If an employee has taken FMLA leave, that can make the situation even more complicated. Take this recent case as an example:

A sales rep had been highly regarded by his employer. Three out of his four most recent performance evaluations rated him as “exceeding expectations.”

That changed after he took a month of FMLA leave to be treated for alcoholism.

Two weeks after he came back, it was time for his next review. His boss noted that his sales had dropped and there had been problems with his communication skills. The review concluded the employee failed to meet expectations, and he was placed on a 30-day performance improvement plan.

When he failed to bring his numbers back up in time, he was fired — and he sued the company. He claimed he was a good employee and was unfairly terminated because he took FMLA leave.

The employer argued that despite his previous success, his performance started to slip, as his most recent review showed.

But the company lost the case.

The reason: The court wasn’t convinced he would’ve gotten a poor review if he hadn’t taken leave. As the judge noted, missing a month of work must have caused his sales to suffer. The company should have adjusted its standards to account for the time he was gone.

Managers need to be careful about how they evaluate employees who return from medical leave. Even if bias isn’t intentional, companies can still get in trouble when an adverse action is in any way tied to an employee’s use of FMLA.

Cite: Burris v. Novartis Animal Health U.S., Inc.

A recent case is a reminder that working in HR is often like herding cats — once you’ve got managers doing one thing right, there’s a chance they’re making mistakes in another area.

In this case, the manager kept all his documentation in order, but still managed to cause big trouble for the company.

An employee was disciplined for several behavior and performance issues. Over the course of a year, she was:

• given a negative review for failing to get work done on time
• warned about her attendance
• suspended for falsifying time records, and
• warned in writing for not following the employer’s procedures.

Eventually, she was suspended again for failing to perform some of her job duties and placed on a performance improvement plan. The company gave her one more chance to correct the problems.

In her next review, her manager described her performance as “marginal.” The supervisor brought the situation to his boss and the employer’s HR manager, who made the obvious decision: The employee was fired.

Sound reasonable? The employee didn’t think so. She claimed her boss disciplined her and gave her negative reviews because of her age and sex. She pointed to several comments he made to her, including, “Women are good for one thing and that is sex,” and, “They’re too old to do their jobs well anymore,” referring to two of the woman’s co-workers.

Didn’t make decision

The employee took the issue to court. The company tried to have the case thrown out, arguing that the manager wasn’t involved in the final decision to fire her. He brought the problems to the attention of his supervisor and HR, and they made an unbiased decision based on his documentation.

But that didn’t matter to the judge. Even if the final decision-makers weren’t biased, the woman wouldn’t have been fired without the actions her manager took. And, based on his discriminatory comments, the court believed she’d been repeatedly disciplined because of her age and gender.

The court refused to toss the case, and the now company will have to defend itself in a costly jury trial or pay an expensive settlement.

Stay out of trouble

Here are some steps HR can take to prevent one rogue supervisor’s biases from causing big legal trouble for the company:

• Investigate. As this case shows, sometimes it’s not enough for a decision-maker to rely on a front-line manager’s assessment. It’s often necessary to ask for the employee’s side of the story before taking any action.
• Train regularly. Managers need to understand how the things they say can be interpreted by employees — supervisors have gotten in trouble over less outrageous comments than the examples in this case.
• Follow up. After training, make sure supervisors who still give the impression of bias are disciplined.

Cite: Lanahan v. Southern Nevada Health District

When employees make harassment or bias complaints, managers know not to retaliate. But too many make a mistake in the other direction — and avoid taking any action against the employee again, even when it’s well deserved.

When employees complain, does that mean they get a lifetime pass to avoid discipline or termination?

Of course not — they still need to face the consequences of poor performance or bad behavior, just like everyone else. But it does mean managers need to take some extra care when dealing with employees who’ve made legal complaints.

In one recent court case, a part-time employee filed a sexual harassment complaint. Her manager gave the accused co-worker a warning. The employee complained to her boss’s supervisor that more needed to be done, and the accused harasser got a second warning.

Shortly after that, the manager eliminated the employee’s position by combining it with another part-time job. She couldn’t work that many hours, so the other part-timer took the full position and the employee was let go.

She sued for retaliation. The company argued she would’ve lost her job anyway.

