Getting sued by an employee is never a position a company wants to find itself in. Lawsuits are expensive, time-consuming, and can damage a company's reputation. However, sometimes employees feel their only recourse is legal action, especially when it comes to attendance and leave issues. If your company ends up on the receiving end of a lawsuit from an employee over attendance problems, here's a look at some of the issues to consider and steps to take:
Evaluate the Lawsuit
The first thing your company will want to do is carefully review the employee's claims in the lawsuit. What exactly are they suing over? Are they claiming discrimination, failure to provide reasonable accommodations, retaliation, breach of contract, or violations of leave laws? The specifics here are important, as they will determine how to mount your defense. You'll want to consult with your legal counsel to evaluate the merits of the employee's case and your company's exposure. It's also critical to gather all documentation related to the employee's attendance history, any prior disciplinary actions, and the events leading up to the lawsuit.
Review Company Policies
Another step is to take a very close look at your company's attendance, leave, and disability accommodation policies and procedures. Were these policies properly followed when it came to this particular employee? Were any mistakes or oversights made? Reviewing policies and precedent with other employees can help determine if there are any vulnerabilities in your practices that the employee may be exploiting in their lawsuit. If you find your policies were not followed correctly, take steps to remedy that immediately going forward. Making updates and clarifications can help bolster your defense.
Attempt Early Resolution
Before diving into costly litigation, it's often worth exploring if the dispute can be resolved early on. Consider meeting with the employee and their legal counsel to see if a settlement could be reached. Don't make any formal offers without your own legal team's guidance, but see if there's an opening for productive dialogue. Listen carefully to the employee's complaints and desires. Sometimes additional severance pay or benefits, a neutral employment reference, orupdated company policies are viewed as a reasonable compromise. If you can resolve matters without going to court, it will likely save substantial time and legal expenses.
Assemble Your Defense Team
Make sure you have experienced employment law counsel assembled to defend your company. They will determine the best legal strategy based on the claims in the lawsuit, your company's policies, and any evidence or documentation. They should lead the discovery process, including gathering depositions and statements from key employees. As the case proceeds, lean on your attorneys to interpret what's happening and guide the defense strategy. Having the right legal team in your corner will be critical to navigating the lawsuit.
Support Affected Managers
Managers often take lawsuits from their team members very personally, even though problems usually arise from a complex array of issues. Make sure to communicate to any manager named in the lawsuit that the company fully stands behind them. Offer reassurance about the defense strategy and provide ample legal and HR support. Be understanding if they need some time off or reduced responsibilities temporarily to cope with the stress. Lawsuits can take a heavy toll on managers close to the situation. Providing support helps ensure they remain engaged and motivated to do their best work despite the difficult circumstances.
Evaluate Company Culture
A lawsuit can also be an opportunity to take a hard look at your company culture around attendance, leave, and disability accommodation. Do employees feel pressured to come to work when ill or attend during approved medical leave? Are policies cultivating an environment of distrust or retribution? Use employee surveys, focus groups, anonymous hotlines, and outreach to assess if there are unspoken cultural issues making employees reluctant to take necessary absences. A lawsuit should trigger a broader analysis of whether employees feel psychologically safe being open about health issues without repercussions.
Strengthen Attendance Tracking
It's important that employee attendance issues are carefully tracked, monitored, and documented by both HR and direct managers. Make sure you have clear written records connected to any verbal warnings, improvement plans, or disciplinary actions related to attendance problems. Dates, specific issues, steps taken, and acknowledgement by the employee should all be noted. These help demonstrate you attempted reasonable corrective action before having to terminate employment. Review how attendance issues have been handled company-wide to identify any inconsistencies that could be exploited.
Provide Added Management Training
Provide supplemental training to managers on properly addressing attendance and leave issues with team members. Make sure they understand company policies and protocols to follow, including when to escalate HR issues from their level. Training should cover discrimination, ADA accommodation, FMLA leave eligibility, privacy of medical information, and prohibited retaliation. Ensure managers know the proper ways to document performance, disciplinary, and termination actions so problems are captured accurately. Added training helps avoid missteps that could lead to legal action.
