Section III: How to avoid being named in litigation. Prepare yourself and HR colleagues to avoid litigation and assess HR practices for legal liability

Based on an increased number of claims, court support for punishing individuals as well as employers engaged in employee wrongdoing, and legislation allowing for individuals to be tried for statutory violations, the scary truth is that HR and operational managers face a greater likelihood of defending themselves against an employment claim. Knowledge is power and can assist any supervisory employee in making decisions, communicating information, or advising others on issues that give rise to personal liability in employment claims.

• Know the law. Ignorance is no defense. On too many occasions, HR managers being deposed in preparation for trial are quizzed on their experience and qualifications to implement HR decisions that have legal implications, such as making FMLA leave determinations or administering pay changes. Often admitting that they do not feel they have had enough experience or education to make unilateral decisions, they are nonetheless sought out by management to “rubber stamp” such decisions. Keeping up with the laws and seeking reference resources for challenging employee relations issues is one sure way to minimize legal exposure.
   
• Follow the law and not strictly marching orders. Follow your instinct, research decisions that do not seem quite right, and question the illegal orders or suggestions of superiors or colleagues. Do not fall victim to a larger scheme of unlawful activity. One small indiscretion might seem okay, but one turns into a string of inappropriate behaviors and opens up the possibility of being reviewed and legally responsible. Ask questions and seek clarification before engaging in speculative or questionable behavior involving employees.
   
• Know your organizational policies and procedures and implement them consistently. Ensure the human resources policies are in step with the law and best practices. Conduct regular HR audits to ensure legal compliance and internal organizational application and consistency. As the courts point out, it is not good enough to simply have a policy; it must be communicated, supported, and used appropriately. Violating internal organizational policies or implementing policies inconsistently raises immediate concern for personal liability by the violator and is one of the leading causes for employers choosing not to indemnify and provide legal counsel to a manager.
   
• Know how to communicate with employees (truthfully, dignified and confidentially). Act professionally, honestly, and confidentially in every interaction with employees. Feelings of distrust, disloyalty and breaches in confidentiality lead many employees to question the treatment they received at work and seek remedy through complaints and litigation. Your contact with employees is critical to their overall view of the organization. Moreover, your honest and dignified treatment may result in diffusing difficult situations and averting legal action altogether.
   
• Know how to respond to authorities. By not obstructing justice or otherwise interfering with or providing false information to an authority, you will not only be able to rest easier at night, but you will also diminish the need to worry about civil liability and criminal punishment for abuses toward authorities and their processes.
   
• Know when to get help. The best practitioner knows when to seek out resources and references to assist in decision making and policy adherence. Even the most credentialed and experienced HR practitioners seek counsel and reference materials when making important decisions regarding FMLA matters, pay issues, policy changes, and so on. Do not be a martyr and attempt to address all concerns “in house.” Collaboration and a paper trail help to diffuse responsibility and minimize legal exposure for the individual. Many employers also purchase Employment Practices Liability Insurance (EPLI) to protect the organization against employment claim damages; however, as stated in The HR Specialist – National Institute of Business Management Special Edition, employers should be cautious of insurance providers quietly dropping or cutting back on some areas of coverage, such as defamation or problems stemming from the internet. Nonetheless, EPLI insurance is security blanket for businesses concerned about employment claims.

In summary, while the clear trend indicates that individual HR managers, operational managers, and supervisors are being sued along with their employer for participation in employment decisions, awareness, preparedness, and education can minimize individual exposure.

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 BIOGRAPHY

Denise Kay is a Senior Consultant with Employment Practices Solutions, Inc., a nationwide consulting firm dedicated to assisting employers with employee relations issues. Denise is a licensed attorney in the State of Colorado and is certified through the Society for Human Resource Management (SHRM) as a Senior Professional in Human Resources (SPHR). In addition, she is a trained mediator and is an instructor at the Keller Graduate School of Management of DeVry University teaching business law, employment law and negotiation skills courses.   Denise serves on the SHRM Colorado State Council as the Governmental Affairs Director and as a committee member of the ASIS/SHRM partnership to develop a National Standard for Workplace Violence Prevention and Intervention. Further, she is the Community Coordinator for the Colorado Bar Association’s Domestic Violence: Make It Your Business Program educating employers on the impact of violence in the workplace.

Employment Practices Solutions, Inc., is the premier nationwide employee relations resource. Our MISSION is to help you prevent and correct employment claims and enhance employee relations. Our STRENGTH is our team of experienced employment attorney-consultants. Our GOAL is your peace of mind.

Denise Kay, Esq., SPHR
Senior Consultant
Employment Practices Solutions, Inc.
Denver, CO
Contact Information:
Direct (303) 329-7875
Corporate office (800)727-2766
dkay@EPSpros.com
www.EPSpros.com
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