Later, the employee sues, saying, "I found out there are no budgetary restrictions. The firing was because I am in a protected group." Now the manager backpedals: "Well, actually, the reason for the termination was poor performance."

Boom. The framework for the successful lawsuit is in place. An employee with demonstrably "satisfactory" performance (as documented by his appraisal forms signed by the manager), was officially terminated for "budgetary restrictions." Now the manager is saying the real reason was poor performance. Clearly the manager was untruthful at some point.

And, unfortunately, the poor performance is not documented. The jury is going to side with the employee. Or, more likely, this case is going to settle.

Worst #2: Making Snap Decisions When Responding to Employee Requests and Complaints

Certainly, many employee requests are annoying, or unreasonable, or even outrageous, but that doesn't mean that you can ignore them, or refuse them, or even react angrily to them. That's not easy when, for instance, a key worker asks for FMLA leave with the busy season coming up. Or you had a very good shot at getting a proposal out on deadline until the writer asked for "bonding time." Or his "back is acting up" or her "migraines are getting worse."

Whatever the situation, managers and supervisors need to be trained to "keep their cool" and give the request due respect. Training managers to deal with these situations is relatively easy. Tell them, "If this kind of situation arises, say - I'll get back to you,' and head directly to HR." Complaints are similar in that they can be upsetting (especially if directed at the manager or supervisor in question) but must be dealt with respectfully. For example:

• Allegations of discrimination, retaliation, or illegal practices
• Questions about safety or a refusal to do a job because it is viewed as unsafe
• A report of an illegal act or refusal to perform an act perceived to be illegal
• Questions about wages, hours, overtime, etc.
• Requests for workers' compensation
• Requests for accommodation on the basis of disability or religion

Employees have rights in these areas, and they must be respected. In addition, be aware that your denying these rights will rarely look good in court.

Worst Mistake #3: Basic Wage/Hour Stumbles

Employees will tolerate a lot, but start messing with their paychecks, and there will be trouble, guaranteed. Many wage/hour problems seem relatively small, but they can be magnified dramatically as class actions. For example, say you fail to pay 5 hours of overtime per week to an employee. Call it 250 hours in a year, with a $10 an hour premium, and it's $2500. No big deal. Now multiply by 200 employees. Whoops, that's half a million. Double it and add in attorney's fees - yours and the employee's - and you've got a pretty big number.

Here are the most common wage/hour failures:

Failing to Pay for All Hours Worked
One common scenario is employees who put in unpaid hours willingly ("Don't worry; I'll finish that up at home."). That's thoughtful, but it doesn't relieve you of the obligation to pay. The other common scenario is when people are expected to do setup before clocking in (filling cash register, setting up tables) or do cleanup after clocking out. ("Do you mind just .prepping for tomorrow after you clock out?") Another increasingly common scenario is employees who are expected to take calls or answer email on their smartphones or home computers off hours. If it's more than a very negligible amount of time, it probably counts as hours worked.

Offering comp time in private sector
There's no such thing as comp time in the private sector. If employees work, they get paid

Lesser or no overtime rate
No matter what employees agree to, or even ask for, they must be paid time and one half their regular rate for overtime hours.

After clocking out. Before clocking in.
Employees may want to "help out" and work some hours off the clock, but that is not permitted. If they work, they have to be paid.

Text Messaging Best Practices

Text messaging in the workplace is likely here to stay, used by everyone from the company president to building maintenance personnel. Banning text message use to communicate about work matters is most likely unrealistic. A better approach is to create - and enforce - a policy that clearly sets out the kinds of communications that must be made in a manner other than a text message. For example, any communications regarding pay or hours worked, attendance, or medical- or disability-related leaves or absences should be made through email or by a written document. Your company's policies should also be updated to make clear that discriminatory or harassing comments made through text message or any other electronic means are prohibited, will not be tolerated, and can lead to discipline up to and including termination.

How can employee "tweets" cause trouble for employers?

