Common Sense Tips for Avoiding and Preventing Employment-Related Claims
Wilke Fleury - Labor and Employment News
By Kelli Kennaday 

By Kelli M. Kennaday


Although the law in California governing employment-related claims is constantly changing, many of the calls we receive from clients do not involve changes in the law or even strictly legal issues.  Oftentimes, clients call to either confirm what they already know they should do when employee concerns arise, or, just as often, they call because they know what they need to do, but want to see if there is any way around what they know will be an unpleasant situation.  In many of these situations, common sense and open communication can go a long way toward preventing both disgruntled employees and the lawsuits they spawn.  Below, we have addressed in a question and answer format some of the more common issues about which we receive calls on a regular basis.

Q:    I need to fire a poorly performing employee.  I don’t want to hurt the employee’s feelings.  Can I just tell him that it’s not working out or that we don’t need his services right now?

A:    No.  Be honest.  If you are firing a poorly performing employee because of his performance, you need to let the employee know the real reason for the termination.  Although you may be uncomfortable telling the employee the truth, doing so at the time of termination may prevent a lawsuit later.  For example, if the employee you are terminating is over 40 and you tell him that you simply don’t need him any longer, but later fill that position with a younger person, you could be setting yourself up for an age discrimination claim.  Or, if the employee being terminated is a member of some other protected class, he may later bring a claim against you for discrimination or retaliation based on the termination.  To defend that claim, you will need to be able to show a legitimate business reason for the termination, i.e., poor performance.  If you did not advise the employee at the time he was terminated of the true reason for the termination, it will be more difficult for you prove that poor performance was the actual reason for the termination.  Of course, as with any termination, you should make sure that two people are present during the termination meeting and that one person is taking notes.

Q:    Do I really need an Employee Handbook and job descriptions?

A:    Yes.  Even if you have only a few employees, a basic handbook setting forth your at-will policy, your sexual harassment policy, your leave policies and any other basic policies necessary to your business can help insulate you from liability for certain types of claims.  For example, a properly drafted at-will policy signed by the employee can defeat later implied contract claims.  In addition, a zero-tolerance sexual harassment policy may offer some protection from sexual harassment claims if you did not know the sexual harassment was occurring and no adverse job action was taken against the complaining party.  Of course, your managers and supervisors should also receive training on how to handle harassment and discrimination complaints if they arise.

    Similarly, job descriptions that list the essential functions of each position can greatly assist you if you ever face a claim for discrimination in making hiring decisions or if you have an employee with a disability who cannot perform the essential functions of the job.  With respect to discrimination claims, an accurate job description will help you substantiate what you were looking for in a candidate and demonstrate that your hiring decision was made on a legitimate basis.  With respect to disability claims, your job descriptions may help you establish that the employee cannot perform the essential functions of his job, which is a crucial factor in determining whether you must make a reasonable accommodation for a disabled employee.

Employee handbooks and job descriptions need not be time consuming or expensive.  Software packages are available that make compiling a simple policy manual and job descriptions relatively easy.

Q:    An employee has requested an accommodation due to a disability.  I’m not sure that the employee is really disabled.  What should I do?

A:    This question raises several issues.  First, if you have reason to doubt that the employee is really disabled, you have the right to ask for medical confirmation of the disability and, if you still have a reasonable basis for questioning the validity of the diagnosis, you have the right to request a second opinion.  However, in California, any medical condition that makes it more difficult for an employee to perform any job is now considered a disability, so you are well-advised to assume that the employee is disabled under California law unless the condition is extremely insignificant.

    Once an employee alerts you to a potential disability and the need for accommodation, you have an obligation to engage in an informal, interactive process with the employee to determine an appropriate accommodation.  Communication here is key.  Discuss the situation with the employee and determine what type of accommodation might be appropriate.  You are not necessarily required to grant the employee the accommodation she requests, so long as the accommodation is reasonable and allows the employee to continue performing the essential functions of her job.  If the requested accommodation seems reasonable and you have the ability to grant the accommodation, doing so may avoid further dispute.  Reasonable accommodations can include anything from an ergonomically correct keyboard to an extended unpaid leave of absence.  Try to find an accommodation that both you and the employee can live with.  It is important to note that, even if you do not believe that any accommodation exists that will allow the employee to perform the essential functions of the job, you must still engage in the interactive process with the employee to ensure that your belief is, in fact, true.

    Finally, situations involving disabilities and the need for accommodation may also raise workers’ compensation issues, Family and Medical Leave Act issues and Americans with Disabilities Act issues.  Proceed with caution.

Q:    I have an exempt employee who has requested to work a part-time schedule.  Some weeks she will be able to work more hours than other weeks.  She has requested that I pay her by the hour for all hours actually worked by her and has agreed that since she is exempt, I do not need to pay her overtime.  I am flexible and want to be able to accommodate her schedule.  Since she has requested this arrangement, can I agree to the request?

A:    No.  While it is certainly acceptable for you to allow your employee to work part-time, you must either pay her a fixed salary regardless of the number of hours she actually works every week (for example, if she plans to work 30 hours per week instead of 40, you could agree to pay her 75 percent of her full-time salary) or pay hourly wages.  If you pay her by the hour, you must also pay her overtime for any hours in excess of eight worked in a given day or 40 in a given week.  There are certain exceptions to this rule, but they are quite limited.

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