HR Legal Issues, Are You Prepared

As most savvy employers realize, the number of employment-based complaints, charges and lawsuits filed by current or former employees have escalated rapidly in the past decade. Human Resources experts have identified many factors that may explain this increase, including an expansion of the employment laws, a greater awareness by employees of their rights under the law, and an increase in the number of attorneys who are willing to represent disgruntled employees.

“Unfortunately, the bottom line for most companies is not whether but rather when you’ll be faced with a legal issue involving an employee,” stated attorney Susan McKenna of Jackson Lewis LLP, one of the country’s largest law firms that exclusively represents management on workplace law issues. “The important thing is to take a proactive, preventive approach so you can minimize the likelihood of being sued,” McKenna said.

McKenna identified three common reasons employers end up in litigation. First, faced with tight budgets and economic pressures, organizations fail to recognize the importance of training their supervisors. Most employment claims involve a front-line supervisor’s actions, either because the supervisor failed to lead by example and engaged in misconduct, or the supervisor didn’t know how to handle a workplace issue appropriately. "Training your supervisors on basic employment law concepts and how to be an effective leader is so important,” McKenna emphasized.

Second, employers forget to conduct periodic reviews of their personnel policies and practices to ensure that they are up-to-date and in compliance with legal requirements. “Auditing the HR and payroll functions in your organization has never been more crucial,” McKenna stated. “For example, the Department of Labor’s Wage and Hour Division has become more aggressive in looking at whether exempt employees are properly classified and if overtime is being calculated correctly. The new regulations issued last year make this the perfect time to get an expert in to see if you’re in compliance. Believe me, many employers are not.”

Finally, carefully planning for the termination of an employee is essential, for several reasons. “Studies have shown that the single most important predictor of whether a fired employee will sue is how he or she was treated in the termination interview,” said McKenna. In addition, being clear, concise and consistent in articulating the basis for a discharge can help an employer defend the decision later.

McKenna was a featured speaker at WORKFORCE CENTRAL FLORIDA’S State of the Workforce Summit in 2005, speaking on “Avoiding Employment Law Problems.” Susan McKenna is a partner in the Orlando, Florida office of Jackson Lewis LLP, one of the largest management labor and employment law firms in the country. Her practice encompasses all areas relating to the counseling and representation of management on workplace law issues, including representing clients in federal and state court litigation.