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Posted: February 17, 2014

Five strategies to avoid common legal issues

Some workplace resolutions

Gillian McKean Bidgood

The start of a new year affords business owners a perfect opportunity to adopt some workplace resolutions that can help them avoid common employment law issues. These are five steps companies can consider:
 

1.         Document Performance Problems as They Happen

In employment litigation, documentation is key. Yet many business owners and managers do not document performance problems as they happen. Not only does this make it difficult to give concrete and helpful information when working to improve an employee’s performance, but a lack of documentation makes it more difficult to defend against an unemployment or other claim from an employee who was terminated. Employees often argue that performance problems that were not contemporaneously documented are really “no big deal” and that a business that takes action based on these types of problems has some sort of unlawful motivation. The best way to prevent these problems is to document performance problems when they happen.

2.         Don’t Blindly Rely on Reports from Others

When making decisions about employment and discipline, business owners and managers often mistakenly accept information from lower-level employees without honestly assessing whether the lower-level employee has a potential bias and verifying the information presented by the lower-level employee. If the lower-level employee had improper or discriminatory motivations, the business could be liable even if the person who ultimately made the decision had no discriminatory motivation. The best way to avoid these issues is to evaluate the information presented by the lower-level employee and the evidence supporting his or her recommendation. This strategy has the added benefit of allowing the business owner and the business’ attorney to evaluate what concrete evidence will be available to defend a potential challenge from the employee.

3.         Adopt and Follow Internet and Social Media Policies

The Internet and social media permeate our professional and personal lives. Some business owners turn a blind eye to the fact that employees may be using their work computers and e-mail addresses to surf the Internet and interact on social media. This strategy can lead to two problems. First, uncontrolled use of the Internet and social media can distract an employee from performing his or her duties properly. Second, an employee’s Internet and social media activity can unintentionally create liability for the business or negatively impact a business’s customers and business.

On the other end of the spectrum, some business owners become overly involved in monitoring their job candidate and employees’ Internet and social media activities. This strategy can also lead to two problems. First, a business can face liability to a job candidate or employee when it uses information on the Internet or social media to make employment and disciplinary decisions. Second, a business can face action from state and federal agencies when it requires access to electronic communications or uses information on the Internet or social media to make employment and disciplinary decisions.

The best way to avoid these legal issues is for a business to adopt acceptable use and social media policies that outline: expectations about on-the-job Internet and social media activities, who will control the business’ Internet and social media presence, and whether and how the business will monitor and use Internet and social media activities.

4.         Re-evaluate Mandatory Arbitration Provisions

For many years, mandatory arbitration clauses have been routinely included in many types of business agreements, including employment agreements. Business owners included these provisions because they hoped that arbitration would be faster and less expensive than litigation in court. Over the years, experience has shown that this is often not the case. Additionally, many of the rules followed by arbitration associations require the employer to pay the fees and other charges of the arbitrator. Accordingly, businesses and business owners should reconsider requiring arbitration in most circumstances.

5.         Stop Recycling Releases

Business owners and their attorneys often use the same severance agreement or release for every employee. However, every situation is different, and some legal claims can be released only if the agreement includes special legally mandated language. Accordingly, businesses should consult an employment law expert when entering a severance agreement or release.

Defending against employee claims can be expensive and can disrupt the business and life of a business owner. However, adopting these five strategies can help businesses avoid common mistakes and help avoid workplace legal issues.
 

Gillian McKean Bidgood is a shareholder who practices employment law in the Denver office of the national law firm Polsinelli PC, gbidgood@polsinelli.com, (303) 583-8245.

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