Law: Don’t be mean-spirited

Employers get sued nearly every day by former employees. Here is a trio of the biggest personnel mistakes made by employers, and some tips on defusing these potential time bombs before they result in poor workplace morale - or explode into a costly employment lawsuit.

1. Failing to properly document performance problems

Because supervisors hate to write up employees or state something unflattering on a performance review, this often is the biggest hurdle for an employer defending an employment lawsuit. A well-documented personnel file with written, corrective action is priceless either before a civil rights agency or in the courtroom. Attorneys representing employees know this, too - the plaintiff's first exhibit at trial is recent performance evaluations showing good or excellent performance.

If those reviews are inflated to reflect 'positive performance,” the employee will argue that his termination must have been illegal or discriminatory.

Also, do not pad employees' files. As one court wrote: 'We find it surprising that suddenly, after the plaintiff filed her EEOC (Equal Employment Opportunity Commission) complaint, problems with her work surfaced.”

Your documentation does not have to be formal or perfectly written, but it does have to be accurate, understandable, and contemporaneous. Many employment cases - especially those involving retaliation claims - hinge on timing issues alone.

Do not be mean-spirited, either - picture your corrective memo blown up in front of a jury.

2. Creating a perception of favoritism

Are you playing favorites? Employees become disillusioned when they believe that favoritism is driving a manager's decision-making.

When that happens, they will call a lawyer or a labor union for protection, which may lead to costly outcomes. To avoid this, it is critical to train front-line supervisors to be clear and consistent in personnel actions. Monitor supervisors' performance to make sure they're not creating the perception of favoritism or worse - discriminating against people on the basis of their protected-class status.

3. Failing to investigate and confirm the factual basis for termination

Employment in Iowa is at-will. An Iowa employer is under no specific legal duty to investigate before firing an employer. (Investigations of any kind of harassment or retaliation claims are, of course, another story.) However, many jurors expect that an employee will not be fired unless the company first performed an investigation in good faith, especially involving a long-term, sympathetic employee.

And courts also will find it suspicious if an investigation would have cleared the employee. In one case, for example, an employee was fired for allegedly altering time cards without further employer investigation of the time cards.

The court found it suspicious that the employer never investigated, as it turns out the cards merely had been altered to delete incorrect and inflated time entries. The court said it appeared that the company was just 'looking for a reason” to fire him.

Any valid investigation gives the employee notice of the charges against her, and an opportunity to explain her version. Failure to provide this minimal due-process may serve to upset the judge or jury.

The moral: While nothing can insulate you from someone determined to sue you, avoiding these pitfalls is a good start to defending the claim.

' Wilford H. Stone is with Lynch Dallas Attorneys at Law, wstone@lynchdallas.com