Russ LLP in Boca Raton, Florida. |
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