Q: How can my club prevent Employment Practices Liability losses?
A: Employment Practices Liability (EPL) is an increasingly significant area of law that deals with alleged employer misconduct, including sexual harassment, wrongful discipline, wrongful termination, discrimination and failure to promote an employee, among other actions. EPL litigation can harm your club’s reputation and bottom line, especially as employment-related lawsuits have drawn increased visibility in the public sphere. As employers face more legal obligations to their workforces, clubs should consider the following best practices to prevent EPL losses.
Hiring Process:
- Develop an employment application.
- Require all applicants to complete and sign the application form.
- Develop and update job descriptions.
- Use only questions that are job-related.
- Exercise caution in reference checking.
- Provide a written offer of employment.
Personnel Policies/Employee Handbooks:
- Written material should contain a clear disclaimer of any promise of job security.
- Make it clear the handbook and other written policies are not intended to be an employment contract.
- An employment “at-will” statement should be clearly defined, if the employer maintains an at-will employment relationship.
- Use clear and concise language.
- Specifically allow for flexibility and modification.
- Include a handbook acknowledgment form.
- Periodically review, update and distribute the handbook to employees.
- Be alert to any changes in law that may affect handbook provisions.
- Have all written materials reviewed by an attorney.
Employee Evaluation:
- Conduct regularly scheduled performance evaluations.
- Promote meaningful evaluations to help avoid future surprises.
- Use the evaluation as a motivation tool.
- Conduct supervisor training to reinforce familiarity with the evaluation process.
- Have another manager review all evaluations in order to prevent bias.
- Implement a uniform rating system that is job related.
- Give the employee an opportunity to respond to the evaluation.
- Require supervisors to identify specific performance goals as part of the evaluation process.
Disciplinary Action:
- Properly draft documentation.
- Assume that all documentation can end up in the courtroom.
- Tell the whole story and state expectations for future performance.
- Clearly state consequences of future violations or not meeting performance expectations.
- Label all documentation as “confidential.”
- Adhere to disciplinary standards and apply them uniformly; oral warnings, written warnings, suspension and termination.
Termination:
- Adopt a well-thought-out termination policy with a focus on fairness and consistency.
- Respect employee’s dignity throughout the termination process.
- Do not make “on the spot” decisions/actions.
- Designate a single person to review all termination decisions.
- Be aware that post-termination conduct can lead to defamation, emotional distress or deliberate interference with the employee’s pursuit to become gainfully employed.
Layoffs:
- Document all aspects of the layoff, including criteria used during each phase of the process. Reduction goals should be stated in numbers not in savings.
- Decision-making should be made by two or more management personnel.
- Assume that all communication regarding the layoff is discoverable.
- Reductions should apply across the board and should not favor certain types of employees.
- Review the handbook, written policies and procedures, employee benefit information and appropriate laws to ensure smooth handling of all issues relating to the layoffs.
Tom Walker is area executive vice president of RPS Bollinger – Sports & Leisure. He serves as the program manager, with oversight for all operations, sales, financial performance and key broker, industry association and carrier relationships. He has served on several club boards and committees, and is a recognized authority on club insurance issues. He can be reached at 800-446-5311 (ext. 8098) or [email protected].