Spring 2017

How to Proactively Reduce Employment Litigation By Leonard J. Dietzen, III, Rumberger, Kirk, Caldwell, FPCA General Counsel

After representing law enforcement agencies for more than twenty-five years, I have observed that it is no longer a question of whether your agency might face a lawsuit but when a current or former employee might sue. Fortunately, you can take steps to prevent some lawsuits and reduce the cost of others.

Hiring Practices Examine applications carefully. Studies show that applicants exaggerate the amount of their prior experience and education. Many will use friends as work references. Taking the time to verify education, experience and references is a step you can take now to prevent potential lawsuits later. Chances are an applicant who is willing to lie on an application will be trouble down the road.

Ask the right questions during interviews. Employment laws can be complex. Some, such as Title VII and the ADA, even dictate which questions you can’t ask of an applicant. Training your hiring personnel in interview procedures is another step which can prevent potential lawsuits. Lawsuits from applicants do happen so save copies of all your applications to preserve your defenses.

Employee Manual Employment laws change frequently so agencies need to review and update their manuals annually. Employ- ers who keep their policies and procedures current can avoid self-inflicted lawsuits. After you have updated your manual, hire an experienced labor lawyer to review the manual and ensure that all changes to the laws have been covered in the updated policies. Then, train your management team on key policy changes and distribute the manual to employees. Employees should be required to sign and date a statement verifying that they have read the manual and have had an opportunity to ask questions about it.

A clearly written manual can help resolve employee disputes before they become lawsuits. Provide employ- ees with steps for filing an internal complaint so that management can address disputes in house. Post anti- discrimination policies prominently so that all employees know how and to whom to make a complaint. In- vestigate each complaint thoroughly and report the results of the investigation to the employee. Include a strong prohibition against retaliation so that employees are treated fairly when they do make a complaint. Retaliation lawsuits are on the rise and are expensive to defend. Most employment laws have anti-retaliatory provisions which allow for the recovery of plaintiff’s attorney fees. Often the underlying com- plaint lacks merit but undertrained management may overreact and take action against the employee who filed the complaint.

Document, Document, Document Whenever an employee fails to follow agency policies, written documentation is necessary. The record should include the following information: the facts of the incident, what policy or policies the employee vio- lated, the consequences for the current violation and any potential consequences for a repeat violation. Ver- bal discipline is hard to demonstrate later if an employee violates policies again. Juries want to see prior dis- cipline in writing. However, you should not raise disciplinary issues for the first time on an employee’s annu- al performance appraisal. Timely documentation is the key to correcting behavior and creating a clean record.

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