2018 New Year’s Resolutions For Lowering The Risk Of Employment Litigation

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By Kenneth M. Wentz, Principal and Office Litigation Manager, Jackson Lewis, for “Employment Trial Report”

Shared by Deb Franklin, Esq., VP HR Solutions

When Jackson Lewis litigation attorneys looked back at cases, trials, and verdicts from the past year, we observed how companies can make themselves less of a target for claims. Below are some New Year’s resolutions that can help lower the risk of employment litigation:

  • Train managers. Train employees. Keep a record of the training, including who attended. Review EEO laws and company policies. Use up-to-date and accurate materials you can show a government agency, plaintiff’s attorney, or jury.
  • Evaluate whether to contest unemployment benefits on a case-by-case basis. When an unemployment decision is appealed – by the company or former employee – have an attorney represent the company in the appeal. For many plaintiff’s attorneys, an appeal is an opportunity to cross-examine witnesses under oath and build a case on an unprepared, and unrepresented, company witness.
  • Engage in the interactive process. Do not automatically discharge an employee if he or she cannot return to work after FMLA leave expires. Do not automatically terminate the employee if he or she is unable to perform the essential functions of the job. Engage in a discussion with the employee. Document that discussion. Even if the result will be the same – discharge – the discussion and documentation may be all that is needed to avoid or win a claim.
  • Use offer letters. Set out prerequisites to employment such as background check, drug test, signing of non-compete, pre-employment physical, and so on. Do not guarantee terms of employment. Ensure the offer letter informs the employee that he or she is “at will.”
  • Have a handbook. Employees expect it. Government agencies ask for it. Ensure the handbook has appropriate legal updates. Confirm that it reflects company practices. Lay out the ground rules for your company and follow them.
  • Review all non-compete agreements used by your company for enforceability in the state in which they are being used.

These and other actions involve little or no cost, take little time to implement, and can help set a company’s agenda for 2018. These are lessons other companies learned the hard way over the past year (taught by plaintiff’s attorneys, government agencies, and industry competitors).

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