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Preventing Employment Claims

Employers lament the high incidence of workplace claims.  Exorbitant workers’ compensation premiums, the disruption to company operations caused by medical and disability leaves, and the costs of defending employee lawsuits, including claims for wrongful termination, harassment, retaliation, and wage and hour violations, all seriously impact the employer’s “bottom line.”

The worker’s compensation “crisis” in recent years, as well as California’s liberal employee rights laws, have been referenced, along with high taxes, as key factors in the exodus of business from our state. The threat of employment lawsuits and “runaway” jury awards has been cited as a reason for the curtailment of business innovation and expansion in California and elsewhere. The late liberal icon John Kenneth Galbraith once intoned the phrase “conventional wisdom” in debunking accepted truths regarding the modern economy. The conventional wisdom regarding workplace claims similarly deserves exposure, as largely myth, perpetuated as a rationale to justify employers’ failure to implement and require proper personnel policies and practices.

Competent, loyal and conscientious employees have been maligned, abused, harassed and targeted for unfair treatment, either for failure to meet unattainable work goals or challenging unfair or worse, illegal directives or working conditions, long enough. It is bad enough that an employee is terminated from his or her job because of cronyism, petty animosities, jealousy, or a desire to “silence the messenger,” rather than address evidence of corporate misconduct. Why is it necessary to “tar and feather” the employee on the way out, by unsupported accusations of misconduct, effectively stigmatizing the employee in the eyes of prospective employers, and assuring their continued unemployment ?

Employers should be held accountable for this type of egregious corporate malfeasance. The cost of “whistle blower,” sexual harassment, failure to accommodate, retaliation, and other violations of fundamental employee rights to a humane workplace are written off as a “cost of doing business.” This should not be allowed. Appropriate remedies, including measured punitive damage awards and enhanced regulatory oversight (including, where appropriate, enforcement actions by the District Attorney and Attorney General), should be taken.

The plaintiff’s employment bar has been scapegoated long enough as the primary cause of workplace claims. Employers have only themselves to blame for failing to implement and enforce policies to prevent discrimination and unfair treatment of  employees. Equally significant has been management’s failure to provide proper training, both to entry-level personnel and supervisors, to assure against abusive and discriminatory treatment of employees. Proper orientation to job duties, by qualified professionals, is essential.

Successful organizations are those with a clearly defined chain of command, written job descriptions, which clearly define each position’s essential duties, and written progressive discipline policies that are consistently and evenhandedly enforced. Equally important are written policies requiring fair compensation, with pay increases tied to merit, and with appropriate incentive-based components. Annual performance evaluations, based on clearly defined goals with ratings based on objective performance criteria, should be required for most employees.

There would be fewer workers’ compensation and disability claims if management would not only take the time to train its employees in ways to prevent workplace injuries, but implement measures to assure against the assignment of excessive workloads, harassment, and other inappropriate conduct by supervisors and coworkers. Steps should be taken to assure professional counseling and inquiry regarding contributing factors to complaints of “job burnout.” Employees should be encouraged to report the first symptoms of physical or mental health related complaints that could lead to disabling injuries, so that appropriate remedial measures can be taken. Filing a workers’ compensation claim should be encouraged only after affirmative efforts to effect reasonable accommodation have been unsuccessful. Employees with pregnancy, child care, or other compelling personal needs should be allowed appropriate accommodations, including, where feasible, working from home.

Where there is evidence of executive or management malfeasance against subordinate employees, corporate boards should require an objective investigation, preferably by an outside firm, while assuring fundamental due process to the accused. Whistle blowers or other employees determined to have been unjustly accused of misconduct or poor performance should have their names publicly cleared and should be reinstated with full back pay and additional compensation for reputational harm. Appropriate disciplinary action, up to and including termination, should be taken against the perpetrator.

Measures should be taken, particularly from the inception of a start-up company and at the time of any corporate acquisition, as well as periodically in any organization, to assure against the hire and retention of “workplace bullies.” The lack of statutory protection for victims of harassment and abuse by supervisors, absent a motivation prohibited by state or federal anti-discrimination laws, is a continuing iniquity. Employers should implement appropriate corrective counseling measures and discipline, including termination of such personnel.

The mark of effective leadership is requiring an unwavering commitment to integrity in all aspects of the organization. Professionalism should be required at all levels. The adoption of the measures and precepts outlined above will do much to increase productivity and workplace morale, and validate the stewardship of chief executive officers and other members of the executive team. A demonstrated commitment to these standards will enhance employee mental health and productivity, and substantially reduce the likelihood of employment claims.

William M. Crosby is a founding partner of Barnes, Crosby, FitzGerald & Zeman. For over 30 years he has specialized in employment law, primarily representing employees in discrimination, sexual harassment, wage and hour claims, and wrongful termination based upon breach of express and implied contract and public policy claims.

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