The Employment Experience

Why Employees Sue Their Employers

May 23, 2022 Karly Wannos Season 2 Episode 28
The Employment Experience
Why Employees Sue Their Employers
Show Notes Transcript

I have litigated many employment lawsuits over the years and can typically pin point the reason why the employee decided to sue the employer, rather than just moving on. Here are the top reasons why:

1. The employee was terminated but wasn't aware he was doing a bad job at work.
2.  Employee didn't know why he was fired
3.  Employer gave a negative reference to the new prospective employer
4. Other people did the same things and got away with it
5. Toxic managers
6.  The employee was forced to quit because of the toxic environment
7. Things changed after they complained to HR.

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So what exactly causes an employee to Sue their employer? And I'm not talking about the types of laws that employees can bring claims under, but what is it that pushes the employee over the edge? Pushes the employee to go contact a lawyer to Sue the company. Typically lawsuits are filed after the employee is terminated.

But employees can still Sue the company while they are still employed. And the difficult thing is, is that companies can't retaliate against an employee for suing them. So you can't terminate an employee for filing a lawsuit against your company. You might be stuck in the unfortunate position of having someone who works for you, who has also sued you.

This is a difficult situation to be in, and you should have legal counsel walk you through this process. But today we are talking about what makes the employee file a lawsuit and go find a lawyer. We are discussing that. And more on this week's episode, you are listening to the employment experience podcast.

I am your host employment attorney Karly Wannos. This podcast is focused on providing valuable educational information, best practices and actionable tips. So your workplace can better work for you. Each employment experience episode is a mini educational training or informative interview designed to help businesses learn about important employment related strategies.

If you are a business owner or human resources, professional, who wants to stay on top of issues affecting your business and employees, then you are in the right place. Let's get to work. The information in this episode is for educational purposes only. Please be sure to consult with legal counsel before making important employment related decision.

I talk a lot about terminating employees and preventing lawsuits from an employment law perspective, how to avoid legal claims, such as discrimination, retaliation, harassment, but how does a company even get to that point to where they're facing a lawsuit? How does the company get to a point where the employee is even considering to Sue them in the first place?

The employee you just terminated? Had to have something in them to go see a lawyer which resulted in the lawsuit. The more cases I have litigated, the more I see a pattern of where employees typically Sue and when they will just move on from the job, there seems to be a common theme amongst all of the cases.

So in addition to knowing the legal basis, the legal grounds for the lawsuit, it is important that employers are also aware of what makes an employee litigious. So you can consider making changes in the workplace environment to avoid these types of situations. And as you know, many times, this can be avoided.

The first reason why employees Sue is when they're terminated. They didn't know that they weren't doing a good job. Many employees are terminated for performance. And the first thing they say is they didn't know the rules, or they didn't know there was a problem in the first place. So this goes hand in hand with documenting and counseling the employee.

When there's a performance issue, you never want it to be a surprise. And this might be a topic for another podcast episode, but when it is a surprise, then that means that the management team might not be supervising properly or might not be managing correctly. So when poor performance is a surprise, you catch people off guard.

And when you catch people off guard, then this leads to other issues like questioning, why they were fired. And when they question why they were fired, they might assume that it was. Other reasons, unrelated to poor performance, because remember, this is the first time that they're hearing about poor performance in the first place.

So the first way to potentially avoid employment lawsuits by your employee is to let them know how they're performing in their job. Are they, if they're doing a good job, let them know if they are messing up and not properly performing have a conversation, issue, a written warning, do whatever needs to be done so that they lines of communication can be open.

So they are aware of the poor performance or the issues that they need to correct. And how they can go about correcting.  okay. Number two. And this is kind of relates to the first one is the employee doesn't know why they were fired and when you're terminated and you don't know why, and you can't think of any reasons why you start to come up with other potential reasons that might not be accurate.

It's human nature and very common for employees not to think that they did anything wrong, especially when something like poor performance was never address. So basically if the employee is not aware, they're doing a bad job and they don't know why you fired them, they aren't going to assume that it was something on their part that could have get been corrected.

They are going to assume it must be someone else. Right. And the reason must have been that this person had it out for you. If the supervisor is not similar, if they are different. Then more times than not the employee's gonna claim that this other person had it out for them because of their protected class.

So either male or female Hispanic or African American or age, they were too old, or they were too young. Again, this arises from employees not knowing why they were fired in the first place. In a prior episode, we discuss whether or not you need to give a reason when terminating an at will employee. And the law says, no, you don't have to give a reason and you don't even have to have a reason as long as it's not discriminatory or retaliatory.

