Protection from employee lawsuits begins with careful hiring

by Becky Gillette

Published: January 1,2007

Setting the scene: An advertisement for a law firm engaged in employment law shows a wolf in sheep’s clothing. The headline of the ad says, “Employees’ motives aren’t always warm and fuzzy.”

Employment lawsuits pose a serious threat to your business, says Bert Ehrhardt, an attorney who specializes in labor law with Lewis Fisher Henderson Claxton and Mulroy LLP, Jackson.

Ehrhardt said companies can help safeguard against employment lawsuits first by making sure they are getting the best possible workforce in the beginning.
Be sure to thoroughly check out résumés, and look for gaps. That gap might be a job where the employee ended up suing their employer. The applicant doesn’t put that job on their application or résumé, and the employer doesn’t find out about it until problems develop and the employee is once again suing his or her employer.

“You never know about the false résumés or falsified applications until they have sued you,” Ehrhardt said. “But by and large, most employees are good people. If they are doing a good job, they want to know. If they don’t do a good job, they want to know. It is important for companies to treat employees right so the company can expect employees to treat the company right. Most employers we work with over a long period of time report more positive employee-employer relationships. When they learn what is at stake, it is wonderful. You get a great work force that understands what is expected of them and understands when they are not meeting expectations.”

Rick Hammond, who heads the Jackson office of The Kullman Firm, which specializes in labor law in Mississippi, Louisiana and Alabama, said employee lawsuits are getting to be more and more of an issue.

“Twenty years ago if an employee was terminated, they went their separate way, found another job, and that was the end of the story in a lot of cases,” Hammond said. “In more recent years, it seems most terminations don’t end with the termination. You have unemployment claims or discrimination charges or something of that nature that follows the termination.”

There is no ironclad guarantee to avoid a discrimination charge or lawsuit. Hammond said anyone with the right telephone number can call the Equal Opportunity Commission. Or, they can hire an attorney.

It is very important that companies put themselves in a position to be able to successfully defend a lawsuit. Hammond said that comes down to a couple of things:

• Have supervisors well trained on how they are supposed to handle performance issues, discipline issues and attendance issues. Supervisors are the front line dealing with employees, and how they treat employees is going to impact whether the employee has any claim for mistreatment or discrimination. Supervisors should be knowledgeable on different employment laws and trained how to handle certain situations.

• Treat employees consistently. If an employee violates a rule whether in a company’s plant in Tupelo or Jackson, they should be treated the same. If, instead, the employee is terminated at one job site and an employee doing the same thing at another site only gets a written reprimand, that opens the company to possible charges of gender or racial discrimination.

“If you are consistent in how you handle discipline and attendance issues, you won’t open yourself to scrutiny because you are treating all employees the same regardless of age, gender or any other protected characteristic,” Hammond said.

It is advisable to have policies in written form, and to document when employees are warned about a behavior.

“Certainly having written policies distributed to employees or posted on bulletin boards is very helpful for a company,” Hammond said.

However, Hammond said it is important in Mississippi to reference that the handbook is not a contract. The handbook should be a general guide for how the company will usually operate in certain situations.

“A handbook can be a double-edged sword,” Hammond said. “If it doesn’t have a disclaimer that it is not a contract, then if the company deviates in any way from the handbook, an employee could make the argument the employer has breached a contract with the employee. The employers could have liability for a breach of contract claim.”

That is significant for employers from a legal standpoint because it is another type of lawsuit the company could face rather than a typical discrimination lawsuit in federal court. Hammond said a breach of contract lawsuit can be filed in state court, and typically speaking it is more difficult for an employer to get a case dismissed in state court without going through a trial. Federal courts are more receptive to considering motions for dismissal than state courts.

“Employees filing in state court may stand a better chance of having their case heard by a jury instead of being dismissed by a motion in front of a judge before any trial occurs,” he said.

While sensitivity training can be helpful especially if there are problems with racial strife or a problem with a glass ceiling for female employees, Hammond doesn’t think every employer should provide sensitivity training. He advises it is far more important to makes sure supervisors are trained on different employment laws, and trained on company policies.

For example, if an employee comes to a supervisor and says she has migraine headaches that can be very severe at times, that might trigger obligations under the Family and Medical Leave Act to determine if leave is warranted.

“Supervisors are those who get the questions many times,” Hammond said. “The supervisors don’t need to know all the nuances of the law, but should have enough working knowledge so they can recognize issues and involve human resources in those issues.”

Hammond also believes communication is a critical component of good work force relations. Employees may not always agree with everything their employer is doing. If the company is communicating with their employees, explaining certain policies and any major changes, employees still may not agree. But if communication is taking place, at least employees will be aware of what is going on and feel they have been considered.

Contact MBJ contributing writer Becky Gillette at bgillette@bellsouth.net.

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