As most savvy employers realize, the number of
employment-based complaints, charges and lawsuits filed by current
or former employees have escalated rapidly in the past decade.
Human Resources experts have identified many factors that may
explain this increase, including an expansion of the employment
laws, a greater awareness by employees of their rights under the
law, and an increase in the number of attorneys who are willing to
represent disgruntled employees.
“Unfortunately, the bottom line for most companies is not
whether, but rather when you’ll be faced with a legal issue
involving an employee,” stated attorney Susan
McKenna of Jackson Lewis LLP, one of the country’s largest law
firms that exclusively represents management on workplace law
issues. “The important thing is to take a proactive,
preventive approach so you can minimize the likelihood of being
sued,” McKenna said.
McKenna identified three common reasons employers end up in
litigation. First, faced with tight budgets and economic
pressures, organizations fail to recognize the importance of
training their supervisors. Most employment claims involve a
front-line supervisor’s actions, either because the supervisor
failed to lead by example and engaged in misconduct, or the
supervisor didn’t know how to handle a workplace issue
appropriately. "Training your supervisors on basic employment
law concepts and how to be an effective leader is so important,”
McKenna emphasized.
Second, employers forget to conduct periodic reviews of their
personnel policies and practices to ensure that they are up-to-date
and in compliance with legal requirements. “Auditing the HR
and payroll functions in your organization has never been more
crucial,” McKenna stated. “For example, the Department of
Labor’s Wage and Hour Division has become more aggressive in
looking at whether exempt employees are properly classified and if
overtime is being calculated correctly.
Finally, carefully planning for the termination of an employee
is essential, for several reasons. “Studies have shown that
the single most important predictor of whether a fired employee
will sue is how he or she was treated in the termination
interview,” said McKenna. In addition, being clear, concise
and consistent in articulating the basis for a discharge can help
an employer defend the decision later.
Susan McKenna is a partner in the Orlando, Florida office of
Jackson Lewis LLP, one
of the largest management labor and employment law firms in the
country. Her practice encompasses all areas relating to the
counseling and representation of management on workplace law
issues, including representing clients in federal and state court
litigation.
