When an Employee Becomes a Legal Threat
When It Stops Being Routine
Dealing with employee issues is a regular part of HR procedure, but sometimes what begins as a regular HR issue can snowball into something that opens the company to potential legal liability. It can be easy to overlook a problem that might become a lawsuit, or alternatively, to escalate an issue that might lead to nothing.
“Rather than trying to read the tea leaves, organizations are much better positioned to recognize developing legal issues when they have good, consistent systems in place,” says Leo Tyree, Senior Counsel at Constangy, Brooks, Smith & Prophete. “That means clear policies, regular policy review and updates, practical training, standard operating procedures where appropriate, good recordkeeping and tracking, and clear responsibilities among management, HR and legal. Everyone should understand what they own and when to escalate.”
Below are four examples of signals that an issue could evolve into a legal liability, whatever it looked like when it landed on your desk. Get the full Download here.
- The same complaint keeps coming out of one department. Repeat complaints from one team point at a condition rather than an incident.
- A complaint names a protected characteristic. “Under federal anti-discrimination law, protected characteristics include race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age (40 and older), disability, and genetic information. State and local laws may protect additional characteristics,” says Tyree. Once race, age, disability, pregnancy, religion or national origin shows up, the company is on notice. “Legal issues can arise from protected activity or other statutory rights, such as reporting discrimination or harassment, requesting an accommodation, taking protected leave, raising certain wage or workplace concerns, or participating in an investigation,” points out Tyree.
- It’s the second complaint about the same manager, even if the first one was resolved. Two complaints can point to a pattern the company knew about.
- A matter you’d normally settle informally turns formal or adversarial. When a category of issue you’ve always handled in a conversation starts arriving in writing, that change is the signal.
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