Employees know they have rights in the workplace and are not hesitant to exercise those rights, as is evidenced by the increase in the number of charges of discrimination and lawsuits filed. As employers, you have rights, too (i.e., the right to terminate your employees’ at-will employment at any time for any reason, so long as the reason is not illegal). Not all employers, however, take measures to preserve their rights, prevent lawsuits or protect themselves from liability. Here are 10 common legal mistakes you can easily avoid.
1. No written employment policies. Employers who do not have written policies and procedures governing employment may encounter practical, as well as legal, issues. As a practical matter, employees should be informed of what you as the employer expect of them. Moreover, your policies, particularly policies against harassment and discrimination, may help you avoid liability and limit your exposure in the event liability was established.
2. Inconsistent enforcement of policies. Employers must maintain consistency throughout the decision-making process with respect to all employees. Inconsistent enforcement of policies provides a basis for employees to claim that discrimination occurred.
3. Failure to document all performance problems. There are many good reasons why employers should document performance issues – to help employees understand their strengths and weaknesses or to establish proof for employment decisions (i.e., discipline, demotion or termination) – to name a few.
4. Inaccurate performance evaluations. If you rely on performance evaluations to make employment decisions, you should have an objective evaluation system. Also, make sure your supervisors address performance issues accurately and honestly. Inaccurate performance evaluations can serve as a basis for a discrimination lawsuit.
5. Lack of consistent documentation. The Ninth Circuit Court of Appeals, the court with jurisdiction over Nevada, recently found in an employment discrimination case that the employer’s failure to document a meeting may be construed as an attempt to conceal the true purpose of the meeting.
6. Failure to investigate a claim of illegal harassment. Employers may avoid liability in certain circumstances even where illegal harassment occurred, if the employer conducted a prompt and thorough investigation and took appropriate remedial action to address the harassing conduct.
7. Failure to control gossip about alleged illegal harassment in the workplace. Discussions among employees about alleged harassment by another employee may give the alleged harasser a claim for defamation.
8. Lack of centralized employment termination process. Employers who give their managers/supervisors the authority to make employment termination decisions should consider either giving that authority to one manager and/or including an added level of review to ensure that all termination decisions are consistent, supported by sufficient documentation and are based upon legitimate business reasons.
9. Lack of honesty in dealing with termination. Employers who do not give the true reason(s) supporting the decision to terminate may provide a basis for the discharged employee to claim discriminatory treatment.
10. Not hiring competent counsel well-versed in Nevada employment law. Nevada extends additional rights to employees above and beyond the rights granted under federal law. For example, Nevada prohibits discrimination against any employee for the legal use of any product outside the premises of the employer which does not adversely affect job performance or safety of other employees (e.g., smoking). Attorneys who practice in other states may be familiar with federal law, but may not be aware of the additional Nevada law governing certain aspects of employment.
