Unless you’ve been under a rock, the fact that many start-ups have recently found themselves on the wrong side of the litigation or threatened litigation “v.” should not surprise you. In fact, it is often the very things that make start-ups so appealing – their laid back culture, open floor plans, no dress code, lack of defined titles – that can create some of their worst HR nightmares.  With this in mind, here are my top five proactive tips for keeping your start-up out of trouble:

1. Harassment and Discrimination Training:  Routine training managers and other supervisors on how to respond to and act in certain situations can save start-ups from unnecessary litigation. Through training, start-ups can ensure that decision-makers prohibit workplace harassment and discrimination and shield against a hostile environment on the basis of any protected characteristic.

2. Create and Maintain an Employee Handbook:  All employers, regardless of size, should have an employee handbook to help ensure that employees receive important information about company guidelines, procedures and benefits.  A well-written employee handbook can set expectations with regard to performance and conduct, address routine employee questions and satisfy various legal and regulatory requirements by communicating certain information to employees.

3. Institute a Complaint Policy:  A complaint policy should include a detailed procedure through which employees may report an incident of harassment, discrimination or retaliation.  Employees who believe they have experienced harassing or discriminatory conduct should be encouraged to file a complaint before the conduct becomes severe or pervasive.  Employers should document all oral complaints or reports in writing.  After a complaint is made, employers should complete a prompt and thorough investigation.

4. Avoiding Wage and Hour Violations:  Wage and hour violations typically result from improper classifications of employees who have either been misclassified as exempt or as independent contractors.  Certain employees are “exempt” from overtime but exemptions are narrowly construed, and failure to properly classify status may lead to expensive claims. It is also critical to correctly determine whether individuals providing services are employees or independent contractors because independent contractors are not covered employees by the FLSA.

5.  Documentation and Recordkeeping:  Any event that is not documented did not happen.  As such, documentation is important to limit exposure to workplace litigation.  Employers should document all employment decisions and such documentation should:  (1) occur as close in time to the incident as possible; (2) show that the employer had a legitimate, non-discriminatory business reason for a possibly adverse action; and (3) put the individual on notice of any performance or disciplinary issues and provide the individual an opportunity to correct his/her performance or avoid future policy violations.

Originally published by the SHRMBlog, republished with permission.

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Photo of Keisha-Ann Gray Keisha-Ann Gray

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment…

Keisha-Ann G. Gray is a distinguished litigator and trial lawyer who has secured significant victories in federal and state courts (jury trial and otherwise) for organizations facing “bet the company”, high-reaching, reputational risk claims. An award-winning partner in Proskauer’s renowned Labor & Employment department and co-chair of the Firm’s Workplace Investigations practice group, she advises clients on high-stakes employment litigation and complex investigations matters. As important social change movements like Black Lives Matter, #MeToo and LGBTQ Pride continue to shape society and businesses, Keisha-Ann is the go-to advisor when addressing issues related to discrimination, harassment and/or lack of diversity.

With 20+ years in practice, Keisha-Ann frequently speaks and trains on employment matters such as litigation and trial practice, conducting effective investigations (the trauma-based approach), Diversity, Equity & Inclusion, and Anti-Discrimination/Anti-Harassment. Her “real talk” style of delivery provides clients with actionable and practical best practice solutions to today’s most challenging workplace issues.

Prior to joining Proskauer, Keisha-Ann served as an Assistant United States Attorney in the Eastern District of New York and federal law clerk in the U.S. District Court for the District of Puerto Rico.  The breadth of Keisha-Ann’s experience and background in federal government, coupled with her tenure in private practice as a Big Law partner and employment litigator, gives her the unique ability to meaningfully connect with diverse groups of people. This skill enables her to advocate effectively and successfully (in and out of the courtroom) for her clients. As a result, Keisha-Ann is also frequently called upon to conduct high-profile internal investigations. Because of her unique and varied skill set, clients routinely engage Keisha-Ann to handle their most sensitive matters which, due to her involvement, often successfully result in non-public, confidential resolutions – precisely the mandate required by her clients.

Keisha-Ann enjoys giving back to the community and profession by serving as a member of the Mayor’s Advisory Committee on the Judiciary. She also serves on the Board of the Attorney Grievance Committee for the NY Supreme Court Appellate Division, 1st Department, the Board of the Federal Bar Council, and the Board of the Eastern District Association. In addition, Keisha-Ann co-Chairs the Federal Bar Council’s Employment Litigation Committee, and mentors junior female attorneys and junior attorneys of color.