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Essential Guide to Avoiding EPL Claims

Tue, 29 Oct 2013 11:01:50 -0700

Recruitment and Hiring -  All employers should strive for a "clean" hire, that is, one done purely on the basis of job requirements, without considering the applicant's membership in a protected group, either pro or con.

Employment Contracts and Handbooks -  All employees have some form of employment contract. The employer offers the job, the employee accepts and gets paid for doing it (offer, acceptance, and consideration – the basic elements of a contract). Written contracts or offer letters that set forth the terms and conditions for employment, including a statement that employment is at will, are preferable because they minimize the potential for disagreement regarding employer/employee expectations.

Performance Evaluation - Regular performance reviews (annually or more frequently) are an excellent defense in virtually all employment suits. They demonstrate that the treatment of the employee was based on job requirements, not on membership in a protected class.

Wage and Hour -  Adopt a specific policy against working off the clock and communicate it to all employees in addition to including it in the employee handbook. This policy should contain a complaint mechanism and assurances of nonretaliation for employees who register complaints.

Privacy -  Give employees a zone of privacy, and do not invade that zone except for legitimate business reasons and by means reasonably related to the ends. For example, what employees do on their own time or in their homes is generally not reasonably related to job requirements. In the workplace, what an employee does during breaks or at lunchtime may deserve the protection of privacy. This is not absolute, since behavior during off time that adversely affects job performance does become relevant to the employer.

Investigating Complaints -  Upon notification of an employee complaint, the person designated by the employer must conduct a timely, thorough and impartial investigation of the complaint. Often the complaining employee will feel intimidated or uncomfortable in lodging a complaint, especially if the complaint is being lodged against a senior manager or a person perceived to be in a position of power and authority.

Termination  -  The following comments relate to dismissal with or without cause and do not deal with complex employment agreements that might include arbitration requirements, post-termination requirements such as retirement or disability benefits, or restrictive covenants.

Employment Practices Audit -  The key to preventing employment suits is consistency. Audit all employment practice areas: employment applications, re-employment inquiries, interview forms, standard-form job-offer letters, legally required postings, employee codes of conduct, standard-form employment contracts, OSHA compliance, training programs, termination procedures, separation and severance agreements, and all other  policies and procedures designed to minimize the risk of unlawful employment practice claims.

Disclaimer: This article is from a PC360 story excerpted from the book Employment Practices Liability: a Guide to Risk Exposures and Coverage and designed to provide accurate and authoritative information in regard to the subject matter covered. It is offered with the understanding that the writer is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

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