While you can never totally insulate your organization against a lawsuit, you can take preventive measures to limit the exposure.
Seek Legal Counsel
Consult legal counsel to assist in general operations such as drafting policies, handbooks, or preparing employment contracts. Since employment law is constantly changing, consulting local legal counsel in these matters may prevent or limit the liability in various situations.
For example, always consult legal counsel before terminating an employee. Your attorney will be able to review your employment records, advise you of any
potential liability before an employment claim develops, and provide information as to how the termination should be accomplished.
Maintain Detailed and Confidential Personnel Records
By law, all organizations are required to maintain certain employment records, such as employee wages and hours worked. It’s imperative that you keep separate confidential personnel records on each employee and that the information is given only to those individuals who have a need to know.
Generally, individuals who have a “need to know” are a small group of people, such as supervisors or members of a governing board. Additionally, the information provided even to these individuals should be limited to the facts. Be aware that state laws differ as to whether employees have a right to review their personnel file, as well as what information may be reviewed. Most states limit what information employees or former employees may view and when copies of the file must be made available to the employee. Additionally, besides the basic identifying information, personnel records should include:
Any discipline or job-related problems
Apply Policies Consistently
When courts review a discrimination complaint, they often initially consider two items. First, was there a policy in place addressing the issue, and secondly, was the policy consistently applied and followed?
For example, if a person alleging racial discrimination was terminated for excessive absence, the court will first inquire as to whether a discrimination policy was in place and how it was administered. The court will then consider how previous employees with histories of excessive absence were treated.
If your organization has an employee handbook that includes progressive discipline or termination provisions, it’s important to follow the procedures and processes consistently.
Reduce the Risk
Here are some helpful hints on record keeping and defamation and how to address some of the more common issues affecting faith-based employers:
Keep separate personnel records on each employee.
Keep detailed information regarding an employee’s performance.
Maintain accurate attendance records regarding absences and tardiness.
Make sure that personnel records don’t include identifying information such as employees’ race, color, sex, national origin, age, disability, or marital status.
Place personnel records in a secure, locked area.
Implement security procedures to protect employee privacy.
Provide confidential information regarding employees only to those individuals who have a “need to know.”
Provide employees with copies of documents that affect their status.
Record all changes in employee status, such as promotions, leaves of absence, rates of pay.
Store all records containing medical information in a location separate from other personnel records.
Make sure that employee records accurately reflect the employee’s job performance.
Consult with an attorney before releasing information that you believe could lead to a defamation claim.
Designate one department or person to handle all requests for recommendations.
Have a policy addressing what information will be provided and the procedures for providing information in recommendation requests.
Don’t discuss employee evaluations with other employees, except on a “need to know” basis.
Don’t share information regarding an employee’s medical condition or other private information with anyone without the consent of the employee.
Make sure personnel files are stored securely.
Maintain separate files containing medical information.
If a referral is requested regarding a former employee, obtain a written consent from the employee releasing you from liability. When providing a referral, provide
information based on facts, not opinions.
Provide the necessary information only to those who have a “need to know” regarding a disciplinary action or termination.
Give only the facts if a statement is necessary to explain a termination. Don’t offer opinions or expound on any unnecessary details.
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