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Litigation: Federal

Author: Michael C. Jacobson, XpertHR Legal Editor

Summary

  • HR professionals have a crucial role in employment litigation, often required to act as an ambassador between outside counsel and the employer and often tasked with providing crucial information, documentation and access to employees. See Employment Litigation, Generally.
  • Employers can take significant steps to avoid and/or prevent litigation by maintaining good relations with their employees, properly documenting their personnel files and conducting thorough, well-documented investigations when allegations of misconduct arise. See Avoiding and Preventing Litigation.
  • Employers must take steps to comply with the provisions of their Employment Practice Liability Insurance policies, otherwise they risk losing the benefit of insurance when they need it the most. See Employment Practice Liability Insurance.
  • Employers are well advised to cultivate and enforce a comprehensive document retention policy to ensure that legally sensitive materials are handled with due care. See Document Retention.
  • When misconduct has been brought to light or the employer discovers potential misconduct on its own, it is often forced to consider whether to retain counsel. See Deciding Whether to Retain Legal Counsel.
  • If litigation becomes unavoidable, HR professionals still have a crucial role to play in assisting in-house or outside counsel to position the employer to cultivate the best defense against litigation. See The Role of the HR Professional During Pending Litigation.
  • Once litigation begins, the HR professional's role may expand beyond that of a mere ambassador. Indeed, the HR professional may be called as a witness to testify during a deposition or even at the time of trial. See Providing Testimony.
  • When the EEOC is alerted to a potential claim, it becomes a party to any ensuing settlement, conciliation effort or even the resulting litigation. HR professionals should know how to navigate through a case being prosecuted by the EEOC. See EEOC Investigations and Litigation.
  • Most states permit lawsuits for negligent hiring, meaning the employer has allegedly failed to properly conduct a background check pertaining to a particular employee who then injures a third party. See Recruiting and Hiring.
  • Employers should be careful in classifying their employees as employees or independent contractors as they are increasingly faced with potential lawsuits under the Fair Labor Standards Act (FLSA). See Compensation.
  • Similarly, employers may be exposed to liability under the Employee Retirement Income Security Act (ERISA) if they fail to provide appropriate benefits to their employees. See Benefits.
  • When employers decide to author and retain performance evaluations, they should be cautious that the evaluations of employees are fair and accurate and that they do not defame or otherwise injure the reputation of employees unnecessarily. See Performance and Discipline.
  • The most common types of employment litigation suits arise from either unlawful discrimination in the workplace or unlawful harassment in the workplace. See Harassment and Discrimination.
  • Employers may be obligated to conduct investigations and to take effective remedial action when employees make allegations of hostile work environments. See Hostile Work Environment.
  • Employers may also be liable for injuries suffered by employees in the workplace or for their failure to properly accommodate disabled employees. See Workplace Injuries and Disability Claims.
  • Employers may face liability derived from contractual disputes with their employees, such as by the terms of restrictive covenants or separation agreements. See Contractual Disputes.
  • Finally, employers may face liability based on the details or nature of their recommendations on behalf of former employees. See Defamation.
  • Some employers may be bound by rules of civil procedure which require them to pay compensation to employees within a certain period of time following a settlement agreement and the receipt of a proper and court-approved release from the employee(s). See Settlement Agreements.