Top 10 Tactics to Avoid Litigation: An Employment Lawyer's Perspective (Part 2)

Editor's note: In Part 1 of this series, Sheryl Jaffee Halpern began her look at practical ways employers can avoid disputes with current and former employees. Fortunately, there are a number of ways to handle these issues proactively (instead of reactively), allowing employers to maintain peace in the workplace, avoid litigation and focus on running their business. In Part 2, the author shares the remaining five of her top 10 tactics for employers.

Tactic 6: Recognize and Reward Good Performance

Child psychologists routinely tell parents to use a 10:1 ratio when praising and criticizing a child. In other words, for each time you reprimand a child, you should find 10 ways to offer praise. This same philosophy translates to the workplace, but in most workplaces, it is rarely used. Let's face it, when was the last time someone told you that you are doing a good job?

Although employers don't always realize it, the power of a sincere "thank you" can be enormous—especially when it is delivered in writing. There are plenty of low- or no-cost ways to recognize exceptional performance. For example, when an employee does something well, one employer delivers a Kudos® granola bar with a short note acknowledging the achievement. Another effective approach is to use a bulletin board, company newsletter or website to post short snippets publicly recognizing employee successes—no matter how small.

When employees feel validated and appreciated, it boosts their morale. Improved morale means increased productivity and fewer employee claims. It's a win-win scenario for both the employer and its employees.

Tactic 7: Don't Delay Proactive HR Measures

The familiar adage "an ounce of prevention is worth a pound of cure" could not be more apt than in the employment context. For example, it is always in an employer's best interest to discover and remedy problems before an outside agency conducts an audit. If a single disgruntled worker contacts the Department of Labor, it can easily turn into a full-fledged audit that ultimately requires the employer to provide back pay to a whole class of employees. The lesson learned is that an employer can and should audit itself, with the goal of finding and correcting problems before they become liabilities.

Along the same lines. employers should never put off what they can do today. That includes proactive steps such as updating your employee handbook to comply with recent changes in the law and conducting in-house harassment training to make sure employees understand their rights. If you put these activities on the back burner, your outdated policy and failure to provide training could come back to bite you when a discontented employee files a workplace harassment claim. Taking the time to consider compliance issues and implement just a few proactive measures can help employers avoid a great deal of difficulty down the road.

Tactic 8: Listen to Your HR Manager/Director

Employers should always remember the value that HR professionals add to an organization. After all, today's employment landscape is a legal minefield, and you need a trusted resource to help you navigate that dangerous terrain.

Unfortunately, employers often see HR personnel as protectors of employee rights, sometimes at the cost of profitability. In reality, however, a good HR team has the experience necessary to understand and implement best practices that respect worker rights while enhancing the profitability of an organization. Your HR professionals should also be able to answer a majority of the questions that managers raise on a daily basis. And if they don't know an answer, they should have resources available to find it, which leads directly to the next tactic.

Tactic 9: Give Your HR Manager/Director Access to Legal Counsel

For better or for worse, HR professionals are often discouraged from calling legal counsel because "it's too expensive." But what they find over time is that it is often more expensive not to call. Although no one can undo a botched termination, an attorney can offer guidance on the front end designed to avoid the mistakes that often lead to liabilities—and costly litigation—down the road.

Sometimes, all you need is validation before moving forward with a key personnel decision. Allowing your HR manager to call your employment lawyer not only ensures a well-reasoned and legally justified approach but also can give him or her the confidence to become a more effective part of the management team.

Tactic 10: Strike an Appropriate Balance between Best Practices and Practical Reality

Best practices are important and should be established and followed. That said, employers often cannot ignore the practical realities of the workplace. You should, of course, avoid intentionally violating the law or sacrificing legal obligations in the name of business. There are, however, ways to strike an appropriate balance.

For example, employers often find themselves facing strict wage laws that prohibit them from holding a final paycheck as "ransom" for company property that a departed employee has yet to return. The best practice is to comply with the law by timely paying the employee's final compensation and find another way to retrieve the property. Understandably, however, employers often make the business decision to withhold that final check—if only for a few days—in an attempt to encourage the employee to return a laptop, smartphone, training materials or other company property. If that approach is not successful, the employer then reverts to legal compliance. While this is not a tactic an employment lawyer would advocate, it does respect an employer's desire to bridge the gap between best practices and practical reality.

So that concludes the top 10 tactics employers can implement to avoid litigation. Will taking these steps, in all circumstances, prevent a government audit, eliminate an administrative claim or keep an employer out of the courtroom? There are no guarantees. Using these approaches, however, can go a long way toward maintaining peace in the workplace, which allows employers to focus on running their business instead of the headache and expense of litigation.

Sheryl Jaffee Halpern, Chair of the firm's Labor & Employment group, helps employers make important decisions about their employees in a way that is designed to minimize risk. She counsels employers on a wide range of employment matters, providing clear, direct guidance designed to promote legal compliance, while remaining cognizant of the practical workplace realities her clients face.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under professional rules, this content may be regarded as attorney advertising.