But the court ruled that the short time between the employee’s complaint and the termination — plus the fact that there was no documented evidence that the boss had considered combining the two jobs before the complaint was made — was suspicious enough to send the case to trial.

Cite: Magyar v. St. Joseph Regional Medical Center

Where do courts draw the line on retaliation?

In another recent case, an employee filed a complaint about harassment she claimed she witnessed against two of her co-workers.

Several months later, she was terminated. Why? She’d made several costly mistakes in her work. The company had to shrink her department and, based on her previous performance, decided she was the one to let go.

She sued, but the court ruled in favor of the company. The reduction-in-force was thoroughly planned and the woman’s slip-ups were well-documented. Therefore, it was clear she would’ve lost her job even if she didn’t make the harassment complaint.

Cite: Van Horn v. Best Buy Stores, L.P.

Lesson: Document, document, document

What set the companies apart in these two cases?

Answer: Documentation.

Courts look closely at the timing of companies’ decisions — if an employee’s disciplined or fired shortly after filing a complaint, it can be hard to convince a judge the decision was unbiased.

But as the latter case shows, it’s not impossible — as long as the manager keeps strong documentation.

In one recent case, a 54-year-old woman sued for age discrimination. The problems started when she got a new supervisor, who was transferred from another location. During the transition, he started working part-time at the woman’s location.

He referred to her by the nickname “Grandma.” And despite the fact that she’d gotten mostly positive reviews up until that point, he placed her on a performance improvement plan (PIP) — before he was even her full-time boss.

While the woman was on vacation, the employees who worked under her made a few screw-ups. The problems were held against her, and her supervisor gave her a demotion. Instead of accepting it, she quit her job and sued the company, claiming the boss tried to demote her because of her age.

In court, the company pointed to the documented PIP as evidence of the woman’s performance problems. But the judge didn’t buy it.

Based on the evidence, the PIP was necessary in the first place — the person behind the decision wasn’t even the woman’s full-time supervisor yet. Also, his nickname for her certainly didn’t help. So it looked like the supervisor preparing to discriminate and used the PIP as a way to justify his actions.

The lesson: Only legitimate documentation will offer protection in court.

Cite: McDonald v. Best Buy Co., Inc.

What’s HR’s strongest weapon in the fight against lawsuits? That’s right, documentation. But too often, documentation is weakened when managers make these common mistakes.

The biggest documentation blunder, of course, is not having any. But there are plenty of other little things managers do that can get companies in trouble.

Here are some common mistakes many managers make, according to attorney Allison West, who spoke at this year’s Society for Human Resources Management conference:

1. Using general buzz words — Statements like “The employee has a bad attitude” or “He’s not a team player” are worthless on their own — and are often red flags for discrimination suits. They make it look like the company’s fishing for reasons to fire or discipline an employee. The documentation needs to include the specific actions and behaviors that led to those descriptions.
2. Coming to legal conclusions — Managers must be sure not to accuse anyone of breaking the law. For example, documentation should never say an employee “sexually harassed” someone. Instead, the manager just needs to describe what the employee did or was accused of doing.
3. Not giving the employee a chance to weigh in — Employees should be able to make written statements about parts of the documentation they disagree with. It lets the employee know you’re being fair and can go a long way toward alleviating frustration. The supervisor may even learn something about how to manage the employee.
4. Using absolute language — Statements like “The employee never met deadlines” and “The employee was always late” are rarely true — employees will always be able to point to times when they made deadlines, or came in on time. And when documentation contains any statements that aren’t true, employees — and their attorneys — can use that to their advantage.
5. Giving timelines without following them — If a manager disciplines an employee and writes that she has 90 days to improve her performance, then he’d better give her 90 days to improve her performance. Supervisors must be absolutely sure the timeframe is appropriate before sealing the deal in writing.
6. Writing verbal hiccups — Meaningless phrases like “it appears” or “it seems like” often innocently appear in managers’ writing. But to an outside reader, they imply the manager isn’t sure what he or she is saying is true.
7. Including things the employee wasn’t directly told — Writing down critiques of an employee’s performance won’t do any good if you can’t prove the employee was told what was wrong and given a chance to improve. Where appropriate, have the employee sign off on the documentation.