April 28, 2022

Understanding all the legal do’s and don’ts of managing employees can be difficult. But here’s an extra incentive to avoid mistakes: If employees (or ex-employees) decide to file a lawsuit, they can sometimes sue their managers directly in addition to suing the company. And personal liability means a manager’s assets (including savings and house) are fair game for the employee’s lawyers.


Only certain laws allow managers to be held personally liable. This includes federal laws relating to employee leave, safety, gender-pay discrimination and “inflicting emotional distress.”


To reduce the possibility of personal liability, here are five important actions:


1. Never ask discriminatory questions in interviews. If you ask questions that involve age, race, gender, religion, disability and other “protected characteristics,” rejected candidates may be able to point to that as the reason they didn’t get the job.


Examples of off-limits questions: Do you have children or plan to? What are your day care plans? Do you have illnesses or disabilities? What church or social clubs are you involved in?


2. Avoid discriminatory decisions. Whether you’re working virtually or in person, workplace discrimination can be another activity that leads to personal liability for managers. Avoid making employment decisions – discipline, termination, demotion, etc. – that could be connected to those same protected categories like race, age and religion. Also, sexual harassment falls under this category and can be especially costly.


3. Take the proper steps before terminations. Never fire an employee in a quick, impulsive action for performance reasons. Managers should always give regular feedback on performance and suggest ways to improve.


Employees should never be completely surprised by a performance-based termination. When they are surprised, they’re more likely to suspect some alternative discriminatory motive and seek out a lawyer for help.


4. Take performance reviews seriously. Courts frequently see reviews and other documented feedback as evidence in job-related claims. Suppose an employee is demoted, fired or denied a promotion. Again, without the proper documentation in a review or other feedback, the argument may be that the real reason was bias.


Recent example: An employee was fired and sued for age discrimination. The company said the firing was due to performance but had no documentation. No proof, no defense, the court ruled in siding with the employee. (Lloyd v. Georgia Gulf Corp.)


5. Don’t interfere with FMLA leave. The Family and Medical Leave Act gives certain employees the right to take up to 12 weeks of unpaid job-protected leave each year for their own serious illness or to care for close relatives with a serious illness. If managers interfere with employees’ FMLA rights, they can be found personally liable. So if an employee cites one of these qualifying reasons and requests time off, reach out to HR to make sure the organization stays in compliance. Never retaliate due to medical leave requests.

Thank you, 

Your VertiSource HR Team

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