"DO Sweat the Small Stuff - Little HR Mistakes that can Cause Big Legal Problems"

DO SWEAT THE SMALL STUFF – LITTLE HR MISTAKES THAT CAN CAUSE BIG PROBLEMS

Mitchell W. Quick, Esq.Amy Schmidt Jones, Esq. May 3, 2012

04/13/23 Michael Best & Friedrich LLP © 2

THE DETAILS MATTER

PAYING ATTENTION TO THE NUTS AND BOLTS OF EVERYDAY HUMAN RESOURCES TASKS IS OFTEN THE KEY TO PREVENTING AND/OR WINNING LAWSUITS

FEWER LAWSUITS = MORE JOB SECURITY FOR YOU


THE CASE OF THE MISSING DECIMAL POINT

JPMORGAN SUED – OFFER LETTER TO TRADER FAILED TO INCLUDE DECIMAL POINT

TRADER THOUGHT HE WAS BEING PAID $24 MILLION RAND, INSTEAD OF $2.4 MILLION RAND

IN U.S. DOLLARS – ABOUT A $3 MILLION DOLLAR DIFFERENCE

COMPANY DISCOVERED IT, AND RETRACTED OFER BEFORE HE STARTED

HE REFUSED TO START AND SUED


THE CASE OF THE MISSING DECIMAL POINT

RESULT – EMPLOYEE LOST AT TRIAL COURT HELD EMPLOYEE ACTED WITH “EYES

WIDE OPEN” CAUSE FOR CELEBRATION? NOT SO MUCH – BIG ATTORNEY’S FEES, WASTE

OF TIME, AND BAD PRESS


WEAPONS OF CASE DESTRUCTION

TELEPHONES

MAIL

COMPUTERS


PHONE TIPS

NEVER TALK WITH A LAWYER REPRESENTING AN EMPLOYEE OVER THE PHONE

EVERYTHING YOU SAY IS EVIDENCE THAT WILL BE USED AGAINST YOU

YOU COULD BE TAPED

YOU ARE NOT GOING TO TALK THE LAWYER OUT OF BRINGING THE CASE


PHONE TIPS

IF YOU HAVE COMPANY COUNSEL, THE LAWYER PROBABLY SHOULD NOT CONTACT YOU

THE SAME RULES APPLY FOR CALLS WITH ATTORNEYS FROM GOVERNMENT AGENCIES

TELL THE LAWYER TO CALL OR WRITE YOUR LAWYER


PHONE TIPS

SAVE ALL VOICEMAILS IF POSSIBLE, AND ALSO TRANSCRIBE THEM

FOREVER PRESERVE ANY STATEMENTS OF QUITTING, INSUBORDINATION, OR THREATS

SAVE ANY “EXCUSES” FOR ABSENCES WHEN YOU KNOW YOU ARE LIKELY TERMINATING THE EMPLOYEE

SAVE ANY UNIQUE ACCOMODATION REQUESTS


PHONE TIPS

DON’T TALK WITH AN AGENCY INVESTIGATOR OVER THE PHONE BEFORE RECEIVING A LETTER CONFIRMING AGENCY INVOLVEMENT

ANYTHING YOU SAY IS EVIDENCE, AND IF CAUGHT OFF GUARD, YOU MIGHT SAY SOMETHING INACCURATE

DO YOU KNOW THE PERSON IS ACTUALLY FROM A GOVT. AGENCY, OR IS IT ACTUALLY THE EMPLOYEE’S FRIEND OR LAWYER?


PHONE TIPS

DON’T DELETE TEXTS FROM EMPLOYEES

FOREVER PRESERVE ANY STATEMENTS OF QUITTING, INSUBORDINATION, OR THREATS

SAVE ANY EXCUSES FOR ABSENCES WHEN YOU KNOW YOU ARE LIKELY TERMINATING THE EMPLOYEE

SAVE ANY UNIQUE ACCOMMODATION REQUESTS


PHONE TIPS

DON’T TALK WITH AN EMPLOYEE’S FAMILY MEMBERS OFTEN TIMES THEY ARE FISHING FOR

INFORMATION TO USE AGAINST THE COMPANY (SUCH AS A PROMISE OR ADMISSION)

