EMPLOYMENT LITIGATION PREVENTION

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EMPLOYMENT LAW 2005 How to Keep your Employees
as Assets, not Liabilities
TED SMITHCornell Smith Mierl, L.L.P.1221 S.
MoPac Expwy., Suite 330Austin, Texas
78746tsmith_at_cornellsmith.com(512) 328-1540
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EMPLOYMENT LITIGATIONPREVENTION

• TWO KINDS OF EMPLOYEES
• AT WILL FOR CAUSE
• GENERAL RULES OF THUMB
• HIRING TO FIRING
• TOP TEN WAYS TO AVOID EMPLOYMENT LITIGATION

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THE TWO TYPES OF EMPLOYEES

• "FOR CAUSE" EMPLOYEES
• MAY BE TERMINATED FOR A GOOD REASON ONLY
• "AT-WILL" EMPLOYEES
• MAY BE TERMINATED
• For Good Reason
• For Bad Reason
• For No Reason
• But.

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Not for an Illegal ReasonSuch As

• Filing personal bankruptcy
• Asking questions about overtime pay
• Refusal to engage in a criminal act
• Filing of a workers compensation claim
• Retaliation for taking FMLA leave

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UNLAWFUL DISCRIMINATION

• Sex/pregnancy/sexual orientation
• Race
• National origin
• U.S. Citizenship
• Religion
• Age (protecting persons age 40 and over)
• Disability
• Retaliation for having claimed discrimination

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GENERAL RULES OF THUMB

• KEY INTERVIEWING RULES
• If It Is Not Job-Related, Dont Ask!
• EXAMPLES
• Are you married?
• Do you have young children?
• How old are you?
• Be Consistent

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KEY MANAGING RULES

• Be Familiar With Your Personnel Handbook
• Avoid Legal Pitfalls -- Involve Human Resources /
  Legal Counsel
• Be Honest In Employee Evaluations

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KEY MANAGING RULES

• Be Consistent In Disciplinary Actions
• Document! Document! Document!
• Anything You Say Can Be Used Against You And The
  Company

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KEY FIRING RULES

• Avoid Legal Pitfalls -- Involve Human Resources /
  Legal Counsel
• Follow Written And Oral Company Policies
• Consider Progressive Discipline

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KEY FIRING RULES

• Consider Whether Employee Was Counseled
• Has The File Been Properly Documented?
• Be Considerate!
• Be Honest About The Basis For The Decision

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KEY FIRING RULES

• State Just The Facts To Avoid Slander / Libel
• Listen Politely To Their Side
• Check Company Policy Before Giving Any Reference
  Or Recommendations

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THE TOP TEN COMMON EMPLOYMENT LAW MYTHS
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• I PAY EVERYONE A SALARY TO AVOID OVERTIME.

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WE LEASE OUR EMPLOYEES SO WERE NOT LIABLE!

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SINCE SHE CONSENTED, ITS NOT HARASSMENT

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NO OFFENSE WAS INTENDED SO ITS NOT HARASSMENT
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IT WASNT A FORMAL COMPLAINT
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AT LEAST THERES NO INDIVIDUAL LIABILITY
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DOCUMENTING PROBLEMS BLOWS THEM OUT OF PROPORTION
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THE EQUAL OPPORTUNITY SCREAMER IS NOT A PROBLEM
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ANNUAL EVALUATIONS ARE A GREAT IDEA
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WE CANT AFFORD TRAINING
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NO. 1 WAY TO KEEP YOUR EMPLOYEES AS ASSETS, NOT
LIABILITIES!
HIRE A TOP-NOTCH EMPLOYMENT LAWYER TO TRAIN YOUR
MANAGEMENT!
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EMPLOYMENT LAW 2005 How to Keep your Employees
as Assets, not Liabilities
TED SMITHCornell Smith Mierl, L.L.P.1221 S.
MoPac Expwy., Suite 330Austin, Texas
78746tsmith_at_cornellsmith.com(512) 328-1540