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Ancient Guidance Can Still Serve as a Guiding Light in Employment-Related Decisions

By Beth A. Sebaugh, Esq.

As we approach the beginning of another year, it is helpful to remember that the climate for the "work-place" has continued to evolve, not only in terms of technology and flexibility of work locations, but most certainly with respect to governing employment laws and regulations. Application of time-tested principles and basic common sense in a technological updated fashion can go far in avoiding common pit-falls that lead to large numbers of employment claims and lawsuits.

The time-tested advice of "doing unto others as you would have them do unto you" is certainly appropriate in the employment arena, regardless of the size of the employer. After all, unresolved disputes of fact in employment situations are most generally headed to one decision-making body, that is a jury, if the dueling parties cannot ultimately come to terms voluntarily. Jurors routinely demonstrate that they need little to no advice in determining whether prohibited discrimination has occurred or whether an employee was treated "fairly", i.e. in a legally non-discriminatory manner with respect to the disputed employment action. Regardless of the jury's determination, the process is costly for the employer.

Practically speaking then, every employment action, BEFORE IT IS ENGAGED IN BY AN EMPLOYER, needs to be weighed as to whether it is "legal" and whether a jury of eight disinterested individuals would view it as appropriate under ALL of the attendant facts and circumstances.

Time-tested principles that go far in persuading a jury include:

  1. Employee/Personnel Handbook that clearly reflects employer's expectations and signed/electronic acknowledgement from ALL employees of receipt/reading of same
  2. Clear reference and access to written/electronic policies and procedures to which an employee is expected to adhere and signed/documented acknowledgement from every applicable employee of receipt and reading of same
  3. Written/electronic warnings (dependent on se-verity of infraction) and an opportunity to correct the behavior, distributed consistently and evenly to every employee who has engaged in the unacceptable behavior
  4. Documented progressive discipline (suspensions with/without pay) applied consistently and evenly to every employee who repeats the unacceptable behavior after having received warning(s) to refrain from same
  5. Diligent adherence by the employer to the expectations, policies and procedures contained in the employer's publication(s) and adherence to the applicable laws of the jurisdiction incumbent upon the employer

In my trial experience, I have found that jurors are looking to satisfy themselves that the employee was indeed given a "fair shake", was treated the same as similarly situated employees, and that the employer has come before them with "clean hands". If an employer can demonstrate the above, fact finders will tend to uphold a fair-minded employment decision even if it resulted in the loss of employment for the suing employee. Generally, ALL documentary, electronic, and digital communication within the employment environment or tangential to the employment environment is "fair game" in the discovery process and, more often than not, such communication becomes "dispositive" in one manner or another in deter-mining the outcome of an employment dispute.