OFTEN ARGUE AND ACT AS THE EMPLOYEE’S ADVOCATE – NOTHING GOOD COMES FROM THIS


PHONE TIPS

YOU HAVE NO LEGAL OBLIGATION TO TALK TO THEM (UNLESS EMPLOYEE IS A MINOR OR CALLER IS GUARDIAN)

EXPLAIN YOU WILL TALK TO THE EMPLOYEE, BUT CANNOT TALK TO THEM BECAUSE IT IS A CONFIDENTIAL, PERSONNEL MATTER

DISCUSSING CONFIDENTIAL EMPLOYEE INFORMATION COULD LEAD TO A PRIVACY CLAIM


MAIL TIPS

SIGN AND MAKE A COPY OF SIGNED COPY FOR THE FILE OF ALL IMPORTANT DOCUMENTS YOU MAIL OUT TO EMPLOYEES Termination letters FMLA letters COBRA Forms/cover letter Offers of employment Responses to accommodation requests


MAIL TIPS

SEND ALL IMPORTANT DOCUMENTS BY REGULAR AND CERTIFIED MAIL AND INDICATE MEANS OF DELIVERY ON THE LETTER Termination letters FMLA letters COBRA Forms/cover letter Offers of employment Responses to accommodation requests


MAIL TIPS

KEEP ALL SIGNED RECEIPTS OF MAIL SENT THIS IS YOUR PROOF THE EMPLOYEE GOT NOTICE CAN START THE STATUTE OF LIMITATIONS RUNNING


MAIL TIPS

MAKE SURE YOU KEEP ALL LEGAL DOCUMENTS SERVED ON YOU BY MAIL OR OTHERWISE, AND IMMEDIATELY NOTIFY LEGAL COUNSEL Two guy sued Pepsi for “stealing their idea”

of selling purified bottled water Pepsi misplaced paperwork, didn’t answer

or show up for court Default judgment – $1.26 BILLION


MAIL TIPS

The Lesson: some documents are more important than others, and are not “junk mail”

Do not assume your lawyer was served the same day or knows about the lawsuit

EEOC Charges, ERD Complaints, Wage Claims, Personnel Record Requests, etc. have short deadlines and need immediate response


COMPUTER TIPS

PROOFREAD AND SPELLCHECK ALL KEY DOCUMENTS Pacific Yellow Pages ran an ad for a travel company

that stated the travel firm specialized in providing EROTIC travel services

It should have said EXOTIC Company lost a LOT of clients Sued for $10 million


COMPUTER TIPS

READ AND RE-READ THAT EMAIL BEFORE SENDING


COMPUTER TIPS

A UK Company, Aviva Investors, had previously announced they were going to eliminate 12% of their workforce (160 positions)

The Company sent out an email to an employee that spelled out the requirements of the employee’s confidentiality agreement


COMPUTER TIPS

The email also included the line: “I WOULD LIKE TO TAKE THIS OPPORTUNITY TO THANK YOU AND WISH YOU ALL THE BEST FOR THE FUTURE”

The problem? The email went to all 1,300 of the Company’s employees

The lesson – avoid itchy trigger fingers on the keyboard


COMPUTER TIPS

Watch your tone and maintain professionalism. All caps and multiple exclamation points do not present the picture of a level-headed employer.

Some subjects and sentiments are not well-suited to e-mail exchanges. Discussion of legal risk associated with action Expressions of frustration or annoyance


COMPUTER TIPS

An example from the C-Suite: Today’s e-mail becomes tomorrow’s PR nightmare.

From: Ben Baldanza [mailto:[email protected]] Sent: Monday, August 20, 2007 1:02 PMTo: (removed by alex), Christy; Martin (removed by alex); Tony

(removed by alex); John (removed by alex); Pasquale (removed by alex)

Subject: Re: Complaint

Please respond, Pasquale, but we owe him nothing as far as I'm concerned. Let him tell the world how bad we are. He's never flown us before anyway and will be back when we save him a penny.

"DO Sweat the Small Stuff - Little HR Mistakes that can Cause Big Legal Problems"

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