Staff Matters Newsletter March/April 2000
Employee Lawsuits: Order in the Court
By Steve O'Connor

For example, you should be concerned if, when they see who your lawyer is, the prosecutors high-five each other. And you may have a bad lawyer if he whispers to you just before the trial starts, "The judge is the one with the little hammer, right?"

It is crucial to have a solid system of policies and procedures in place and to provide proper training for staff to ensure their consistent application. E. Fredrick Preis Jr., head of the labor and employment law section at the McGlinchey Stafford law firm in New Orleans, has developed a 10-point checklist for reducing liability in employee lawsuits.

1. Review written materials. Annually, you should review handbooks, employment applications and procedural guidebooks. The goal is to eliminate problem language and update the material so that it reflects current law.
2. Exercise care in oral presentations. Don’t make promises you can’t keep about an employee’s job security. Also, don’t make employees or applicants angry. If you can’t say anything nice, don’t say anything. Here is the reason why we get into most lawsuits: Employees get mad at us.
3. Document incidents that may cause a claim. The documentation of an incident must be very detailed, be dated and include the specific names of the people involved. You should write this as if it will be used as proof in a lawsuit.
4. Maintain a good-faith file. Keep track of the good things your organization does for the community. The purpose of this collection is to show that the health care organization has a record of fairness and is interested in doing the right thing.
5. Exhibit fairness. Judges and regulatory agencies sometimes look for evidence of basic fairness rather than overt discrimination. The best tactic is to give employees the opportunity to speak to human resource staff and to investigate when a complaint is voiced.
6. Demonstrate consistency. Stick to your written policies and procedures and be sure human resources is involved in any employment action.
7. Implement a positive employee relations program. Look at how employees are being hired, trained and oriented. How is the communication between workers and management? "Pay particular attention to the performance evaluation," Preis says. "False positive performance evaluations can later come back to haunt the institution if the employee is fired for poor performance."
8. Consider alternative dispute resolution (ADR). The benefit of ADR is to put the dispute between the hospital and the employee before a neutral, consistent fact-finder.
9. Train supervisors. Supervisory training should include sensitizing them to the various employment laws, especially sexual harassment.
10. Conduct periodic audits. This audit should yield an action plan for human resources departments. Pretend you are the Equal Employment Opportunity Commission and ask yourself, where would I look and what are the vulnerabilities?

If you do find yourself in court you will be better able to defend the organization with these strategies in place. Just hope you don’t get a lawyer who begins his closing arguments with, "As Ally McBeal once said … "