This article by Hodgson Russ partner Larry Corman was originally published in the Legal Views Q&A column, July 30, 2005 edition of the Boca Raton News. Reprinted with permission.

Q: I own a medium-size business and I am interested in taking action to avoid being sued for unlawful employment practices when we decide to terminate employees. What do you recommend that I do to prevent employees from filing complaints against the company?

A: Although “you’re fired” has become part of the entertainment world’s vernacular, terminating employees remains a very serious business. Even in Florida – where the law purportedly allows employers to fire employees at will (that is, for any or even no reason) – businesses can incur substantial expenses and be exposed to significant liability if appropriate termination procedures and policies are not in place.

For example, Florida and federal statutes prohibit employers with 15 or more employees from discriminating against employees for various immutable characteristics, including race, religion, national origin, gender and disability. In addition, employees can often assert that they are entitled to protection under “whistleblower” statutes by claiming they opposed or refused to participate in practices that violated rules, regulations, or laws.

It is often said (probably because it is true) that, in America, no one can prevent another person from filing a lawsuit. Employers can, however, take steps to enhance their legal defenses so claims can be successfully opposed.

Comply with applicable laws
If you have a diverse workforce and comply with applicable laws, you can significantly reduce the likelihood of claims against your business. The law is very complicated, and you may inadvertently fail to comply with legal requirements that you did not even know existed. Among those questionable areas are wage and hour laws and compliance with the Americans With Disabilities Act.

Establish company policies, procedures
All employers should have written policies and procedures to insure that employee work issues are promptly brought to the employer’s attention and properly investigated, documented, and resolved. The written policies and procedures must be communicated to employees to provide clear notice of the policies and the steps that should be taken if the employee has concerns that need to be brought to the employer’s attention.

Document problems in performance
Preparing and maintaining accurate records regarding employee performance, including shortcomings, can be very time consuming. But maintaining records establishing weaknesses in employee performance and confirming that the employer notified the employee about the issue can greatly assist an employer defending against a subsequent complaint.

Enforce policies
The existence of a policy by itself is not a legal defense to an employee claim. When confronted with a situation that potentially violates an employee’s legal rights, an employer is expected by the law to reasonably respond and appropriately address the issue. At a minimum, this initially requires the employer to thoroughly investigate and document the steps taken. Ideally, the employer implements a reasonable response that solves the
problem.

Don’t Retaliate
Sometimes when employees are aware that complaints about their job performance exist, they may raise discrimination complaints against the pertinent supervisor. By raising a discrimination issue, the employee can subsequently claim that any adverse action the employer takes against him or her was retaliation because the employee made a discrimination complaint. There have been reported cases where employees have prevailed in employment lawsuits when the employee could not prove unlawful discrimination but did establish that the employer unlawfully retaliated against the employee for raising the discrimination issue.

Utilize legal counsel
There are numerous other actions employers can take to enhance risk management and reduce employment-liability exposure. Having legal counsel review existing policies and procedures and participating in supervisor training can help employers avoid or reduce the substantial costs incurred in dealing with employment complaints.

Larry Corman is a partner in the Business Litigation Practice Group at the law firm of Hodgson Russ LLP in Boca Raton. He may be reached at lcorman@hodgsonruss.com.