Avoid costly lawsuits

Avoiding discrimination and harassment lawsuits should be a priority for your nursery, because these lawsuits can be costly. The EEOC collected $525 million in 2015 and $482 million in 2016. There are a few steps any nursery can take to prevent these types of lawsuits.

First, distribute written policies. The exact policies that are required to be posted vary by state, but make sure your employee handbooks are up to date. Employment laws change often. Hand them out, and follow them.

What should be in your handbook? That topic was covered by Christopher Curci, an associate for Freeman Mathis and Gary, LLP and expert in labor and employment litigation, in a March webinar.

“You don’t have to have the world in a handbook, but you should have some things that can save you,” Curci said.

To start, all businesses must have a written discrimination and harassment policy in the handbook, Curci said. To be effective, that policy needs to describe prohibited conduct, show a clear complaint process – with more than one person to which employees can report discrimination or harassment – and outline the impartial and thorough investigation process, and a promise of no retaliation. The same should be done for Americans with Disabilities Act “reasonable accommodations” and Family Medical Leave Act policies.

Supervisor training is a huge part of the puzzle. How your employees report harassment or discrimination is critical, and how your supervisors handle those complaints is just as critical. Supervisor actions are almost always part of a lawsuit, says Julie Marquis, a partner with FMG LLP who specializes employment, commercial litigation, directors and officers and professional liability litigation in California.

It’s helpful to have two complaint recipients, and of different genders, Marquis says. Also, if more than 10 percent of your workforce’s primary language is not English, by California law, you must provide a translation of your harassment, discrimination, and retaliation prevention policies. It’s part of the Fair Employment and Housing Act, which bans employers from discriminating based on gender, race, national origin, etc.

Does FEHA cover all California employers? No, but it covers most. FEHA applies to employers, contractors, or their agents who employ five or more salaried workers “for each working day in any 20 consecutive calendar weeks” whether those employees work within or outside California.

Curci says business owners should spend time training supervisors on the procedures and documentation that is necessary to handle these claims. They need to know how to conduct impartial interviews, when to go to HR, and the basic procedures for FMLA and ADA requests.

“As a business owner, you need to understand your supervisors are the ones who are dealing with the employee,” Curci says. “Often litigation ensues because an employee comes to a supervisor and supervisor doesn’t know what to do.”

Even though it is time consuming, there are many tangible benefits to documentation. This is especially important if a former employee brings a wrongful termination lawsuit. If the lawsuit turns into a he-said, she-said situation, documentation can tip the balance in the employer’s favor. Jennifer Ward, managing partner of FMG LLP’s Pennsylvania and New Jersey offices, provided a brief list of do’s and don’ts of documentation during the webinar. Don’t use editorial opinions, unsupported claims, derogatory comments, or absolutes (“he/she always misses deadlines,” “never on time”).

Do use dates documenting events, direct quotes, and do reference company rules and policies applicable to the situation.

“Documentation can make or break your case,” Ward says.