THE TOP TEN REASONS FOR EMPLOYMENT
RELATED LAWSUITS
Brian C. Ussery, EsquireThompson, Sizemore, Gonzalez & Hearing, P.A.
201 North Franklin StreetSuite 1600
Tampa, Florida 33602(813) 273-0050
INTRODUCTION
A disgruntled applicant, employee, or former employee can bring a lawsuit against your company at any time. A vigilant employer can avoid many of these suits, and effectively defend those that are filed, if it understands the factors that drive an employee to the courthouse and proactively reduces the bases for liability.
Reason 1 –
An applicant believes he or she should have been
hired.
A vigilant employer will . . .
Establish objective qualifications for available positions (job descriptions, job postings, etc.)
Establish a consistent application/interview process
Update or remove advertisements and postings once position has been filled
Establish “expiration dates” for applications/resumes
TRAIN YOUR INTERVIEWERS!!!!
Reason 2 –
An employee believes he or she was unfairly
disciplined.
A vigilant employer will . . .
Publish expectations for employee conduct
Establish a process for progressive discipline
Adopt a process to ensure consistent application of discipline
Establish means for documentation and notice to the employee
Train your supervisors!!!!
Reason 3 –
An employee believes he or she was harassed.
A vigilant employer will . . .
Consider the “Rule of Mom” Adopt a policy forbidding harassment and
discrimination of any kind Establish a mechanism for employees to
report suspected harassment Act promptly to respond to complaints –
NEVER IGNORE THEM OR UNDERESTIMATE THEM – the goal is to end the inappropriate conduct
Train your supervisors!!!!
Reason 4 –
An employee believes he or she was subjected to
discrimination.
A vigilant employer will . . . Understand the protected classes (Sex/Gender;
Race; Color; National Origin; Religion; Age; Disability)
Consider “other” protected classes (sexual orientation; military status; union affiliation; bankruptcy; immigration status; workers’ compensation, FMLA leave, etc.)
Understand the concepts of “intentional discrimination” versus “unintentional discrimination”
Demand consistency in the enforcement of expectations and policies
Train your supervisors!!!!
Reason 5 –
An employee believes he or she was subjected to
retaliation.
A vigilant employer will . . .
Understand the dangers of a retaliation claim
Understand the concepts of “statutorily protected activity” and “whistleblowing”
Exercise due diligence- legitimate reason for adverse action?- can we prove legitimate reason?- can we prove others treated same way?
Train your supervisors!!!!
Reason 6 –
An employee believes he or she was not provided accommodation for
disability.
A vigilant employer will . . .
Understand the definition of “disability” Not seek to identify disabled
applicants/employees Establish procedures for an employee to
request accommodation Communicate following a request Understand the interaction between
workers’ compensation, FMLA, ADA. Train your supervisors!!!!
Reason 7 –
An employee believes he or she was terminated due to
illness or injury.
A vigilant employer will . . .
Establish and publish sick time/leave policies
Identify its obligations under FMLA, if any
Identify its employees’ rights under FMLA, if any
Refrain from interfering with those rights, or from retaliating against an employee who exercises his or her rights
Train your supervisors!!!!
Reason 8 –
A former employee believes he or she was defamed
following the separation of employment.
A vigilant employer will . . .
Establish procedures for responding to job reference requests.
Consider providing only factual information concerning dates of employment, position held, salary/hourly rate, etc.
Keep confidential information confidential (social security numbers, drug test results, etc.)
Train your supervisors!!!!
Reason 9 –
A union is attempting to organize the workplace.
A vigilant employer will . . . Understand the dangers involved in
unionization Recognize that it has more freedoms than
restrictions in combating unionization (T.I.P.S)
Be proactive in educating employees Be proactive in alleviating the pressure
points a union may use to sell or justify unionization to the employees, and communicating with employees about issues that cannot be addressed due to business/financial concerns
Train Supervisors to be the eyes and ears of the company
Reason 10 –
A competitor believes the company has interfered with
its business or stolen its employees.
A vigilant employer will . . .
Identify whether applicants/employees have prior employment agreements prohibiting competitive employment
Consider the benefits of using those agreements with its own employees
If you don’t learn anything else, always remember . . .
Every applicant, employee, and former employee represents a potential lawsuit against your company.
Consistency is the key to avoiding liability Published and effective policies are the key
to maintaining consistency Documentation is key to proving
consistency Your company = your supervisors. Educate
them. Demand vigilance, loyalty, and accountability from them.
Brian C. Ussery, EsquireThompson, Sizemore, Gonzalez &
Hearing, P.A.201 North Franklin Street, Suite 1600
Tampa, Florida 33602
(813) 273-0050 (phone)(813) 273-0072 (fax)