What common employment mistakes lead to employers getting sued by employees’ lawyers?

John Gallagher, the plaintiffs’ lawyer, has a nice piece up at TLNT about web surfing. He wonders whether firing for it is a good thing.

As he pointed out, the problem is that pretty much everyone “surfs” or whatever at work to some extent. If you fire someone for it, who can say your decision isn’t a pretext for a decision based on a forbidden reason? From the plaintiff’s lawyer’s viewpoint, few tools are more deadly in employment litigation than an employer firing someone on the grounds of a rule that no one pays attention to.

Of course, some employers do the obvious; “sleep with me or get fired”. But what do good employers do that lay the groundwork for trouble? Well, five mistakes make plaintiffs’ lawyers happy even when they show up in a well-run shop:

Your Rules and Punishment Are Proportional and Fair

First, think hard before creating a no-exceptions, sacrosanct rule forbidding all use of the web at work. The very best, most productive people on your payroll surf too, not to mention the CEO. But who will that wind up stinging? The boss who just sold some stock over his laptop? The older worker who looks at the weather so he can sail his boat on weekends? A rule against only extreme, excessive, illegal or immoral use would work better. Zero tolerance is wrong precisely because it leaves no room for common sense. That’s what makes absolutist policies so dangerous: They eventually fail because they’re unjust. Ask any school that suspended a five year-old boy for sexual harassment after he kissed a classmate. All I mean is that making an unfair decision can come back to haunt you. Make sure your rules and punishment are proportional and fair, or you will wind up filling the coffers of the nearest plaintiffs’ lawyer. The newspaper article about what you did would be very, very embarrassing.

Maybe that’s why my tolerance for zero tolerance is itself zero.

Second, if someone acted badly, broke the rules, or didn’t do the job, admit it. When firing that person, don’t lie, even to avoid a scene. One heart-sinking mistake an employer can make is justifying a firing by calling it a layoff. It takes real guts to tell a valued employee why he’s being fired, and it’s good to recognize that. It’s simple decency and honesty to tell someone why. Lying only does harm; since everyone knows people lie about this, it makes a firing look questionable even when you did the right thing. And remember, a plaintiffs’ lawyer can then claim the real reason you fired the person was illegal.

The only time it’s okay to call a firing a job elimination is if you agree with the employee that that’s what it is. The key is to write it down. But tell them the true cause of the firing.

Third, some owners also fall into trouble by making assumptions. They believe that as long as everyone else in the industry violates a law, they’re fine. What everyone does or what you’ve always done can be wrong. The sad news is that a lot of employers are breaking the law. I don’t believe most employers do this deliberately. But overtime law is so complex. Litigation is booming. Class actions and collective lawsuits for overtime compensation have been filed under federal law and state wage statutes.

Proactive is the way to go; every employer in the business should do an audit of their policies. You will likely find mistakes, but you will have a chance to change things that are off base now. Before someone else tells a judge what you did.

Discrimination Is Illegal No Matter Who Suffers from It

Beware that the fourth mistake could be discriminating against whites and men. You could think no one with half a brain does that. Most owners are plain fair with all groups, but they can make mistakes simply because they don’t pay attention. One of the big misconceptions employers are prey to is thinking that “affirmative action” or government policy ever requires giving someone preference. Discrimination is illegal no matter who suffers from it.

Frankly, all employers are in a straitjacket these days, especially after the Supreme Court’s awful ruling in Ricci. What makes an employer safe is taking decisions based on performance. I know this is stating the obvious, but when you need to hire and to fire, hire the best person and get rid of the weakest. Don’t even try to explain a decision by pointing to race or sex unless you’re in the odd case of being under a consent decree ordering an employer to correct past discrimination.

Finally, if you think in-house harassment and discrimination training for managers is just a lot of touchy-feely blather, you may wind up writing hefty checks to correct that mistake. Even conscientious owners who send their key employees to classes often miss a bet by forgetting the bosses one level down. Let’s say that the boss had no bias, but the supervisor he relied on for the firing decision was a bigot. It’s called the ”cat’s paw” theory of liability. Supervisors are bosses too in that what they do can harm an employer, or save them. To do that, they have to know what they’re doing.

If you don’t, they could get you into trouble.