Executive Counsel Blog

Corporate Counselor published an article written by R. Scott Oswald, Managing Principal at The Employment Law Group ® law firm, titled “Common Mistakes That Encourage Employees to Seek Legal Advice.” The article describes the nine “most common, yet avoidable, mistakes that can leave a company’s current and former employees disillusioned and cause them to seek out outside legal advice.”

Here are the common but avoidable mistakes:

1. Failing To Provide COBRA Notices: The Consolidated Omnibus Budge Reconciliation Act of 1985 (COBRA) requires covered employers to permit qualified employees to purchase health care coverage at group rates temporarily. Covered employers must provide notice to qualified beneficiaries of their right to purchase COBRA coverage within 30 days of the occurrence of a qualifying event. . . .  When employers fail to provide their employees with a COBRA notice in a timely fashion, employees become concerned and seek legal assistance in obtaining the continuation of their benefits.
2. Failing To Compensate Employee Wage Due: An employer’s failure to pay the employee’s outstanding wages and/or vacation time, to the extent required, in a prompt manner often prompts an employee to seek legal assistance in obtaining the compensation owed to them.
3. Ignoring Employee Complaints: If an employer establishes a protocol for handling its employee complaints and follows its protocol, an employer is more likely to avoid a finding of discrimination and to avoid the imposition of punitive damages. Frequently, employees simply wish to have their complaints acknowledged.
4. Disregarding Employee Discipline Protocols: Employees feel wronged when employers do not follow their own written protocols relating to discipline of employees. Employers could even revitalize problem employees by issuing detailed PIPs that clearly lay out their expectations for their employees’ conduct and the specific actions that employees may take to meet those expectations.
5. Delaying Response To Accommodation Request: Once an employer learns that an employee requires an accommodation to continue performing his or her job, the employer must engage in “an interactive process with the employee to identify and implement appropriate reasonable accommodations.”
6. Terminating An Employee On FMLA Leave: An employer’s termination of an employee who is currently using FMLA leave can be direct evidence of FMLA retaliation…. If an employer finds that it must terminate an employee who is out on FMLA leave, it should ensure that it has an independently confirmable legitimate business reason for terminating that employee. Further, the employer should be able to demonstrate that its legitimate business reason does not in any way relate to the employee’s use of FMLA leave, or the circumstances surrounding that employee’s use of FMLA leave.
7. Providing Inadequate Notice of Terminations: If an employee learns of his termination through a third party or though the employer’s work schedule (i.e., the employee is not scheduled to work), an employee is more likely to seek legal advice regarding his employment rights. When an employer decides to terminate an employee, it should provide a terminated employee with a written notice of termination as soon as is practicable.
8. Escorting Employee Off Employer’s Premises: Employees are also likely to contact an employment attorney after suffering the indignity of being escorted from their employers’ premises by security or management. . . . The employer should avoid making a spectacle of the employee’s termination.
9. Giving Negative References: Employers can push their former employees to seek legal advice if they provide negative references to potential employers. . . . Negative references may unfairly portray the employee in a negative light and later subject the employer to claims of defamation. Instead, the employer should confirm nothing more than the employee’s position, employment status and/or title, dates of employment, and salary.

The list, although not comprehensive, provides employers with suggestions that could prevent some of the lawsuits brought by current and former employees.

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