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Presented by: Oliver Yee

12 Steps to Avoiding Liability California State University (CSU) 2013 Fitting the Pieces Together Conference. Presented by: Oliver Yee. Avoiding Liability: Part 1: Take preventative steps to avoid a lawsuit. Part 2: Invest necessary time and resources to defend a lawsuit.

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Presented by: Oliver Yee

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  1. 12 Steps to Avoiding LiabilityCalifornia State University (CSU) 2013 Fitting the Pieces Together Conference Presented by: Oliver Yee

  2. Avoiding Liability:Part 1: Take preventative steps to avoid a lawsuit.Part 2: Invest necessary time and resources to defend a lawsuit. 12 Steps to Avoiding Liability

  3. Step 1 Follow the Rules

  4. Step 1: Follow the Rules What are the Rules? • Employer-Employee Relations Ordinance or Resolutions • Memorandum of Understanding • Municipal Code • Personnel or Civil Service Rules • Laws/Statutes • Charter • Department Rules

  5. Step 1: Follow the Rules Audit Your Rules, Policies, Etc.

  6. Step 1: Follow the Rules Your Failure to Follow the Rules Will Become Their Primary Exhibit

  7. Step 2 Train and Re-Train

  8. Step 2: Train & Re-Train Establish a Training Procedure • Orient and Educate New Employees about Rules and Regulations and Expectations • Re-Educate When Necessary • Have Everyone Attend Training Including Managers • Rules Are Useless If Employers and Employees Don’t Know What They Are

  9. Step 2: Train & Re-Train Training is Important • Provides a Defense in Lawsuits • Maintains Consistency within the Agency

  10. Step 3 Surround Yourself With Competent People

  11. Step 3: Surround Yourself With Competent People • Identify Intelligent, Dedicated and Loyal Employees • Reduce Liability by Avoiding, Improving or Removing Poor Employees

  12. Step 3: Surround Yourself With Competent People • Invest Necessary Time to Hire the Best Employees By: • establishing job-related criteria • experience-based questions • Prepare for Interviews • Conduct Thorough Background Investigations • Do reference checks • Don’t Let Personal Relationships Cloud Hiring Decisions

  13. Step 3: Surround Yourself With Competent People Terminate During Probationary Period if in Doubt

  14. Step 4 Accountability for All!

  15. Step 4: Accountability for All • Utilize Performance Evaluations to Honestly Assess Performance • Advise Employees of Performance Expectations • Be Honest and Accurate

  16. Step 4: Accountability for All • Keep Accurate Records of Compliance With Rules • Document Staff Meetings With Employees • Document One on One Meetings • Keep a Supervisor’s File • Empower Your HR Department

  17. Step 4: Accountability for All • Enforce Rules By Disciplining Employees Who Violate Them • Supervisors and/or Managers Must Set Proper Examples and Be Subject to Discipline Too

  18. Step 5: Be Honest, Consistent and Fair

  19. Step 5: Be Honest, Consistent and Fair • Be Honest • Don’t Create False Expectations • a.k.a. “No good deed goes unpunished” • Don’t Let Poor Performance Slide • No Surprises

  20. Step 5: Be Honest, Consistent and Fair • Be Consistent • Apply Rules Consistently • Timeliness is a Component of Consistency • Do Performance Evaluations • Do Not Miss Deadlines

  21. Step 5: Be Honest, Consistent and Fair • Be Fair • Update Job Descriptions to Reflect Actual Duties • Revise Outdated Personnel Rules • Deviation from Rules May Be Seen as Unfair or Discriminatory

  22. Step 6 Communicate Communicate Communicate

  23. Step 6: Communicate, Communicate, Communicate • Communicate Daily • Communicate Positive and Negative • Communicate With Knowledge • Communicate Clearly

  24. Step 6: Communicate, Communicate, Communicate • Communicate Rules and Expectations • Be Clear in Your Communications • Avoid “Passing in the Hallway” Communications • Avoid “Stray” Remarks

  25. Step 6: Communicate, Communicate, Communicate • Document Your Communications • Document/Record-Keeping of Staff Meetings/Communications • Document Communications in Supervisor’s File

  26. Step 6: Communicate, Communicate, Communicate Listen

  27. Step 6: Communicate, Communicate, Communicate Press / Public Comments: • Keep Comments to External Parties Focused on Theme • Be Careful re: Personnel and Labor Issues • Know if You Are an Authorized Speaker • Keep Your Principals Informed About What You Hear

  28. Step 7 Pick Your Battles Wisely

  29. Step 7: Pick Your Battles Wisely • Every Decision has Ramifications • In Assessing Whether to “Fight” a Battle, Think About Broad and Long-Term Implications • Don’t Sweat the Small Stuff

  30. Step 7: Pick Your Battles Wisely • Evaluate Options and Weigh the Risks • What are the Monetary Implications? • What will the Affect be on Employees and/or Employee’s Association? • What will the Affect be on Management?

  31. Step 7: Pick Your Battles Wisely Disciplinary Action • Consider Likelihood of Success • Management Decisions Are Reversed Usually Due to: • Inconsistent enforcement • Wrong rule applied • New rule; insufficient publicity • Unreasonable rule • Unreasonable penalty

  32. Step 8 Investigate Before It’s Too Late

  33. Step 8: Investigate Before It’s Too Late • Investigate Promptly • Follow Your Own Rules • Have a Complaint Procedure • An Investigation may be Required by Law • Harassment

  34. Step 8: Investigate Before It’s Too Late • Investigations on Trial • Prompt • Thorough • Effective

  35. Step 9 Due Process Matters

  36. Step 9: Due Process Matters Essential Components (Skelly) • Written Notice of Charges • Facts and Documents Upon Which Charges are Based • Opportunity to Respond

  37. Step 9: Due Process Matters • Understand Your Role in the Post-Disciplinary Due Process Hearing • What is Your Role/Council/Board’s Role in Final Decision

  38. Step 10 Everything is “Discoverable”

  39. Step 10: Everything is “Discoverable” Understand the Public Records Act and Brown Act

  40. Step 10: Everything is “Discoverable” • Imagine Everything You Write Will Be Used as an Exhibit • Nothing is Confidential • This Includes E-mails and Text Messages Too! Be Careful What You Write!

  41. Step 11 Litigate to Win

  42. Step 11: Litigate to Win • Cooperate With Attorney • Importance of Defending Lawsuits • Understand and Accept That Winning Lawsuits Costs Money and Requires Expenditure of Staff Time

  43. Step 11: Litigate to Win Prepare Be Honest KNOW HOW TO TESTIFY

  44. Step 12 Don’t Take It Personally

  45. Step 12: Don’t Take It Personally • Individual Liability is Often Used By Plaintiff’s Counsel as a Scare Tactic and as Leverage in Settlement • Individuals Can Be Subject to Punitive Damages

  46. Step 12: Don’t Take It Personally Do NOT Retaliate

  47. Questions? Oliver Yee Attorney | Los Angeles Office 310.981.2044 | oyee@lcwlegal.com www.lcwlegal.com/Oliver-Yee

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