The Sound Practice of 'Happy Law'
Legal experts share 4 tips for heading off nuisance lawsuits by ex-employees.
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If you’ve ever dreaded the possibility of dealing with a disgruntled and litigious former employee, one that repeatedly hauls you before the Madison Equal Opportunities Commission, the Wisconsin Equal Rights Division, or the federal Equal Employment Opportunities Commission on suspect employment discrimination claims, you’re not alone.
It’s a very realistic scenario, especially if you haven’t taken care of business on the front end. Fortunately, there are ways to avoid that frustrating position, and they involve a little preventive medicine. The key to fighting off nuisance complaints is to establish and execute sound employment practices, starting with the process of making good hires and consistently documenting the steps you’ve taken to bring out the employee’s best.
We spoke to two local attorneys, Dan Kaplan, a partner with Foley & Lardner, and Thomas Godar, a shareholder with Whyte Hirschboeck Dudek, who offered four tips on how to avoid hot water when an employment relationship ends.
“This isn’t an individual, one-off issue,” Godar said. “Yes, you can somehow contain it, potentially, at the end of the process, but getting the right people on board, orienting them properly, making early decisions if they are not going to work out, all of that is part of a much longer process to avoid the kind of lawsuits where they take good laws that were meant to be a shield of protection and they make them into a sword in order to take on the employer.”
1. Hire well
This counsel is admittedly obvious, sort of like buy low and sell high, but also a challenge to execute. From the false claims on résumés to the “name, rank, and serial number” approach of many former employers, it can be difficult to carry out a thorough background check.
Sound hiring practices begin with identifying job candidates who have the proper experience and background, and conducting a background check that also takes into account how long they have worked for other employers. “Let’s ask them to provide a copy of the employment file, or at least a copy of their last evaluation because people can make up all sorts of self-serving information in their interviews,” Godar said.
Employers make bad hires for a number of reasons, from the simple lack of due diligence to the pressure of filling a position to take pressure off an overworked, under-duress staff. “Sometimes, the human resources department is getting a lot of pressure from the folks on the line, the supervisors, because they need somebody now,” Godar said. “So they might move more quickly than they should.”
Sometimes employers are unwilling to take those extra steps, whether it’s initial drug and alcohol screening, or whether it’s following up on references. They are fearful that even if they try to conduct reference checks, former employers will stonewall by simply confirming dates of employment and title.
There are strategies to get around that. According to Godar, prospective employers can ask about whether job candidates had regular evaluations from their employers. They also can ask whether an ex-employer provided written discipline indicating whether the employee met expectations. “Ex-employees can always request their former employer to provide that,” Godar noted. “That might give you an insight into the answer a person might provide.”
Godar also advised employers to talk to former supervisors if they can, which offers greater potential to go in depth and gain more insights than contacting human resource people, who are trained to only give name, rank, or serial number.