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Supervisor may be legally liable for employment actions

Lynne Curry

When things go wrong, those harmed or ticked off look around for someone to blame. If it's you they choose, you may face a lawsuit you don't see coming and don't deserve -- particularly if you're a supervisor who assumes ticked-off former employees will only sue your company and not you.

Surprisingly, the normal corporate wall limiting personal liability doesn't completely protect supervisors. Several state and federal court rulings have held supervisors personally liable for their employment actions. Some of these cases involved six-figure judgments. Almost all of them took years to wind their way through the courts.

Consider these issues:

• When "Kevin" applied for a job, you listened to his story about his former supervisor. In a rush to fill the position, you didn't call his former supervisor for her side of the story. Because you didn't take "reasonable precautions" by doing a full reference check, you find you're partially liable for what Kevin does once hired.

• You fire an employee who brings her personal life drama to work and surfs the Internet instead of doing her job. She accuses you of creating a hostile environment based on age, sex and parenthood, producing dozens of emails in which you've asked her not to take calls from her children. She's the only young, African-American mother you supervise and she sues you personally as well as your company. After the company attorney coldly accuses you of mishandling the situation and plans to settle on behalf of the company, your attorney advises you to settle the claim against you rather than lose time and money fighting a claim of intentionally inflicting emotional distress.

• A manager calls you about references for "John." When firing John, you'd agreed to give him a neutral reference. Although you terminated John for verbal aggression and he scared you, you tell the prospective employer, "John was OK." In his first week on his new job, John verbally attacks and aggressively shoves another employee; you're sued for negligent referral. According to attorney Christine Walters, you may be liable "when you say something rather than nothing but the something doesn't totally disclose what you have knowledge of."

If you're a supervisor who doesn't want to end up on the losing side of a lawsuit, know the laws that protect employees. Those who park in tow-away zones get towed even if they don't see the signs. Similarly, if you're a supervisor who violates laws you aren't aware of, you're liable. Managers can be personally liable under the federal Fair Labor Standards Act, the federal Family and Medical Leave Act and other laws such as those that penalize negligent referral, negligent hiring or the intentional infliction of emotional distress.

Make sure you know your company's policies. Make sure you act within your responsibilities. If you act prematurely to fire or hire someone, you take on unnecessary liability. At the same time, because you can be personally liable for conduct "in the scope of employment" that violates employment laws, don't simply follow the lead of a senior manager who asks you to do something you feel wrong.

Perform due diligence. Never hire without a full reference check, regardless of how engagingly an applicant explains a former supervisor's animus. Once you hire an employee who harms others, his problems become yours.

Document. Don't act without documentation. If you have a problem employee, you can be sure the employee has documentation in retained emails, journal notes and potentially recorded conversations. Your written records may be invaluable in showing your fairness and how you've complied with applicable laws.

Keep your actions above reproach. When you talk with employees, remain professional and respectful at all times. Never act in anger and never retaliate.

The individual you protect may be you.

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Co. Inc. Send your questions to her at www.thegrowthcompany.com.


LYNNE CURRY
Management