Want to file an employment lawsuit? Get in line.

Yes, everybody’s doing it. And don’t wait until you’ve been fired either. Why not get the legal wheels moving right now? Who knows, maybe the boss you’ve sued won’t be nice to you while the case is dragging its way through court? Now you can add a claim of retaliation!

Oops. . .

Of course, not every employment suit is without some merit. Not so long ago, the MML Pool defended a lawsuit filed by a female police officer who claimed that, because of her gender, she had been repeatedly passed over for promotions in favor of less qualified males. Unfortunately, the city’s personnel policies hadn’t been updated in many years. Its organizational chart listing the order of rank for members of the police department turned out to be a bit of a problem. Yes, the chief was at the top, followed by lieutenant, sergeant, patrolman and then part time patrolman. At the bottom, however, even lower in rank than a part time patrolman, was “police woman.” Needless to say, we had to settle the case for more than the reality of the situation called for.

Gossip isn’t all bad

If there’s a silver lining in claims like this, it’s that municipal officials talk with each other. When something really bad happens, or an embarrassing situation that might act as a timely warning for others occurs, word seems to get around quickly. A miserable experience for one community can be an effective loss control tool for many others. Unfortunately, that doesn’t do much to ease the embarrassment, cost, negative public scrutiny or career jeopardy suffered by the unfortunate officials against whom the lawsuit was filed. And ultimately, everybody pays through higher insurance premiums.
Employment claims represent one of the fastest growing and most volatile areas of municipal exposure. Clearly, you can’t avoid all employment litigation. Municipal officials are obligated to discipline and terminate employees at times, and to allocate limited resources in ways that will cause some to believe they were unfairly treated. That goes with the territory. Even doing everything “right” won’t guarantee that you won’t be sued.

Avoid common mistakes

But employment lawsuits are dangerous to defend even under the best of circumstances. What are some of the most common traps municipal officials fall into that make this task even more difficult?

~ Failure to seek the advice of municipal legal counsel at an early stage, or to heed their recommendations. You can be sure that the best lawyers are the ones who are willing to occasionally tell you what you don’t want to hear.

~ As the “police woman” situation noted above shows, neglecting to conduct periodic reviews and update personnel policies will eventually cost you.

~ Telling a job candidate that the reason he or she is not being offered a position is that you are concerned that his or her health issues will impact the city’s insurance premiums or workers compensation costs.

~ Either failing to document personnel problems, or over-documenting every miscue so that it looks like you are out to get the employee. On that subject, it’s amazing how often employment concerns aren’t shared with the employee in question until after an adverse employment action is taken or the lawsuit is filed. Nothing makes a jury angrier than to hear all the reasons why an employee was so awful, and then find out the individual in question never heard them.

~ Retaliating after a lawsuit or worker’s compensation claim has been filed. Although the underlying lawsuit may have little merit, the employer’s actions while it is pending are put under a microscope. It is not uncommon for a jury to award nothing for the original discrimination claim, but grant large sums for the resulting laundry list of alleged retaliatory acts. These claims often spawn “copycat” claims from other employees who argue that they were retaliated against for supporting the claims of the primary plaintiff.

Lawsuits aren’t much fun

Employment claims usually bring intense stress and anxiety under the best of circumstances and can ruin reputations and careers in the worst. Remember that you may have to explain your actions to a hostile plaintiff’s attorney in front of a jury made up of people who are going to start with the premise that the employee has been wronged. The way to emerge unscathed is to treat employees the way you would want to be treated in the same circumstances, and carefully consider and explain your actions every step of the way.