Employer Litigation Risk List©

December 20, 2007

If you answer “yes” to any of the questions listed below, you should be prepared to prove that the employee received fair treatment in any separation from employment: 

1. Has the employee had a disputed worker’s compensation injury or claim within the past year? Y❑  N❑

2. Is the employee a female, and will she be replaced by a male employee, or are male employees with similar qualifications being retained? Y❑  N❑

3. Is the employee 40 years of age or older, and will he/she be replaced by a younger employee, or are younger employees with similar qualifications being retained? Y❑  N❑

4. Is the employee a member of a minority racial, ethnic, or national origin group, and is he/she replaced by a non-minority employee, or are non-minority employees with similar qualifications being retained?Y❑  N❑

5. Has the employee objected to, or failed to comply with a policy or work duty because of religious convictions (e.g. Sabbath work, etc.)? Y❑  N❑ 

6. Is the employee a member of a controversial religious group (e.g. Nation of Islam, Hare Krishna)? Y❑  N❑

7. Does the employee suffer from a physical or mental impairment that inhibits a major life activity (e.g. walking, speaking, breathing, doing any work, sitting, standing, lifting, reading, etc.)? Y❑  N❑

8. Does the employee suffer from, or is he/she perceived to be suffering from HIV or other viral-induced immune deficiency condition? Y❑  N❑ 

9. Has the employee refused an employer’s request to waive a legal right (e.g. consent to a polygraph examination)? Y❑  N❑ 

10. Has the employee been summoned for jury duty? Y❑  N❑

11. Has the employee performed a legal duty to the detriment of the employer (e.g. absence due to complying with a subpoena)? Y❑  N❑

12. Has the employee refused a job duty because he/she believed it would break a law or regulation (e.g. speeding, file false reports, etc.)? Y❑  N❑

13. Has the employee ever reported the employer for an alleged violation of law or regulation? Y❑  N❑

14. Is the employee pregnant or returning to work after pregnancy leave? Y❑  N❑

15. Does the employee have pension, profit sharing, or other employee benefits which are about to vest? Y❑  N❑ 

16. Is the employee a member of the armed forces (Reserves, National Guard, etc.) whose military service is an inconvenience to the employer? Y❑  N❑

17. Has the employee supported a union, or joined with other employees in protesting any term or condition of employment? Y❑  N❑

18. Has the employee initiated, participated in, or testified in any National Labor Relations Board investigation or hearing? Y❑  N❑ 

19. Has the employee initiated, participated in, or testified about any wage and hour (minimum wage or overtime) investigation or hearing?Y❑  N❑

20. Has the employee initiated, participated in, or testified about any OSHA investigation? Y❑  N❑

21. Has the employee initiated, testified in, or assisted in any investigation of the employer under federal, state or local environmental, energy, mine safety, asbestos control, toxic substance control, or commercial motor vehicle safety laws or regulations? Y❑  N❑

22. Has the employee refused to operate a commercial motor vehicle in a manner that he/she believes violated federal rules, regulations or safety standards in a way that creates risk of injury to the employee or the public (speeding laws, weight limits, poor equipment, etc.)? Y❑  N❑

23. Has the employee recently filed for bankruptcy or had his/her wages garnished? Y❑  N❑

24. Has the employee been asked to take, or taken, a polygraph (lie detector) test?Y❑  N❑

25. Is the employee’s plant or department closing, or is he/she one of 50 or more employees being laid off within a 30-day period, from a plant employing 100 or more employees, and have you not provided, at least, 60 days notice of the termination or layoff?Y❑  N❑

26. Has the employee been criticized or pressured not to use tobacco even though he/she has complied with all rules governing tobacco use at work? Y❑  N❑

27. Is the employee covered by a collective bargaining agreement that permits termination only for “good cause,” “just cause,” etc.? Y❑  N❑

28. Is the employee covered by an employee handbook, personnel policies, or other employment documents that describe the causes for, and/or manner of discharging employees, without an express disclaimer that no express or implied employment contract is created? Y❑  N❑

29. Has the employee been told or led to believe that he/she will be employed for a specific length of time (e.g. one year, until project is complete, etc.)? Y❑  N❑

30. Is the employee employed by state, local, or federal government? Y❑  N❑