EMPLOYMENT DEFENSE STRATEGY
I send out a weekly “Thursday Thought” to help keep employers sharp. As an employer, you daily face speed bumps, hurdles, STOP signs, GO signs, and many other obstacles that obstruct the view that got your business started in the first place. Sometimes you have to spend more time managing people and navigating employment laws than actually running your business! What kinds of questions can I ask in an interview? What rights do my employees have? What rights do I have as an employer? How do I document? What should I keep in the personnel file? What do I do when an employee discloses a disability? How do I conduct a performance evaluation? How do I fire an employee? You can subscribe to this blog if you are interested in following along from hire to fire – I promise to keep it short and sweet, or at least, informative.
Today, we are talking about why policies and procedures are so important – and why you might need to put in some thought to editing that form you got off the internet. Clients often tell me how frustrating it can be to spend so much time trying to figure out how to comply with all the laws – where to look, what to write, what not to write, how to handle certain situations so they don’t come back to bite later. There is a valid reason for spending time on the front end working on what I like to call your ‘employment defense strategy’ – and that valid reason is the ever-present reality that litigation can come knocking any time.
What kinds of litigation are we talking about? Before we even get to the court room and the subject of lawsuits, employees in Oregon will usually file a complaint with the Bureau of Labor and Industry (BOLI) if they feel or think that there might be an unlawful employment practice going on. For example, perhaps an employee feels that they were shortchanged on overtime wage or rest breaks. Maybe they feel discriminated against, or perhaps they feel as though they have experienced some form of harassment. Once the questionnaire has been submitted and a formal complaint filed, a BOLI investigator is assigned and the employer has the opportunity to defend with a response to the allegations in the complaint. Through an investigation, the BOLI investigator will determine whether or not the aggrieved employee has provided ‘substantial evidence’ to prove the allegations in his/her complaint. Substantial evidence is evidence that would lead a reasonable person to believe the employee’s allegations are true. If BOLI does find substantial evidence, at this point, the employee has the option to ‘remove’ this complaint to the civil court system, or proceed on to the next step in the BOLI process. Either option offers a prevailing complainant/plaintiff certain remedies. Some of these remedies include back pay, lost wages, and even in some cases, damages for emotional distress and punitive damages. In the end, it often comes down to money.
This is why I frame my employment advice as though I was advising a team on defense strategy. Tight, legally sound fundamentals doesn’t guarantee you won’t have to face a BOLI complaint or a law suit at some point in your organization’s life – but good ‘employment defense strategy’ will help to mitigate potential damage.
Stay tuned for next week’s “Do’s and Don’t’s of Hiring” – you won’t want to miss it. In the meantime, drop me a line if you have questions.