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Employment Law: How Can HR Help Avoid Litigation?

ira-shepardThis post was contributed by CUPA-HR General Counsel Ira Shepard as a follow-up to his presentation at the CUPA-HR Annual Conference in October.

For higher education, like many other sectors, 2013 was another year for contentious employment and labor law litigation. HR professionals should be especially alert and vigilant regarding any disputes related to:

  • ADA
  • ERISA
  • First Amendment
  • Sexual harassment
  • Religious accommodation
  • Retaliation
  • FMLA
  • FLSA

These areas continue to be the most likely targets of plaintiff employment lawyers in prosecuting employment and labor cases.

No matter how astute an HR professional is in his or her guidance in these matters, resolving claims in these areas before litigation or early in the litigation process is important. Once a case goes to final judicial or jury resolution, all bets are off. There is truly no accurate way of predicting a certain judge or jury outcome, no matter how strong the case or defense is. One thing for certain is that judges are renowned for reversing themselves, which further delays the process, prolongs the dispute and adds needless expense.

As an HR professional, you can create significant value for your institution by leading the parties to a compromise resolution. Doing so will give the institution some degree of control in creating and structuring the resolution, rather than losing all control and ceding resolution to an unpredictable judge or jury. While the plaintiff’s counsel and even sometimes higher ed management may be stubborn in their refusal to compromise, a last minute suggestion from HR that everyone take a breather and pursue non-binding alternative dispute resolution before filing the lawsuit often breaks the log jam and leads to a resolution short of litigation.

For more on information on legal issues in higher education, be sure to read 10 Higher Ed  Labor and Employment Court Cases You  Need to Know About, as well as CUPA-HR’s monthly Legal Watch. And to help avoid disputes, work with your institution’s counsel to ensure that you have in place these 7 Must-Have Policies for Higher Ed Institutions.

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  • Larry Wilson

    Ira’s advice to seek a compromise is spot on. Perhaps even more emphasis should be placed on the value-add of resolving the issue before it becomes a claim. Often a claim is the product of failed communication. So everything HR can do to foster improved communication between employees and supervisors, to improve supervisors’ listening skills, and to foster a team approach to work issues is likely to reduce the likelihood that a misunderstanding becomes a claim.