12 Ways to Lessen Employee Legal Risks

Helen A. Rella

October 5, 2015

Your business or organization can reduce tensions from and conflicts with employees and help lessen the risks of employee-initiated legal actions by focusing on at least 12 areas. 

1. Ensure managers and supervisors are qualified to coach and lead.

Studies of the root causes of employee turnover and employee legal actions often trace those underlying causes to unqualified or dysfunctional managers and supervisors. The best way to protect against employee-caused problems is to fill supervisory and leadership positions with individuals who have the temperament and personality traits best suited for coaching and leading others. 

2. Train managers and supervisors.

The managers and supervisors who work directly with employees on a day-to-day basis may cause difficulties with employees, or they will avert most of the problems and actually promote harmonious and productive behavior. One key to the results the managers and supervisors get is in the knowledge and training they receive in several areas. These areas include:

  • The organization's policies and procedures and their role in applying them and enforcing them;
  • The myriad of laws and regulations that protect employees and how not to violate them;
  • How to avoid harassment and abusive interactions with others;
  • How to skillfully coach employees; and
  • How to document employee matters in order to protect the company.

3. Replace Dictatorial Discipline with Coaching Correction.

The traditional way managers and supervisors attempted to correct employee misbehavior and poor performance was the arbitrary, "dictator," discipline approach: Tell the employee what they've done wrong, discipline them, and threaten them with termination in the future.

There's a better way: coaching employees to correct behaviors. This approach involves:

  • Identifying -- with the employee -- the unacceptable behavior or performance.
  • Confirming with the employee the required behavior or performance.
  • Setting a time/date-certain when the employee will behave or perform as required – generally immediately.
  • Explaining the possible consequences to the employee if the behavior or performance does not change.
  • Informing the employee about any additional coaching, training, or education the employee may need to reach the required behavior or performance goal.

4. Hold performance achievement meetings.

Think of the performance achievement meeting as a replacement for the traditional performance review or performance appraisal. In many workplaces, the performance review is never done or is rarely done. In other workplaces, it's done on schedule once a year. And when it's done, it typically involves perfunctorily telling the employee what he or she has done right -- and especially, wrong -- in the previous year. Generally, it also involves giving the employees some kind of rating and telling them whether or not they qualify for a raise.

A performance achievement meeting is different. The focus is on what the employee has done, and is doing, right… and on what the employee can do in the future to do even better. The "agenda" for the meeting is something like this:

These are your (the employee's) achievements since we talked last about your performance, these are achievement goals for you in the near future and longer-term, and these are the ways that we (the organization), I (the supervisor) and you (the employee) will work together to assure that you'll reach these achievements.

5. Terminating employees when necessary.

One mistake many organizations and their managers and supervisors make is to avoid the disagreeable act of terminating employees who deserve termination. There are many reasons why some employees, from time to time, don't belong in a workplace. Some just aren't qualified and never should have been hired. Some become diehard troublemakers. Some become known under-performers. Other employees quickly learn who these employees are, and the longer management tolerates their presence in the workplace, the more their presence lowers the morale of the other employees and generally speaking, the greater the exposure to the company.

What to do? Identify these employees. Treat them fairly. Document performance issues in case you need to defend the company against claims. But when the "coaching correction" approach doesn't work, or when your gut tells you that the employee is more trouble than the employee is worth, make the decision to terminate. And stick with the decision. Consider obtaining a release from the terminated employee, in situations where there is a likelihood that the employee may bring a claim against the company (such as when the employee falls into a protected class (based on sex, race, national origin, disability, etc.) and consult with counsel in this regard.

6. Put the right people in the right jobs.

One cause of frustration for an employee is to get stuck working in the wrong job. The employee's performance suffers and this has a negative impact on the organization's results. Make it one of a manager's and a supervisor's responsibilities to identify employees who are better qualified for other positions. Develop systems in your organization that will channel these employees into new positions where they can excel.

7. Improve the hiring process.

The best way to avoid terminating deserving employees is to not hire undeserving applicants in the first place. So put more time and effort into recruiting and hiring the individuals who are the best fit for the jobs you have open. This means:

  • identifying the essential tasks and the essential qualifications for each position,
  • screening resumes to focus on interviewing only those individuals who appear to have the essential qualifications,
  • testing these applicants to identify those who actually have the qualifications, behavior style, and attitudes necessary for success in your workplace, and
  • checking on the background and work history of finalists in accordance with applicable legal requirements.

8. Empower employees as much as possible.

Empowerment in the workplace means giving employees the opportunity and the responsibility to use their knowledge and talents to achieve the best possible results in their jobs. To see empowerment happen, employees have to know their expanded boundaries for making decisions. They have to know they have the right to make these decisions within parameters set by the employer. And they have to know they'll not be disciplined for making reasoned decisions within those parameters that go wrong. (One of the manager's and supervisor's responsibilities, in turn, is to help employees learn from the experience when their decision doesn't work out.)

9. Have an Open Door Policy

Have an open door policy and encourage employees to voice their concerns and provide their input. Commit to responding quickly to employee concerns and put an appropriate response system in place for dealing with those concerns.

10. Help employees feel needed and important.

The desire to feel needed and important is one of the basic desires of nearly all employees. Employees who feel they are needed at work and that what they do is important to the company's or organization's success are more likely to feel positively about their employer. And they are less likely to see grievances where there are none.

So gather supervisors and management staff together and brainstorm ideas to help employees feel needed and important. Design a plan to increase employees' feelings that they are needed in their jobs, that their jobs are important, and that what they do is appreciated.

11. Use caution when disciplining or terminating an employee.

When disciplining or terminating an employee, review the individual's work history carefully. Be clear and concise in the information that is communicated to the employee. When meeting with the employee have a witness present – never conduct a disciplinary or termination meeting alone and clearly document the meeting when it is concluded.

Also, when disciplining or terminating an employee, consider the individual's age, sex, race, and any other legally protected trait or qualification the employee may have. Ask this question: Will a jury or human rights hearing officer question our actual intent was to "target" or "get rid of" a person in a protected class? Consult with counsel when dealing with an employee who falls within a legally protected class for guidelines as to how to best proceed.

Important: Document discipline actions in writing. Describe the employee's conduct or performance and why it is unsatisfactory. Also describe any steps you have given the employee to improve and any deadlines for improvement as well as the employee's response to the meeting.

12. Be courteous and respectful.

In all dealings with your employees, be courteous and respectful. For example, when terminating an employee assess the situation carefully in order to determine if it is possible to give an employee advance notice of termination where practical. Recognize that in certain circumstances (such as when security and confidentiality are issues), there may be a need to have an employee leave the workplace immediately upon termination. Also, when communicating with employees, do not speak aggressively, do not belittle them and do not use disrespectful or insulting words.


Helen A. Rella is Counsel in the firm's Employment Law Practice and specializes in helping clients create and implement appropriate personnel policies and procedures, protecting them from frivolous lawsuits and in defending against claims when they are filed. She has developed seminars on sensitivity in the workplace. She may be reached at: 212-981-2310 or via email at hrella@wilkauslander.com


[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers' individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]