Employers routinely conduct annual, if not more frequent, audits of the financial well being of their business. Unfortunately, many employers are remiss when it comes to examining their own employment practices - an oversight that can have a significant impact on the bottom line. Maryland employers may be surprised to learn that, according to recent statistics, approximately 40% of the cases now filed in the United States District Court in Maryland are employment-based complaints. The recent Supreme Court decisions expanding liability for sexual harassment will almost certainly stimulate even more litigation. What are some of the things employers can do to minimize their exposure?
Review Your Employment Documents
One of the more galling surprises to employers occurs when a disgruntled employee is able to use to his advantage an outdated policy or other document that the employer has simply neglected to take out of circulation. All applications, interview questionnaires, offer letters, employment contracts, handbooks, and other employment-related materials should be reviewed on a regular basis to ensure that they comport with your business objectives and the law. Do they contain the appropriate equal employment opportunity statements and contract disclaimers? Does the company have a clear policy prohibiting sexual harassment that provides adequate channels through which to direct complaints? Have all inquires related to race, age, disability or other protected characteristics been removed from the employment application? If the answer to any of these questions is "no," now is the time take corrective action.
The Employee Handbook
An Employee Handbook is a very effective vehicle through which to inform employees of their rights and workplace obligations, and serves as a centralized source of work rules and procedures. A properly drafted Handbook will set the "tone" of the employment relationship, and gives the employer the opportunity to explain and disseminate policies relating to equal employment opportunity, "at-will" employment, discrimination, sexual harassment, discipline, termination, internet and email usage. As instructed by the Supreme Court, employers cannot avoid implementing policies and procedures addressing issues such as sexual harassment, and the Handbook is an ideal means by which to convey the message that sexual harassment and discrimination will not be tolerated. Of course, Handbooks are among the first items agencies and plaintiffs request in litigation, underscoring the necessity of ensuring that the Handbook is properly prepared and updated on a regular basis. Properly drafted, the Handbook is an employer's ally, and will assist in ensuring that workplace policies are published to all employees, and enforced in a uniform and consistent manner. If you have a Handbook, take care to ensure that it is properly updated. If you do not, consider adopting one.
Educate Your Supervisors
Even the most carefully crafted policy is of no benefit if supervisors do not properly administer and/or enforce it. All too often, supervisors are not particularly well informed with respect to the Company's policies. Employers are therefore well advised to conduct periodic training for supervisors on issues relating to interviewing, hiring, performance evaluations, discipline and termination. In view of the recent Supreme Court decisions, it is particularly important that employers also provide detailed training relating to discrimination and sexual harassment, including how to recognize, investigate, and resolve such issues.
Properly Documenting the File
Employers are often faced with the quandary of having to discipline a poorly performing employee, without the proper documentation in the file to substantiate the problem. The importance of properly documenting performance problems or other issues cannot be overstated. This does not mean filling an employee's personnel file with hastily drawn notes concerning trivial matters for the purpose of building a case. Rather, proper documentation should be prepared when disciplinary action is truly warranted for a workplace rule violation. A word of caution: such documentation should be drafted with the knowledge that it will be produced to opposing counsel in the event of litigation. In this regard, a good disciplinary memorandum should, at a minimum, contain a concise factual summary of the facts, the rule or policy violated, information regarding previous offenses or discipline, future expectations, and penalties for future violations.