Loren K. Allison, attorney at law 803 S. Calhoun St., Suite 300, Fort Wayne, Indiana 46802 (260) 407-0040
    We are reminded every day to check our health to minimize the risk of disease, evaluate insurance policies to ensure that we and our families are taken care of in the event of a health care issue, and even pre-plan for our burial.  As you are chided to take care of your personal life, a prudent business owner mut also give thought to minimizing the risk of the finding themselves faced with yet another threat – that of an administrative charge or lawsuit by virtue of an alleged violation in the minefield of labor, employment and discrimination laws.Just as in our everyday lives we face risks, in the business world, odds are your “number will be up” and that you will find yourself defending the action of a supervisor/subordinate who, as your agent, has triggered the filing of an claim against you by a former or even a current employee.  However, when was the last time you evaluated the employee handbook, performance appraisal system, or internal complaint procedure which are necessary policies to deter or prevent litigation?

    For example:

    • An effective new hire orientation program will ensure employees understand the company’s objectives, and relevant parties of the handbook, such as the Code of Conduct.  Have the employee sign a receipt acknowledging that they have read and will abide by such policies and put the written receipt in their file.  Now you can prove they know “the rules”.
    • Your handbook must include an internal complaint procedure so you can handle matters in-house.  Management has a vested interest in resolving problems internally, without the outside intervention of the EEOC or attorney.
    • This is particularly true in cases of alleged sexual harassment.  Remember, “voluntariness” is not a defense to a harassment charge – the question is whether a sexual advance is “welcome” or not.  The purpose of your investigation in this or any other matter is not to uncover truth/guilt, but to end illegal activity.
    • If you have a performance review program, make sue the evaluations are objective and accurate, or get rid of the program altogether.  It is difficult to explain to a judge/jury that a hastily composed review which reflects that an employee is performing “acceptable”, does not accurately reflect an employee’s true performance.  An employee should either be performing “above average”, “average” or “need improvement”.
    • You should undertake greater efforts in dealing with a marginal long term employee with years of glowing performance evaluations who you now want to lay off.  Such parties typically in their 50s’ and 60s’, should be given a 90 day performance improvement program to correct their performance with agreed upon goals and timetables.

    While here are other auditing criteria, if a prudent employer addresses these instant issues, it will take them a long way toward building a firewall against litigation.

    Article by Loren K. Allison, attorney at law
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