And I said, even though you don't have to give a reason you might want to, because people start making assumptions, which leads to discrimination claims. So in order to avoid this, make sure to. Discuss potential performance issues. So it's not a surprise when the employee is terminated, when the time comes that they need to be terminated, they know the reason they're being, let go either.

They had complaints by other coworkers that were never corrected, or they kept making the, the same mistake over and over again. Or they never arrived to work on time and were always late at the time. You need to terminate this employee for not correcting the issue. There's gonna be more of a chance that they're going to be aware of the actual reason, because you've talked to them about it before, and you don't have to tell 'em, it's just not working out, which can raise suspicions as to the real reason, because the real reason, which is the attendance or the poor performance.

Would have already been discussed. The third reason employees Sue their employer is based upon a negative reference check when they leave. So this is how this plays out. After you terminate an employee, they leave to go look for another job. The new job will likely call you as the former employer as a reference.

now you have just terminated this employee. So the honest thing to say, when the reference check contacts the company is to say something along the lines of the person had poor performance. He was not a good employee, but here's why you might not. Want to go down that path in Florida, there is a claim called OUS interference with a business relationship.

And if you, the prior employer give a negative reference check, which causes the new company not to hire your former employee, then you might be on the hook for OUS interference with their perspective business relationship. This is why best practices dictate to give the last job title and dates of. Only and have that be a policy of your company that's written into the handbook.

Now there's a tricky part here. When they ask if the person is eligible for rehire, if they were terminated per for performance, it's most likely that they are not eligible for rehire, but again, be careful not to disclose this information because when you do, it's suggesting that there may have been performance issues.

It may be giving a negative reference check, which can lead to the OUS interference. The next reason employees Sue their employers is if they claim that other people did the same thing and they were the only ones written up for it, or they were the only ones terminated for it, essentially they're claiming that they were singled out and discriminated against when others were not disciplined the same way.

So again, this is a key component and a discrimination claim. Employers should. Everyone the same. According to the company rules, don't allow some employees to get away with arriving late. When you're going to require certain employees to arrive on time. When you treat people differently or you apply the company policy differently to certain individuals, employees will be more likely to assert discrimination type.

The next reason companies get sued by their employees is because of bad managers or toxic managers. So in general, people, employees don't like managers who rule with an iron fist that do it because I said so mentality, this creates a lack of communication, which creates turnover and also a toxic environment within your workplace.

people don't feel heard or appreciated, and they will eventually Sue because they do feel wronged by this manager who was so toxic and who wouldn't listen to them. As an aside, as an employer, you generally don't want this person leading your team. It's not going to be good for the morale of the company, but with regard to employee lawsuits, a lot of times the employee, like I said, feels wrong.

They need to get back at this manager and correct the situation which leads to lawsuit.  the next reason employees file lawsuits against their employers is they claim that they were forced to quit because of a toxic work environment. And this goes hand in hand with the prior one, the bad or toxic manager, but if an employee feels that they are not giving a fair opportunity, Or given a fair chance or opportunity for growth or that there are certain individuals who are making inappropriate comments and getting away with it.

And no one's doing anything about it. The great resignation has shown us that people will not simply tolerate what they used to tolerate. So if you have bad or toxic managers or employees, this can lead to a constructive discharge claim. So. Even though you don't terminate the employee if they quit because they claim that they had no choice left, that the work environment was so bad, they had to quit.

They were left with no choice. They may be able to assert a constructive discharge claim. So again, it's important to make sure that you don't have toxic employees working in your workplace because this can be a snowball effect and lead to litigation down the. And the final reason employees Sue their employers is for retaliation.

They feel that they were retaliated against after they made their first complaint. So this is how this plays out. An employee feels like. Manager is not treating him appropriately or making inappropriate comments to him. He goes to HR to complain and HR then speaks to the manager. The manager is obviously upset that this employee complained about him upset that this employee potentially got him in trouble with HR.

So the manager retaliates against him essentially stops scheduling him for the good shifts, stops communicating with him. Doesn't give him fair opportunities. Again, this is going to lead to the employee feeling wronged and a possible retaliation claim. So if someone complains at your company, be sure to take extra care in listening and attempting to find a solution don't retaliate, don't label them as a troublemaker or a complainer.

But rather listen and actually address the issue and make sure that your management team knows to not retaliate against this employee. And that includes more than just firing them. It includes a demotion, a change in schedule. A change in hours or overtime hours, don't allow the person who the employee complained about to retaliate against them.

Because again, this is likely going to lead to a lawsuit down the road, and those are the main reasons why employees typically Sue their employers. If you can take steps to make sure that these things don't happen. I think you're well ahead of the game. Employee engagement is so important here as is transparency and consistency.

So make sure that you are implementing those as well. Thank you so much for listening and we will see you in the next episode.