Examine Use of Medical Inquiries
Another area to examine is how much your company relies on medical inquiries when employees are absent. Requesting details from a doctor's note or diagnosis could constitute a violation of ADA protections in some cases. Train managers on when they are entitled to require medical documentation and how to handle requests for accommodations or FMLA leave. Ensure you are only requesting appropriate medical documentation necessary to make informed HR decisions to avoid unnecessary legal risk.
Review Internal Communication
Look at how attendance issues were communicated about internally between HR and relevant managers. Were there any comments or tone in emails or messages that suggested bias, discrimination or retaliation? Any written or verbal communications that appear inappropriate could weaken your defense. Ensure going forward that communication about medical, disability, or leave issues is handled sensitively and professionally per company policies. Refresher training may be needed on proper etiquette when discussing sensitive HR matters.
Consider Policy Changes
While the lawsuit proceeds, take the opportunity to review attendance policies with a critical eye. Could any protocols or wording be improved to be more clear, fair and objective? Are managers consistently enforcing policies? Are standards reasonable compared to industry norms? Examine peer company policies that have been vetted by counsel to see if any best practices make sense to adopt. Make sure updated policies try to balance business needs with employee rights and flexibility. Changes may bolster your defense while also benefiting your workforce overall.
Audit HR Record Keeping
Take time to audit how employee attendance histories, disciplinary records, terminations, and complaints are being maintained. Are digital files like HRIS profiles and email records thorough, accurate, and appropriately accessed? Are paper documents and employee files properly secured? Proper HR record-keeping protocols are crucial when facing a lawsuit. Any gaps, inconsistencies or policy violations uncovered in your audit should be addressed immediately. Your ability to produce comprehensive documentation in your defense can be pivotal.
Streamline Leave Processes
Lawsuits are also an impetus to review and streamline current leave and accommodation processes, making it both easier for employees to comply and providing better oversight for your company. Look for any outdated forms, unclear policies, lags in response times or other issues that could hinder compliance. The goal is to have defined, efficient systems that provide paper trails showing adherence to protocols. Updated processes help demonstrate your good faith efforts to fairly address attendance problems before they reached the litigation stage.
Revisit Termination Practices
Unfortunately, sometimes attendance issues do lead to the need to terminate employment. Make sure your company follows consistent, thorough and legally compliant practices when termination is required, including providing warning letters, final notices, and details on appealing decisions. Refresher training for both HR and managers is wise. You want to be certain you can show the employee was informed about expectations, provided chances to improve, and made aware termination was imminent if issues were not corrected. Following proper protocols is key.
Don't Retaliate
It's critical to caution both HR and managers against any retaliation once an employee complaint or lawsuit is initiated. Any sudden disciplinary actions or changes to the employee's role or working conditions could constitute illegal retaliation, even if justified on other grounds. Be extremely careful and defer any necessary actions until you've consulted with counsel. Likewise, instruct employees not to treat the individual any differently and to avoid commenting on the lawsuit. Taking the high road helps protect your company both legally and reputationally.
Seek Mediation or Arbitration
If a lawsuit does progress to trial, companies today often first try alternatives like mediation or arbitration to resolve disputes. Mediation involves a neutral third-party trying to broker a compromise solution and avoid the expense of drawn-out litigation. Arbitration goes a step further by having an arbitrator hear arguments and render a binding decision. Both options usually cost significantly less than a full court case and allow the dispute to be handled confidentially. While your legal team will advise if these options make sense, they are worth considering before investing in a full trial.
Reflect on Lessons Learned
Finally, once a lawsuit reaches resolution, be sure your company takes time for proper examination. What lessons about your policies and practices can be gleaned? How can you avoid similar issues in the future? Use the lawsuit as a difficult learning experience to improve as an organization. Reflecting on the situation with humility and adapting accordingly is the best path to becoming more legally compliant, equitable, and employee-friendly over the long haul.
Facing an employee lawsuit over attendance issues is never easy. However, by taking proactive, thorough steps in your defense strategy, reviewing your policies top-to-bottom, focusing on employee communication and support, and looking for potential silver linings, your company can navigate the challenge effectively. With proper legal guidance and a commitment to improvement, a lawsuit can actually make your company stronger and better positioned for the future. While the process may be painful, you can demonstrate leadership under pressure and uphold your values. That builds confidence in management, trust in HR policies, and goodwill with employees who depend on attendance flexibility. With care and diligence, your company can get to the other side of a lawsuit with enhanced unity, wisdom and compassion.
