Avoiding Frivilous Lawsuits
Elihu Root, the great early-twentieth century New York attorney and former Secretary of War, once said: “About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.” The challenge to employers in an increasingly litigious workplace is to establish and enforce workplace norms that will keep all but the most foolhardy plaintiff’s attorney from filing suit against the employer on behalf of a current or former employee. Following five simple rules will go a long way toward keeping the employer in business and out of court.
Rule No. 1: Have clear workplace rules and enforce them consistently
The surest way to be sued is to enforce vague rules inconsistently. If the employer wishes to have a profanity-free workplace, fine. But it is not fine to promote one employee who consistently swears, while firing another for the same conduct. While California law generally allows employers to fire employees for good reason or no reason, in other words, “at-will,” a creative plaintiff’s lawyer may be able to get around this rule where there is an obvious unfairness to the employer’s actions. This is especially true where the employees who are treated differently are of different genders, races, etc., allowing them to raise the claim that the difference in treatment was motivated by illegal discrimination. At the very least, consistent inconsistency in the enforcement of company rules is a ticket to potentially expensive and embarrassing litigation.
Rule No. 2: Do not use casual dress as a license for excessive informality in the workplace
It is ironic that at the same time standards of dress in the workplace have become generally more relaxed, standards of language and conduct in the workplace, at least as far as the law is concerned, have become generally more restrictive. It is only natural to let down one’s guard in an environment in which one is dressed down. The employer that allows that tendency to be reflected in unprofessional language and conduct may be asking for trouble, especially in the way of claims for impermissible harassment in the form of off-color jokes or excessive horseplay. As a supervisor, make sure to monitor this situation and subtly remind your subordinates in ways that respect them as adults that, no matter what their dress, while they are on duty they are a reflection of the company both internally and externally. Accordingly, their attitude, conduct, and speech should reflect the company’s best image of itself.
Rule No. 3: Encourage early reporting of complaints
Small problems between co-workers become big ones if they are unaddressed. Managers generally feel they can handle a problem with a subordinate. But problems are most likely to arise and fester if an employee—no matter where he or she is in the company hierarchy—feels they have no one to whom they can turn to resolve a conflict with a colleague or a superior. If things get so bad that the employee feels he or she must resign, he or she may be tempted to go to someone outside the company to complain—a lawyer. Depending on the nature of the grievance, the next sound the employer may hear is a process server arriving with a lawsuit.
To limit that possibility—or increase the odds that any lawsuit that does arrive is frivolous—the employer should put mechanisms in place to diffuse problems early. Having an “open door” policy, establishing a company ombudsman, and generally promoting open lines of communication throughout the company are just some of the ways to accomplish this. Multiple safety valves are not only the best way to take the air out of any problem, having only a single such safety valve may be legally impermissible depending on the nature of the problem.
Rule No. 4: Investigate complaints
Having multiple avenues of complaint is pointless if the company does nothing with the complaints once they are received. If the company neglects a complaint, there is a strong possibility the employee may find an attorney who will not. An employer’s own thorough and evenhanded investigation of a complaint may prevent the far more intrusive and less evenhanded kind of investigation pursued by a plaintiff’s attorney.
Most complaints can be investigated without any outside assistance and be resolved internally. Complaints of illegal discriminatory treatment or sexual harassment may well require an attorney to perform the investigation properly. There are significant risks to doing these kinds of investigations without assistance and a well meaning employer may wind up creating an unfavorable paper trail simply because the employer wished to avoid the expense of doing an investigation properly. A well done investigation, like proper execution of the other rules, may keep a competent plaintiff’s attorney from coming after the employer. A sloppy investigation can be expected to have the opposite effect.
Rule No. 5: Report the results of the investigation to the accuser and accused promptly
Regardless of the nature of the complaint, the employer should report its findings to the accuser and the accused—and generally to no one else—promptly. As with rule number one, the employer should project a sense of fairness and consistency so that the employee, regardless of the side of the conflict he or she was on, does not feel the employer aggravated the initial conflict. But beware of punishing the “accused” based on nothing more than the word of an accuser. Both sides of any conflict may have rights that are enforceable in court. Promptly reporting the results of the investigation to the people involved may dampen the office rumor mill and keep residual feelings of resentment from compounding the initial problem.
An employer’s objective should be to promote an environment in which employees accomplish their assigned tasks efficiently and cooperatively. There is little that is more disruptive to both efficiency and cooperation than a costly lawsuit by a former or current employee. People inevitably choose sides in such a conflict and resources that should be devoted to increasing the company’s bottom line are instead diverted from that goal. A well-advised employer will develop and enforce workplace policies in such a way that current and former employees are kept out of lawyers’ offices. Failing that, for some people will always find their way to a lawyer’s office, such policies may help prevent such a visit from turning into a lawsuit.