I have been asked by more than one frustrated California employer how to avoid or reduce employment lawsuits. It is not an easy question to answer as there are many variables that go into generating employment law claims. However, in no particular order, what follows is a list of strategies and steps to consider to implement an effective claim reduction plan:
- Document, document, document: Documenting employee issues and the employer’s response is a big part of disproving claims. Indeed, a consistent practice of documenting issues can even be used to indicate that something did not happen through the lack of documentation.
- Arbitration agreements: Having arbitration agreements with employees improves the efficiency of dispute resolution and generally reduces the impact and frequency of claims.
- Employee handbook: Having a good employee handbook that is updated each year is a big part of reducing claims. The law changes frequently; make sure you change with it.
- Employment forms and posters: Make sure the forms you use are up to date and that required posters and pamphlets are current. These need to be updated every year or so.
- Know the handbook: You would be surprised how many employers do not follow their own policies. It is a lot to ask of California employers to be aware of all the nuances of California law, but reading and applying the handbook is a good place to start.
- Human resources training: Having a good human resources director is a good start, but that person needs to stay on top of legal developments and strategies.
- Compliance audits: Payroll practices, overtime and bonus payments, commission practices and agreements, salaries and pay rates, hiring practices, background checks, exemptions from overtime, record keeping, I-9 forms, retirement plans, leave practices, disability issues, OSHA compliance, information security, and HIPAA compliance are all areas that can be examined by professionals with expertise.
- Background checks: While an employer’s options in terms of requiring a post-offer, pre-employment credit check are limited by the duties of the position, nothing prohibits employers from doing other types of background searches, including reviewing litigation records and publicly available Internet postings. Employers are required to provide a copy of any document obtained which is relied upon for an employment decision. In addition, there are specific disclosures and communications required for use of criminal records.
- Performance reviews: Having useful performance reviews is a big part of effectively managing employees, which is a key component to reducing claims. Performance reviews should be checked for accuracy and completeness by someone other than the reviewing supervisor. Criteria used for the review should be updated periodically. Further, whenever possible, the criteria should emphasize objective rather than subjective standards. Input should be sought from other supervisors to make sure that a consensus is reached.
- Disciplinary actions: Discipline needs to be consistent, fair and reasonable. Always document any disciplinary issue.
- Review the file: Before any termination decision is finalized, the personnel file of that person should be reviewed to make sure that there is a sufficient basis for the termination and that there is nothing in the file that would cause concern.
- Effective investigations: Make sure that at least human resources is trained on workplace investigation standards and practices.
- Avoid delay: In many ways, delay or tolerance is an employer’s enemy. I cannot tell you how many times I have heard a plaintiff’s lawyer claim that the fact that an employer put up with an issue for a lengthy period of time meant that the issue was not a problem. Do not put off dealing with violations of policies or standards.
- Monitor morale: Employee morale can be a good indication of a potential for claims. The worse the morale, the more likely that claims will be filed. If there is a morale problem, find out what it is and take steps to deal with it.
- Practice follow-up: Once any problem is dealt with, check on it with decreasing frequency over time and document the effort. This will make sure that the issue has been solved and will also serve to prove your efforts as a good and conscientious employer.
- Train supervisors: Supervisors need to know how to handle not just discrimination and harassment issues, but other employee management issues as well. Performance reviews, discipline, dealing with absences and leaves issues, and knowing when there might be a disability issue are important parts of every supervisor’s job. Supervisors also must know how to take a complaint and when to report issues to human resources.
- Consider severance agreements: Severance agreements can be a powerful tool to prevent claims, but you must know when to use them.
- Monitor computer use: Employers should have effective policies limiting the use of computers and making clear that employees should have no expectation of privacy when using computers. These policies must be enforced on a regular basis. Put simply, you can learn a lot from the use or misuse of a company computer.
- Check expenses: Make sure that you have an effective policy on all types of employee expenses and that you are reimbursing employees for all expenses and verifying such expenses. Cell phones, automobiles, computers and supplies or equipment are all expense traps for employers that can add up to a big problem if not handled properly.
- Make it easy to address complaints: Having an open door policy is one thing; appreciating and enforcing it is quite another. Complaints represent an opportunity to deal with a problem or potential problem. Employers should therefore welcome the opportunity to take a complaint. More importantly, the attitude that complaints are welcome should permeate the workplace.
In sum, all California employers are to some extent vulnerable to employment lawsuits, whether frivolous or not. The truth is that California, which has more employment laws than any other state, has created a playing field that is just not fair to California employers. However, taking these steps can help to reduce claims and to minimize the impact of claims when they come.
This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2019. All rights reserved; yep, all of them.
If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.
- Partner
Kelly Scott is a partner and head of the firm’s Employment Law Department.
Mr. Scott is also a member of the Litigation Department and has practiced law since 1987. His areas of practice include representation of employers in all ...
Subscribe
Recent Posts
- New Cal/OSHA Indoor Heat Standards Require New Prevention Measures and Written Prevention Plan | By: Joanne Warriner
- California Bans All Plastic Bags at Grocery Stores | By: Pooja S. Nair
- FTC’s Nationwide Ban on Non-Compete Agreements Stopped by Federal Court Ruling | By: Cate A. Veeneman
- Can the IRS Obtain a Receiver to Help Collect Taxes Owed? | By: Peter Davidson
- Severing Unconscionable Terms in Employment Arbitration Agreements | By: Jared W. Slater
- Can You Collaterally Attack a Receiver’s Appointment?
- Changes to PAGA Create Opportunities for Employers to Minimize Penalties | By: Tanner Hosfield
- Overbroad Employment Arbitration Agreements Will Not Be Enforced in California | By: Jared W. Slater
- LA Al Fresco Deadline Extended | By: Pooja S. Nair
- The Battle for Supremacy: Federal Arbitration Act v. California Arbitration Act | By: Jared W. Slater
Blogs
Contributors
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- March 2019
- February 2019
- January 2019
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014