Do Not Forget to Document

2021 HR Lawsuits: Three Critical Mistakes

Work has changed in many significant ways over the past decade. The workforce is more diverse. Working from home is now common practice in many offices. But one thing that has not changed is the need for the human resources department to avoid lawsuits. Lawsuits may arise due to intentional bad actions on the part of managers, or unintentional violations which are misconstrued. Regardless, managers must avoid both the appearance of impropriety as well as deliberate violations during the hiring, evaluation, and termination process.

Hiring: Don’t Be Chatty, Be Professional

Being professional means phrasing employment advertisements in a way that is not intentionally discriminatory. Requested education and experience should directly relate to the needs of the advertised position. For example, demanding that someone can lift fifty pounds as a requirement for a desk job could be viewed as discriminatory against physically disabled persons. Avoiding questions during the interview process that could unintentionally reveal race, religion, ethnicity, disability, pregnancy status, or other protected characteristics of a potential employee is also critical (2020 top 11 actions, 2020). Sometimes employers who wish to build rapport and engage in icebreaking conversations with employees can mistakenly fall into a minefield (for example, asking the prospective employee if they have children, or if the candidate had a good Christmas).

Evaluation: Don’t Forget to Document

Often, employers who wish to be positive and not discourage employees may not include the full range of reasons the employee is unsatisfactory in his or her performance. Not only does this undercut the effectiveness of performance reviews, but if the employee must eventually be terminated, the employee may claim he or she was discriminated against because of his or her protected status, pointing to a lack of negative comments on performance reviews (2020 top 11 actions, 2020). If the employer makes accommodations for the employee, such as allowing for the employee to work at home during an extended illness, this should also be documented to show that the employer takes reasonable steps to accommodate employee needs.

Managers should also be briefed in how to communicate criticism in a positive and respectful fashion, without making references to protected employee characteristics (for example, saying to a mother with children, “I know it’s been hard to give full attention to your work because of the fact the kids are home on winter break”). (5 best practices, 2015). Employers should also avoid favoritism, including going out and informally socializing with small groups of employees in a way that might be seen as disadvantaging other groups, such as going out with male employees to a sports bar or holding a faith-based optional leadership seminar (5 best practices, 2015).

Not Taking All Complaints Seriously