Law and Order

By Hannah Wallace August 31, 2007

To avoid costly employee lawsuits, Bradenton attorney Bill Curphey says you need to think like the Army Cavalry when they were settling the West. “The first thing they did was put up a fort to prevent a hostile attack,” says Curphey, a labor and employment law expert with William E. Curphey and Associates. “I can’t prevent an attack, but I can give you a whole bunch of logs to put you in a good defensive position.”

One of the most common ways “generals” expose themselves to liability is to favor certain employees over others. “It’s just human nature to like someone more than someone else,” says Curphey. “It may have nothing to do with race, creed or sex, but employees might not see it that way.” For example, if a white male boss lets another white male take longer lunches and miss mandatory meetings, other employees who don’t fit that description may say, “I can’t do that because I’m not a white male.”

Another kink in the armor is caused by the failure to document reviews, reprimands and incidents. “Everybody hates paperwork,” Curphey says. “But you have to write things as if a jury were reading it.”

Curphey offers the following checklist to begin building a “lawsuit-proof fort.”


1. Document everything, including reviews, oral warnings and disciplinary actions. If an employee is frequently late, write it down and have the employee acknowledge the reprimand, even if he or she disagrees with it. “Your documentation does the talking for you,” Curphey says. Detail circumstances. If an employee cuts his finger because of negligence, elaborate on what happened: “Employee ignored safety procedures, was disciplined, sent out a memo reminding employees of safety procedures.” “Write it as if a jury were going to read it,” Curphey says. “Explain the policy and how the employee was treated.”

2. Develop a progressive disciplinary procedure. First issue a verbal warning (again, document it), then a written reprimand, followed by a suspension, then termination. Don’t hold mistakes over an employee’s head forever; everyone should get a clean slate after a reasonable period. Provide written procedures for supervisors. The disciplinary process should be clear and employees should acknowledge it by signing off on it, usually during the hiring process. But a few situations are so egregious they require firing on the spot. “There was a case where a man attacked a woman--you’re not going to say, ‘This is a warning for sexual harassment,’” Curphey says.

3. Treat employees the same. Equal treatment is the issue employers struggle with the most. Most people are more comfortable with people who are similar to them, and there’s a tendency to give those people slack on rules. Employees, however, see this as discrimination. Studies of juries show they like a sense of fairness. “If policies are written and then followed, Curphey says, “you’re better protected."

4. Tell the truth when giving references. “It’s an urban myth that employers can be sued for defamation by telling the truth,” says Curphey. “I don’t know how this got started, but I have yet to find a case unless there was true defamation.” On the other hand, you could be held liable if you withhold information during a reference check and your former employee causes harm.

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