Four Things Every Employer Must Do Immediately After Learning That an Employee Has Made a Claim
Michael G. Trachtman |
When an employee makes a claim against an employer, even an informal claim, the employer’s initial reactions – what the employer does in, literally, the first couple of hours after learning of the claim — will either stabilize the situation and maximize the opportunity for a favorable outcome, or set it on a downward spiral. Ideally, the employer will notify counsel with expertise in the nuances of employment law and let him or her take over but, sometimes, employers fail to involve their lawyers as soon as they should (why would an employer ever pass up the opportunity to talk to a lawyer?).
Here’s what you need to know.
1. Try to Stop the Bleeding.
For example, if the employee claims that the employee is being sexually harassed by a supervisor, you must take all feasible steps to separate the employee from the supervisor until the facts can be sorted out and the dust settles. If the employee claims that the employee is being deprived of a reasonable accommodation under the ADA, or is being denied leave under the FMLA, get immediate advice to determine if something should be done right away to keep things from getting worse.
2. Don’t Retaliate.
Understandably, employers do not look kindly on employees who make claims, especially claims that seem unwarranted. The temptation is to terminate – why support the enemy? At the least, employers are not likely to put employees who make claims first in line for promotions and bonuses. Fight the urge: it is against the law to retaliate against an employee for making a claim, even if the claim turns out to be unsupportable (so long as it was made in good faith). Too often, an employee loses on a harassment or discrimination claim, but then wins on a retaliation claim that arose from how he or she was treated after filing the claim. Don’t fall into that trap. Moreover, as difficult as it may be, treat the employee with respect, not hostility. Often, the employee is just looking for a solution; don’t convert it into a situation where the employee is looking for revenge.
3. Centralize Responsibility.
There must be one person who is the point of contact with the employee and who is making and implementing decisions on an informed and coordinated basis. Often, in the first stages before counsel takes over, the CEO is doing what he or she thinks is best, while HR is doing what it thinks is best, while the managers responsible for the employee are doing what they think is best … sometime at cross purposes, sometimes in violation of the law.
4. Initiate a Legally Compliant Investigation.
Among the first things you will be asked in an employee v. employer litigation is whether you immediately initiated an investigation to determine if, in fact, the employee’s rights had been compromised – not just any investigation, but an investigation that meets the criteria the law establishes in this context. If you have not done so, the consequences can be severe. MEA personnel know how to handle these investigations. In preparation for the investigation, assemble and protect all potentially pertinent documents (electronic and hard copy) and information. Once you are on notice of a claim, you are obligated by law to make certain that the evidence pertaining to the claim is preserved. If it’s not, you could be foreclosed from presenting your defenses to the claim.
As always, let us know if we can help.
[author] [author_image timthumb=’on’]https://meainfo.org/app/uploads/2014/10/michael-trachtman.jpg[/author_image] [author_info]Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.[/author_info] [/author]