Complying with the law is only the starting point when making sound and legally defensible employment decisions, such as discipline, terminations, denying accommodations, and so forth. Have you ever heard of a company that made an employment decision that technically complied with the law, but were still sued by an employee or settled a lawsuit? Do you want to rule in favor of the employee or employer if an “at-will” employee was fired after 30 years of service to the company for a minor violation of the attendance policy, even though the employee was injured on the job, has a medical condition, and a good performance record? Does your opinion change in the context of an at-will employee who was late numerous times, warned on numerous occasions, caused customer complaints, and was mediocre at best with respect job performance?
There is no law or legal burden of proof requiring the employer to evaluate whether it looks like the villain or the victim or to consider real world and reasonable expectations of acceptable employment behavior, but those are key questions to consider when making employment decisions, especially high-risk employment decisions that may result in litigation. Why?
The people who resolve or decide employment disputes and litigation (judges, juries, arbitrators, investigators) are just that… human beings with personal experiences and viewpoints of fairness and acceptable employment behavior, and they are faced with conflicting stories and evidence to determine who is right and wrong. Opposing counsel also evaluates lawsuits based on whether their client (the employee) appears sympathetic to a judge or jury or was the victim of an employer who enforced the letter of the law, but not the spirit of the law. Thus, if the company can show it was the real victim in light of the employee’s misconduct and the company is upholding reasonable expectations of acceptable employment behavior, the company’s chances of winning the lawsuit or preventing the lawsuit are much better. Accordingly, here are three general pointers that may help you defend against employment litigation: (1) comply with laws, (2) show and document that the employer was a “victim,”
and (3) enforce reasonable expectations of acceptable employment behavior.
