The Pareto principle posits that 80% of the effects of something come from 20% of the causes. As applied to employers, and more particularly human resource professionals, 80% of personnel issues are typically caused by 20% of the work force. Employing a few best practices when working with these individuals, as well as recognizing when it’s time to call your attorney, can prevent personnel issues from evolving into employment liability claims.
Employers can minimize or avoid most employment liability claims by:
- Implementing a well-written, concise employee handbook that clearly sets forth company policies and procedures;
- Providing frequent supervisor and manager training on managing employee expectations and productivity;
- Conducting prompt, timely, complete, and impartial investigations of all good faith employee complaints;
- Documenting employment-related communications and corrective action carefully and appropriately; and
- Taking corrective action fairly, consistently, and appropriately when necessary.
In most cases, following these best practices will minimize employment-related lawsuits; however, there will still be times when you should call your employment law attorney. Why?
Why to call your attorney
First, you are expected to know the myriad of federal, state, and local laws that affect the employment relationship. An employer’s lack of knowledge is not a “get out of jail free card.” Second, due to the unequal power differential between the employer and the employee, the employer is subject to greater scrutiny. Third, when civil or administrative claims are filed against you, your experienced employment law attorney can advise you on the applicable law and associated court or administrative processes that must be followed to defend the claim. Finally, calling your employment law attorney when personnel issues arise is a good business practice. Your employment law attorney knows the nuances of each applicable law and can help you strategize a strong defensive position from the beginning, taking into account all required obligations. In other words, you wouldn’t hire a butcher to do heart surgery just because he or she is good with a knife.
When to call your attorney
When should you call your employment law attorney? The following situations justify a call, but please keep in mind that this list is not exhaustive:
- When there is any situation that could involve handcuffs, i.e. criminal acts. These could include immigration violations (such as the Form I-9), misuse of computer networks (such as with child pornography), and workplace violence.
- When you are served with an administrative complaint from the following: the Bureau of Labor and Industries (BOLI), the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor, the Occupational Safety and Health Administration (OSHA), the National Labor Relations Board (NLRB), or others.
- When you are served with a lawsuit alleging employment-related claims.
- When an employee complains of mistreatment in the workplace or complains of a “hostile work environment.”
- When an employee complains that you are breaking federal, state, or local laws.
- When an employee complains about not being paid overtime.
- When you want to use employment agreements, severance agreements, non-competition agreements, or confidentiality and non-solicitation agreements.
- When there are incidences of serious workplace injuries, death, or workplace violence.
- When you are considering terminating employment for performance failures or reduction of workforce.
There are other times when calling your employment law attorney also makes good sense. For example, after the conclusion of a state-wide legislative session, call your attorney to discuss changes in employment-related laws or new enactments that would affect the employment relationship. This will allow you sufficient time to evaluate the laws’ effect, modify employee policies and procedures accordingly, and train supervisors and managers. Another situation would be when you learn of court holdings that you may feel change the law or affect your policies and procedures.
Finally, your employment law attorney is a great resource to provide training for supervisors, managers, and executives. Such training should include an annual session on harassment and discrimination avoidance based on the established company policies. Other recommended training could include new supervisors and managers, documenting the employment relationship (discipline and corrective behavior processes), and lawful recruitment practices.
In implementing best employment practices you minimize your exposure to large employment liability claims. This, in turn, reduces the overall cost of employment-related legal expenses. In cases where claims are unavoidable, employment law attorneys can serve as critical management tools when used effectively. Develop a proactive relationship with your employment law attorney that keeps you current on legal issues and allows you to handle 80% of your organization’s employment personnel issues yourself, so you’ll only need to call them for harder issues that other 20% of the time.
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