Most employers know that what they say to and about employees can get them into as much trouble as what they do – and sometimes more. Observing a few basic guidelines such as those below will help minimize potential liabilities on a number of fronts.
- Honesty truly is the best policy. Tell the truth. Besides being an absolute defense to defamation (an increasingly popular workplace tort), honesty wins trust, both on the job and in court.
- Avoid making promises you may not keep. Even “at will” employment can be transformed into a “contract” by means of a promise. Employee handbooks are often full of promises and must be either followed or changed. If a handbook is used, be careful about what you include and how you say it. For some employers, a handbook may not be necessary at all.
- Temper your praise. You may think an employee is a superstar, but your opinion and/or his performance may change very quickly. An excessively exuberant performance review always raises eyebrows if an adverse action is taken against the employee later. Particular job performance or conduct problems should be noted. Even if you think a problem will go away, it may not – and explaining an unrecorded problem to justify a subsequent adverse action will not sound credible even if absolutely true.
- Watch those e-mails. Interoffice e-mail concerning employees may not be truly confidential. Any number of people may have or acquire access to your e-mail, and you are talking to them too. More on this topic (and its connection with workplace privacy issues) in a subsequent ALERT.
- Silence is golden. Anything you say, and everything you write (including e-mail), may end up in front of a government investigator, judge, or jury and be used against you in ways you cannot now imagine.
Cook, Little, Rosenblatt & Manson ALERTS are produced periodically as a service of Cook, Little, Rosenblatt & Manson, p.l.l.c. and are intended to highlight emerging legal issues affecting our clients and friends. It is, of course, no substitute for specific legal advice.
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