SHRM26 Debrief · Legal & Compliant HR · #1387
An Employment Lawyer’s Top 10 Reasons Why Employers Get Sued by Employees (And How To Prevent Them All)!
with Mario Bordogna
"The Whammy is going to come take your money."
What it was about
Most employment lawsuits stem from a recurring, largely preventable set of ten HR missteps: poor documentation, inconsistent policy enforcement, sloppy investigations, and untrained managers. Employers can significantly reduce legal risk by systematizing basic HR discipline rather than reacting case by case.
By the numbers
five times out of 10
estimate of how often employers' actual written policies don't say what they think they say when reviewed before discipline
35,568 and change (referred to as '35, five, and change')
the basic FLSA salary exemption threshold amount
107,000
the highly compensated employee exemption threshold
Key notes
- Require regular, objective documentation of employee performance and discipline for every employee, not just problem employees, so terminations are supportable and don't look retaliatory.
- Always provide a written, succinct, specific reason for separation at the time of termination, citing the exact policy violated, rather than leaving it ambiguous for the employee to fill in themselves.
- Build and consistently use a checklist for the ADA interactive/accommodation process, maintain accurate job descriptions with human oversight (not AI-generated without review), and always close the loop with the employee.
The contrarian takeEven conduct that isn't actually unlawful, like general workplace bullying or discord, can still generate legal exposure. Employees often mistake subjectively unfair treatment for unlawful discrimination or harassment, and that perception gap alone becomes a gateway to claims.
Take this back Monday
Do this for your team
Pull every employee's discipline file and flag anyone with zero documented performance notes before you consider any termination.
Say this in your next leadership meeting
Most wrongful-termination suits come from missing documentation, not bad firings: our real fix is disciplined paperwork, not more policies.
Watch out for
- Terminating an employee with no documented history of discipline or poor performance, making the firing look pretextual.
- Giving no reason or an incomplete reason for separation, letting the employee (and their lawyer) fill in the gap.
- Dismissing an accommodation request outright without a proper interactive process, medical review, or job-function analysis.
If this landed, see these
↳ Go deeperSeven Steps for Perfecting Your DocumentationTurns 'document everything' into a concrete seven-step method for doing it right.⇄ The counterpointWhen Employee Relations Isn't Enough: A CLEAR Framework for Protected Class InvestigationsPushes back: protected-class investigations need more than basic HR discipline, they need a different playbook.✦ The unexpected oneUnMuted Leader: Turning Insight into Influence in the Future of WorkHR's silence and employers' missing paperwork are the same mistake: fear costs more than acting.