Employment disputes are stressful, disruptive, and expensive. This is especially true when they result in litigation. While disputes cannot be avoided entirely, employers can manage them in a way that reduces the likelihood of litigation. They also can implement effective measures to help reduce the costs of litigation and significantly improve the likelihood of favorable outcomes.

Some recent healthcare cases illustrate this point, showing how consistent practices can create a strong evidence trail that benefits the employer. In both cases, disgruntled former employees insisted that they had suffered illegal discrimination and retaliation. They also claimed that their hospital employers lied about the "true reasons" for terminating their employment. In both cases, however, the hospitals prevailed through the United States Courts of Appeal, demonstrating that their articulated reasons for terminating the employees were both truthful and nondiscriminatory.

In Ellison v. St. Joseph's/Candler Health Sys., Inc. (SJC), a patient care technician (Naomi Ellison) was fired just two weeks after being involved in an altercation with a nurse supervisor, who allegedly referred to Ellison by a racial slur. The plaintiff claimed that the accused supervisor had a habit of using such offensive language. Claiming discrimination and retaliation, she identified another employee who also had been fired after complaining about the same nurse supervisor's use of the same racial slur. The court later referred to these circumstances as "troubling." So, the facts hardly seemed to be lining up favorably for the hospital. Nevertheless, the 11th Circuit Court of Appeal found in favor of the hospital, holding that SJC had still established a "manifestly reasonable basis" for firing Ellison.

How did the hospital do it? After Ellison reported her altercation with the supervisor, it promptly conducted a thorough investigation, which revealed the existence of multiple complaints by both patients and coworkers about Ellison's disrespectful and rude behavior, one instance of which apparently led to her dust-up with the nurse supervisor. The investigation also identified several reports of Ellison mistreating patients. And it was important that the decision maker in Ellison's termination was not the same person who was involved in the other instance of alleged retaliation after complaining about the same supervisor.

Thus, despite Ellison's allegations and the fact that her termination occurred shortly after her complaint, the hospital convinced the court that its reasons for termination were legitimate and non-discriminatory. (It obviously still had to deal with the allegations against the nurse supervisor as well.)

Undoubtedly, the hospital's success was due in large part to its timely response to Ellison's complaint, as well as its ability to prove that its investigation was thorough and objective. This helped establish its credibility. On the other hand, Ellison hurt her credibility by making a silly argument about the reason why her supervisor must have been lying about the "real" reason for her termination. She contended that because her supervisor gave her the name of a contact person with another potential employment opportunity, he could not have thought that Ellison was actually a poor employee. Fortunately, the court saw through her nonsense.

In Kopko v. Lehigh Valley Health Network (LVN), a case manager who violated the Health Insurance Portability and Accountability Act (HIPAA) claimed she was terminated because of her age and in retaliation for opposing discrimination against minorities, the elderly and the disabled. Kopko could not escape the fact, however, that she had indeed accessed and disclosed a patient's medical information without the patient's authorization, which resulted in her termination. In short, the Third Circuit Court of Appeals thought that LVN honestly and reasonably believed that Kopko had violated its HIPAA policies.

Once again, a timely and effective investigation enabled the hospital to convincingly demonstrate its non-discriminatory, non-retaliatory reasons for firing Kopko.

In both cases, the employer's prompt, careful actions helped carry the day. By presenting evidence to demonstrate that they took complaints seriously and addressed them quickly, both SJC and LVN defeated claims that otherwise could have been much more troublesome and expensive. In fact, if they had not had proof of their diligent follow-up actions, the hospitals might not have prevailed at all. The findings of the investigations were, after all, the cornerstones of both decisions to terminate. But building an effective trail of evidence involves more than just documentation and conducting timely, reliable investigations.

Other measures to reduce risk begin with helping supervisors form good habits of identifying and clearly documenting their concerns early-on. This is true whether the issue is a policy violation or poor job performance. Effective documentation also encompasses employee performance evaluations, which far too often tend to soft-peddle employee shortcomings. By training supervisors to recognize that overly lenient evaluations will be used against them during litigation, employers can help them recognize the importance of equally constructive and honest communications when presenting these evaluations.

While it is true that supervisors are extremely busy with operational issues, they are also pretty smart people. The better they understand that respectful-but-honest documentation is their friend, the more effective they will be in helping their employers avoid contentious and difficult litigation.

Another point that cannot be emphasized enough is the need to involve the human resources department in addressing and documenting performance or behavioral concerns. This helps supervisors be more accurate, effective and, especially, consistent. It also helps them avoid the "at-will employment myth."

Even though at-will employment, which is the default relationship in Texas, permits either the employer or employee to terminate the relationship at any time for any legal reason, or for no reason at all, it tends to give untrained supervisors a serious misunderstanding of the importance of documentation. This is also a reason why at-will employment may almost be considered mythical.

Specifically, in today's environment, only the narrowest slice of termination decisions can reasonably rely on "at-will employment" as the sole basis for defending the decision. As the cases above illustrate, plaintiffs and their lawyers can be creative in concocting theories and allegations about the "real" reasons for a termination. Most disgruntled former employees do not hesitate to accuse the employer of outright lying about the reason for their firing. And, with the increasing availability and frequency of retaliation and whistleblower protections under the law, it is a rare plaintiff who cannot find a colorable cause of action to assert when they feel they have been terminated unfairly.

Thus, in sum, solid documentation and timely responses to employee complaints not only help avoid an employee ever being surprised by the employer's decisions. A trail of such actions, when maintained consistently, also helps employers prove the reasons for their decisions, therefore decreasing the likelihood and cost of employment litigation.

Originally published by Medical Journal Houston

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