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Employment law 101: The six most common manager errors

(May 28, 2010) - Lawsuits by employees against their employers have grown tremendously in the past decade. Sometimes those lawsuits have merit, sometimes they don't. But, either way, those lawsuits cost time and money to fight-money that is better spent on product development, training and raises.

Even worse, some laws-including federal overtime law and the Family and Medical Leave Act-allow employees to sue their supervisors directly, meaning a manager's personal bank account could be at stake.

Most lawsuits are not triggered by great injustices. Instead, simple management mistakes and perceived slights start the snowball of discontent rolling downhill toward the courtroom.

Here are 6 of the biggest manager mistakes that harm an organization's credibility in court. Use these points as a checklist to shore up your personal employment-law defense:

1. Interview errors
It may be easy to answer the question, "Why did you hire that person?" But managers often run into trouble when they have to answer, "Why did you reject certain other candidates?"

That's because rejection decisions typically aren't well-documented and the decision-maker may not recall the reasons later.

During interviews, stay away from any question that doesn't focus on this central issue: How well would this person perform the job he or she has applied for? Never ask about age, race, marital status, children, day care plans, religion, health status or political affiliation.

2. Inflated appraisals
Performance reviews are one of the most important forms of documentation, yet managers sometimes inflate the ratings for various reasons. If a manager later tries to cite "poor performance" for that same person's termination or demotion, those overly positive appraisals create a heap of credibility concerns.
Be direct, honest and consistent.

3. Being rude, mean-spirited
An organization can have the best case in the world, but if the key supervisor comes across as rude, insensitive and mean, the attorney's job of selling the case to the jury will be much harder.

Use the golden rule in handling staff.

4. Shrugging off complaints
Turning a blind eye to any employees' complaints of unfairness or perceived illegal actions is a guaranteed credibility buster. Comments like "I'm not a baby sitter" or "Boys will be boys" will hurt employee morale and jeopardize your standing in court.

5. Sloppy Documentation
Most discrimination cases aren't won with "smoking gun" evidence. They're proven circumstantially, often through documents or statements made by managers. Documents, particularly e-mail, can help the employee show discriminatory intent. The lesson: Always speak and write as if your comments will be held up to a jury some day.

But it's also possible to overdocument, especially when it occurs right before a firing. Courts will be able to see through a rush of disciplinary actions cited in the days before a termination.

Be consistent in documenting negative and positive performance and behavior of employees. It's best to keep a "performance log" for each employee, regularly making notes in each file.

6. Firing employees too fast
Managers who fire without first trying to improve the worker's performance will appear insensitive and potentially discriminatory in court. Conversely, managers who try to improve things before resorting to firing will stand a better chance of avoiding a lawsuit.

Remember: Juries will expect that employers stay abreast of developments in employment law.

Employment Law 101 for Supervisors is the perfect way to help supervisors understand the implications of their actions and how those actions might inadvertently be supporting lawsuits against your organization - and possibly against supervisors or you personally! Access a copy today.

Colleen Gildea

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