Employment Law Specialist Matthew Grabell: Top Ten Errors That Open Your Organization to Employee Lawsuit Liability

TENAFLY, N.J., Oct. 10, 2023 /PRNewswire/ -- Employee lawyers have a playbook they use to win lawsuits.

"Win or lose, defending a lawsuit by a disgruntled former employee with an attorney is costly, time-consuming, and affects all aspects of an otherwise thriving business," says Matthew Grabell, author of The Employee Lawyer's Playbook: The Top-Ten Mistakes Employers Make That Plaintiff Attorneys Seek To Exploit (2023, Indie Books International).

Grabell is a seasoned employment lawyer and trainer. He is the managing partner of the Law Office of Matthew Grabell and CEO of Employee Relations Solutions. He has been practicing employment law for over 27 years, primarily representing employees in claims of wrongful discharge, discrimination, harassment, and retaliation.

"At many organizations, the most common fear among executives is an employee lawsuit," says Grabell. "The number of employee filings each year continues to be high with no sign of slowing down."

Grabell's book provides a glimpse into the employee attorney's playbook and shows employers how to avoid the top ten errors that expose an organization to liability:

1. Unfamiliarity With Policies And Procedures. A lack of proper training, including unfamiliarity with company policies and procedures and the law in general, is just one of the ten most common errors described in this book so that you can easily avoid them and reduce the risk of an employee lawsuit.
2. Erroneous Or Nonexistent Documentation Of Personnel Decisions. Another common error is erroneous or nonexistent documentation of personnel decisions. Grabell likes to say, "If your personnel decision is not in writing, it didn't happen." Suppose you were a judge and a witness/supervisor told you that an employee was an underperformer. Wouldn't that testimony be more credible if it were supported by contemporaneous documentation that matched what you were being told?
3. Performance Review Puffery.  In numerous depositions of various supervisors, when Grabell asked them to explain how his client was terminated for poor performance when they had rated them highly in their most recent performance reviews, he was told "I was just trying to be nice in the review" or "I wanted [the employee] to get his year-end bonus." Whether true or not, these explanations create what lawyers call a genuine issue as to a material fact.
4. Inadequate Response To Initial Complaint. It takes a lot of courage for an employee to talk to their supervisor or HR about what they perceive to be illegal behavior. All they want is for their concern to be properly recognized and addressed. However, all too often, the response is something similar to: "Get used to it and get back to work" or "I'm not your babysitter."
5. Inconsistent Statements In Response To A Claim. State agencies and the federal Equal Employment Opportunity Commission permit an employee to file a complaint of discrimination, harassment, or retaliation, free of charge, without an attorney. Responses to these complaints must be consistent with a response to a lawsuit.
6. Padding The File With Too Much, Too Late. "Too much, too late" refers to a supervisor who has made a decision to terminate an employee for reasons, possibly illegal, that are not supported by documentation. The supervisor, therefore, creates documents during the months just prior to the termination to try to justify the decision.
7. Quick-Trigger Termination. A quick-trigger termination is another common error. Too often, a supervisor fires an employee on the spot just after a disagreement or altercation with that employee. However, because the supervisor failed to notify HR prior to the snap decision, they have no knowledge of the potential risks associated with the termination decision
8. Failure To Apply Company Policy In A Uniform Manner. One of the most common errors by employers is failing to apply company policy in a uniform manner. Regardless of what the policy is, if one employee is treated differently than another for the same violation, you can be sure that the employee who was treated less favorably will wonder why and will likely seek answers from an attorney.
9. Texting And Social Media Errors. In the last decade, the use of social media, emails, and texts in the workplace has exploded. This is especially so given the increase in the number of employees who work remotely. Electronic communications between supervisors and their employees are discoverable in litigation.
10. Lack Of Proper Investigation. Once an employee makes a complaint to HR, no matter how trivial the complaint appears, an employer has a duty to conduct a prompt, thorough, and objective investigation.

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SOURCE Matthew Grabell