Common Sense Tips to Keep Your Company Out of the Courtroom

A couple of months ago, the South Texas College of Law held its annual, highly-regarded Employment Law Conference.  Three lawyers who represent employees talked about common mistakes they see employers make, and also what facts persuade them to bring lawsuits.  These plaintiffs’ lawyers talk to many employees about unfair treatment at work, but only a few of these discussions actually turn into lawsuits.  Here is what they said about employer behavior that gets companies sued:

1.   Most employees go to see plaintiffs’ lawyers because they feel they have been treated unfairly, not illegally.  But even though these employees may have no legal claim, a smart plaintiffs’ lawyer will ask them about other issues unrelated to unfair treatment, like how they are paid.  And it is much more likely that a company is violating a wage and hour law than an EEO law.

Tip:  Keep your employees and ex-employees out of plaintiffs’ lawyers’ offices.  And this can help by treating them fairly, consistently, and kindly, even at the moment of termination.

2.    A bad termination process can screw up an otherwise great discipline process.  Plaintiffs’ lawyers ask specific questions about the termination process to potential clients.  They look for termination reasons that don’t match what happened.  Or terminations that are based on facts and investigations that occur AFTER the employee is terminated.

Tip:  Take your time in terminating an employee, and make sure you have the ACTUAL reason for discharge well-stated in termination documentation.

3.    Plaintiffs’ lawyers are sensitive to how companies investigate employee complaints.  They find it suspicious when companies don’t talk to the people whom the complaining employee identifies as important witnesses.  Or when the company concludes no wrongdoing occurred, despite bad facts.

Tip: Make sure that you have closed all loops in an investigation, which includes talking to the person accused of wrongdoing, and talking to everyone (within reason) identified by other key witnesses.  Keep notes and records of these conversations.

4.    Watch out for inconsistent policy decisions.  These plaintiffs’ lawyers love to ask managers in their deposition what policy the employee violated that led to termination.  Many times, the manager can’t fully explain the policy.  Or the terminated employee points to others who were not fired for violating the same policy, a key type of evidence in discrimination and retaliation cases.

Tip:  Read any policy before you fire or discipline someone for breaking it.  Sometimes it doesn’t say what you think it says.  And check to see how the company has treated others for similar violations.

5.    FLSA suits are still strong.  A wage and hour lawyer talked about his favorite types of overtime lawsuits these days:

–  Off the clock work.  Time spent preparing for work pre- and post-shift, like logging on to a computer to be ready to start work at 8 a.m. sharp.

–  Travel time.  The rules for travel pay are complex.  In particular, time spent traveling between jobs during the day is regularly compensable.

–  Tip pools.  It’s easy to break the rules.

–  Independent contractors.  Often they meet the “employee” test and are due overtime.

– Assistant managers & financial services employees.  These employees may be non-exempt.

Tip:  Don’t put off that FLSA self-audit.

And take to heart the plaintiffs’ lawyers’ parting words:  “We’re teaching companies to follow the law …. One lawsuit at a time.”

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