The Best Defense is a Good Offense: Avoiding and Defending Workplace Litigation

Having proper policies and procedures in place can help avoid costly and time-consuming litigation. This article provides some fundamental strategies company’s can use to avoid and defend a potential lawsuit.

During the interview process, there are certain items you can and cannot ask a potential employee — you may request a resume, check references and graduation dates, but you may not ask questions relating to a person’s age, race, national origin, disability, sexual orientation, arrest record, military status or other protected classes. You also may not inquire about an applicant’s place of birth, citizenship status or driver’s license (unless this is related to the job requirements).

While it is important to know an applicant’s qualifications, the best way to ascertain his or her merits is to have a job description that sets forth essential job functions. Describe the job (specific duties, hours, overtime required, travel, etc.) and ask if there is any reason the applicant could not perform the job duties. If an applicant states he or she cannot work required overtime, you now have a valid basis upon which to defend a potential claim.

Upon hire, ensure you have proper documentation in place. Under the Wage Theft Prevention Act, there are certain notice requirements to new employees that, if found to be in violation, would result in hefty penalties to the employer. The New York State Department of Labor outlines these requirements on its website ( The Fair Labor Standards Act sets forth minimum wage and overtime requirements. Keep personnel files up to date with timekeeping records, wage information, vacation time, leave time, sick days, promotion/raise information and performance evaluations. This is key to defending wage and hour cases, overtime issues, employee/independent contractor concerns and unemployment claims.

A detailed employee handbook is a vital and necessary tool in defending any type of employment claim. After hire, all new employees should attend an orientation which includes the dissemination of an employee handbook that should include a complaint procedure, an outline of benefits and an acknowledgment form signed by the employee affirming receipt and review of the handbook. This is crucial in defending against harassment, discrimination and retaliation cases. Employee handbooks should clearly state that the handbook does not constitute a contract of employment, and employment is at will. Handbooks should also contain Internet/email policy, employee conduct policies, confidentiality of information (HIPPA), progressive or immediate discipline policy, as well as fringe benefits.

All supervisors and managers should be trained and attend seminars on discrimination and harassment and know what constitutes retaliation. Employees should sign a statement that they attended the seminar and understand the office policy. Companies may be able to avoid responsibility for managers or supervisors whose acts are outside the scope of their employment. Written materials are absolutely necessary to construct a defense or avoid litigation.

Spend time annually or semi-annually to write and rewrite job descriptions and performance evaluations for all employees. Document any issues or areas in need of improvement and be specific. Follow up on any concerns in a timely manner. Document whether a raise is merit-based or not. Document whether bonuses are discretionary or not. This is vital to defending the claim of “why was I getting bonuses/raises if I was not a good performer?” If job performance is an issue, document it and talk to the employee about the issues. While you are not required to give a reason to terminate in New York, if you do give a reason, be honest.

If there are medical issues, communicate with the employee and determine if you can reasonably accommodate his or her need. If you can, do it. If you can’t, make sure you have medical documentation from the employee’s physician certifying what the needs are — time off, for example. The defense to any claims relating to disability or leave request is whether you had a dialogue with the employee and were able to reasonably accommodate his or her need.

Finally, it is best to periodically review the enforceability and notice periods of employment and restrictive covenants with your legal counsel — and especially if you are going to terminate an employee with or without cause. If you hire someone with a non-compete or confidentiality clause, make sure that you review the agreement and that your new employee is not in a position that would violate the agreement. It is recommended to have a policy in place advising employees that they are prohibited from using any prior employer’s confidential information.

These are some basic protections for any employer medical practice. Additional safeguards can be taken for specific needs of employers.

Article originally appeared at: MD News May/June 2015, Central New York Edition