(24) Top Ten Ways to Improve Your Workplace and Avoid Litigation

When I first read Natalie Wyatt-Brown’s 10 recommendations below, I thought they were perfect for The Security Minute. Her article is republished word for word below. I have added a short assessment afterwards.

—Ray Bernard

Top Ten Ways to Improve Your Workplace and Avoid Litigation

by Natalie Wyatt-Brown

There is little difference between avoiding litigation and effectively managing the workplace. The bottom line is that happy, contented employees rarely sue. By following these ten recommendations, you should have fewer management problems and less litigation.

In the rare situation where litigation simply cannot be avoided, following these key points should improve your chances of successfully defending a lawsuit.

10. Don’t Make Promises You Can’t Keep

You must manage employee expectations.  For example, if your employment handbook has a progressive discipline policy, you should follow it. Don’t make promises like, “you have a job here until you retire,” or “of course you will get that promotion.” You will be surprised at what employees remember about even casual remarks—in the employment arena, there is no such thing as an empty promise. Disappointed employees often become plaintiffs.

9. Mind Your Own Business

Do not have inappropriate discussions about people’s personal lives, hug employees, or otherwise violate people’s sense of personal space and boundaries. Don’t ask applicants or employees about their religion, marriage, plans for children, etc. It is also inadvisable for managers to “get personal” with subordinates, by inviting them over to their house, or out for lunch. It does NOT mean, however, that an employer should not check employee emails and computers for inappropriate content.

8. Cooperate

Employers should try to work with their employees, rather than against them.  Treating employees as the enemy is a sure-fire way to lead to litigation.  If an employee has a problem, try to solve it.  If he or she needs an accommodation for a disability, work to find a solution. If an employee complains about unfair treatment or sexual harassment, take it seriously, investigate, and deal with the problem.

7. Don’t Tease

Don’t make fun of other people’s age, gender, sexual preference, race, disability, etc.  Similarly, singling out a particular employee for teasing, joking and pranks can lead to problems.  While it is fine to have a relaxed, casual atmosphere at work, sometimes joking can go too far and managers must be careful to keep any teasing and joking within acceptable limits. Employers should also be responsive to employee complaints about such conduct—it is not acceptable to tell the complainer that he or she “just needs to learn how to take a joke.”

6. Use Your Words

Tell employees how they are doing!  Often, particularly in Minnesota, employers want to be “nice” and don’t want to criticize employees.  Sometimes, however, you have to be cruel to be kind.  Which is worse—telling an employee where he or she is falling short and giving them a chance to improve, or simply terminating them without a word of warning?  Constructive criticism is a valuable tool—both from a management perspective and for litigation avoidance. If you tell employees what is wrong, they may change their behavior.  And, the employee terminated with no warning is more likely to sue, and your defense will be difficult with no documentation supporting your position.

5. Be Fair

Employers should be consistent when dealing with employees.  If one employee has five tardies, they should receive the same discipline as any other employee (in a comparable position) with five tardies. Don’t play favorites, even when one employee is considered to be a “star” or a better performer than his or her coworkers.  Jealousy can be a very destructive force.

4. Don’t Retaliate or Be Emotional

There is nothing more upsetting for a manager than an accusation of discrimination or other unfair treatment by a subordinate.  Under the law, however, employers must resist the instinct to fight back.  Under a recent Supreme Court decision, Burlington Northern v. White, it is now much easier for employees to prove they suffered an “adverse employment action,” one of the elements of proving a retaliation claim.  Under the new standard, a negative performance review, job transfer, or even being excluded from the supervisor’s weekly poker game can be considered adverse actions.  Therefore, an employer who receives a complaint of discrimination must be particularly cautious in subsequent dealings with that employee.

3. Follow the Rules

Employers should follow their own policies.  If an exception is to be made, it should be carefully considered and the reasons for making the exception should be documented.  Plaintiffs will often try to prove that a particular decision was a pretext for discrimination by examining whether the employer has followed that policy in the past. Consistent treatment can avoid such problems.

2. Be Honest

Some managers are uncomfortable with confrontation, so instead of telling an employee the real reason for her termination (performance reasons, for example), make up a less painful explanation. In order to prove discrimination, the employee must show that the reason given by the employer is a pretext, and the real reason is discrimination.  The primary way to do this is by showing that the reason given by the employer was false. Do not hand a potential plaintiff such a weapon by trying to avoid hurting her feelings. While it may feel uncomfortable, telling the truth from the start is ultimately less of a headache.

1. The Golden Rule: WWJD “What Would A Jury Do?”

Every issue with an employee has the potential to be second-guessed by a judge and/or jury.  Most jurors are employees, so when they decide employment cases, they look at it from their own perspective—“how would I have wanted to be treated?”  Try to step back and be objective about the decision you are making—would this seem fair to someone else looking at it two or three years later?


There are no perfect solutions to managing employees—they are human beings, and as such think and act unpredictably.  On the other hand, using common sense, fairness and even a little empathy can go a long way to avoid problems in the workplace.

    Natalie Wyatt-Brown
    Oberman Thompson & Segal, LLC
    120 South Sixth Street
    Suite 850
    Minneapolis, MN  55402

    Tel: 612.217.6448
    Fax: 612.217.6444
    Email: nwyatt-brown@otslawyers.com
    © 2007 Oberman Thompson & Segal, LLC

Easy Performance Management Assessment

In the current economic downturn, organizations would benefit from giving close attention to performance management, to ensure that all personnel are making a valuable contribution. Now is the time to review current practices, to identify weak areas and follow up to make sure that proper and effective procedures are in place to minimize any potential legal issues.

With regard to management practice, any good practice usually falls somewhere in the list below.

From best rating to worst, any practice can usually be identified as:

  • In manager/supervisor handbook or leadership guide, included in training, and well-followed by personnel
  • Written policy that is followed 50% or more of the time
  • Generally common practice but not written policy
  • Written policy but not managed; is followed less than 50% of the time
  • Not written policy or general practice
  • An item on which there is a bad track record

You can use the bullets above to perform an initial assessment for yourself and/or your department or your organization. You can use the results to prioritize business improvement in this area. Done well, follow-up action should result in lower risk and higher employee satisfaction and production.

Best regards,
Ray Bernard

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