1. If an employee's communications run through an employer's servers, network security
2. Employers have no way of monitoring whether employees are disclosing confidential information or trade secrets in their Twitter communications.
3. Like all electronic communications, information that is tweeted during the course of employment may be binding on employers and subject to subpoenas.
4. As short communications that are often made on the spur of the moment, tweets are vulnerable to misunderstandings and poor judgment, with employees failing to think before they tweet.
5. Like other forms of electronic communication, tweets can be used to make harassing or discriminatory statements for which employers may be held liable.
6. When employees are Twittering, they're not working.

Remind employees who use company property to Twitter that they must comply with your computer use policies. Consistent enforcement of that policy is critical, not only for effectiveness but also to guard against discrimination and retaliation claims.

• Members of a protected class
• Employees who've complained or filed some sort of claim, including corporate whistleblowers
• Employees on medical, military, or other protected leave
• Employees who have contractual employment rights
• Employees who have asserted a public policy claim

Here are 3 tips for reducing your lawsuit risks if you're looking to fire a "fire-retardant" employee:

1. Keep your distance. Timewise, that is. Unless the employee does something that warrants immediate, no-questions-asked termination, like brandishing a gun on the shop floor, try to put some distance between the protected activity and the termination.

2. Keep meticulous records. The employee's cries of "foul!" won't get much traction if you maintain detailed, timely records showing his or her various performance-related deficiencies, as well as the appropriate counseling and feedback you've given the employee along the way to try to get him or her back on track.

3. Look to similarly situated employees. Terminating, say, a pregnant employee for a minor theft looks bad - but not if you can show that you've terminated other non-pregnant employees for comparable transgressions.

Keeping Your Nose Clean Of course, the absolute best way to stay out of court is to always stay on top of your recordkeeping, your disciplinary procedures, and your compliance with the applicable state and federal laws.

• Require all applicants, regardless of national origin, to undergo the same pre- employment screening, such as background checks.
• Ask the same questions of all applicants
• Use multiple interviewers to reduce the risk of conscious or unconscious discrimination by any single interviewer.
• Ensure that language fluency requirements are bona fide occupational qualifications or justified by business necessity.
• Ensure that language fluency requirements do not demand a greater degree of fluency than is required to effectively perform the job.
• Establish written objective criteria for evaluating all applicants for hire or promotion and apply those criteria consistently.
• Review each proposed new hire before making offers to ferret out potentially discriminatory trends in job and salary offers.
• Ask open-ended questions that relate only to the job and the applicant's qualifications and experience.
• Use employment listings and advertisements to notify prospective applicants of all qualifications, including any related to language ability.

Don't:

• Ask personal questions
• Restrict hiring to U.S. citizens or lawful permanent residents unless required to do so by law or government contract
• Rely on co-worker, customer, or client discomfort or preference as a reason to hire only individuals of a specific national origin.
• Rely exclusively on word-of-mount recruitment by current employees. It is less likely than other methods to reach a diverse pool of applicants. Unless your workforce is already diverse, use a variety of recruitment tools.
• Use height or weight requirements that could systematically exclude applicants based on national origin.
• Use training or education requirements that could systematically exclude applicants with foreign education or training.
• Refuse to accept lawful documentation that establishes an applicant's employment eligibility or demand additional documentation beyond what is legally required.

1. If one or both are not accurate, submit corrected materials, including an updated I-9 form, to the SSA, as soon as possible.
2. If they are both accurate, advise the employee to contact the local SSA office to resolve the issue

3. Provide the employee a reasonable period of time, such as 120 days, to resolve the issue with the SSA.

4. Meet periodically or otherwise communicate regularly with the employee during this period to learn and document the status of his or her efforts to resolve the issue. Remember that the employer cannot request more or different documents than are required to verify employment eligibility on the I-9 Form. Never ask the employee for specific documents or a green card.

5. Check in with the employee at the end of the time period.

1. If the employee can show that the issue is resolved or is in the process of being resolved, document the resolution in payroll records.
2. If the employee has made no progress toward resolution, consult an attorney to determine whether you can lawfully terminate the employee.

6. Remember that you should never terminate an employee based solely on a no-match letter.