Employers/
Management
(Representative
Clients/ Legal Projects, Attorneys)
When should an employer issue a “verbal” warning to an employee?
Never. An employer should always create a written document for every warning given to an employee about job performance problems. Employers should direct supervisors to create a written memorandum to memorialize even a so-called “verbal” reprimand. The memorandum should include the date of the warning, the content of the warning and, preferably, the signature of both the employee and the supervisor to acknowledge the delivery and receipt of the “verbal” warning. If the employer later discharges the employee for performance problems, the memorandum will counteract arguments in litigation that the employee never received a warning or an opportunity to improve. The memorandum will also provide evidence that many jurors expect from employers if the termination becomes an issue in a lawsuit. Legal advice from a competent employment attorney can assist employers in documenting disciplinary actions in all situations to build better defenses for possible later litigation.
Does an employer have a legal obligation to treat employees fairly?
No. Employers only have an obligation to treat employees in a manner consistent with each employer’s personnel policies and consistent with the law. If a private employer
mistakenly adopts policies or practices that require fair treatment for employees, the law will generally require the employer to follow those policies and practices. Furthermore, if the employer’s managers consistently advise employees about a “right” to fair treatment, a court or a jury may require the employer to live up to those oral representations. Of course, jurors have varied definitions and expectations regarding what constitutes “fair” treatment. Thus, if juries find an employer’s conduct “unfair,” then they may award former employees large money judgments for perceived “unfair treatment.” For this reason, employers and managers should
avoid company policies or practices that might imply a requirement for “fair” treatment of employees. Instead, an employer’s written policies should state that the employer treats all employees in compliance with applicable state and federal law and consistent with the company’s written policies.
An employer's written policies should also state that supervisors and managers lack any authority to alter the terms of the written policies. Unfortunately, many employers have employee handbooks or policies that contain language that may arguably constitute a promise for fair treatment. A review of the employer’s handbooks and policies by a competent employment lawyer can assist the employer in uncovering and correcting any hidden problems in employment policies.
If an employer wins a discrimination lawsuit brought by an employee, will the employer recover its attorneys’ fees?
In almost all cases, the answer is “no.” Discrimination statutes theoretically allow the prevailing party to recover its attorneys’ fees. In practice, however, courts have rarely permitted prevailing employers to recover their attorneys’ fees. A prevailing employer recovers attorneys’ fees only if the court determines that the plaintiff brought frivolous claims. The plaintiff’s ultimate loss does not equate to a court’s finding that the plaintiff pursued frivolous claims. Thus, an employer must anticipate
a high economic price associated with winning a discrimination lawsuit. For this reason, employers must obtain competent legal advice, as early as possible, to evaluate the case, the likelihood of success, and the likely expenses associated with winning at trial. Only then is the employer in a position to make an educated business judgment about whether to defend the case through litigation, or to pursue more economical settlement options.
Are you contemplating a disciplinary action against a health care professional?
Disciplinary actions against health care professionals raise legal issues in addition to the general legal pitfalls that apply to all adverse employment actions. Employment issues may also raise the possibility of future professional malpractice or privacy actions by an affected patient. Poor performance by health care professionals may involve problems with the delivery or documentation of direct patient care. In those circumstances, employment issues become entangled with the legal requirements regarding the privacy and confidentiality of medical information contained in patient records. Moreover, a straightforward disciplinary action may trigger complicated legal requirements for reporting the employee to a state licensure board, the National Practitioner Data Bank (NPDB), or the Healthcare Integrity and Protection Data Bank (HIPDB). Consequently, employers of health care professionals should consult legal counsel having experience not only with employment issues, but also with health care issues, before taking adverse disciplinary actions against health care professionals.
Representative
Clients/ Legal Projects, Attorneys
Human Resources Advice
- Hiring and Termination
- Sexual and Workplace Harassment
- Employment Discrimination
- Employee Handbooks
- Personnel Policies / Manuals
- EEO Policies
- EEO and Management Training
- Workplace Violence
- Call us today for same day electrical wiring in Perth, performed by certified electricians. Off-Duty Misconduct
- Wage and Hour
- Employment Contracts
- Professional Employment Contracts
- Medical Staff Relations
- Family Medical Leave
Employment Litigation
- Wrongful Termination
- Breach of Employment Contract
- Discrimination (Age, Disability, Gender, Race, etc.)
- Administrative Charges (EEOC and Colorado Civil Rights Division)
- Arbitration and Mediation
- Workers’ Compensation
- ERISA Benefits
- Family Medical Leave
Labor
- Unionization
- Bargaining
- Grievances
- Labor Arbitration Defense
- Unfair Labor Practice Defense
- NLRB and Other Litigation
Attorneys practicing in this area:
Henry C. Cleveland, III, Colleen M.
Rea, Paul D. Godec, Walter J.
Landen, Peter C. Middleton
Back
to Practice Areas
|
