Here are 5 common misconceptions and tips to minimize these claims:

1. My “at-will” provision is somewhere in my handbook. I’m protected!

If your “at-will” provision is buried within the handbook and does not “stand out,” it may not have the binding effect you think. Having the provision only on Page 13 buried in your section on discipline will not suffice.

To ensure, to the extent possible, that your employees understand their “at-will” relationship, this provision should be located on the second page of your handbook, by itself, in bold and in 14-inch font. It should also appear in other relevant portions of your handbook, such as your section on disciplinary procedures.

2. My employees got a copy of the Employee Handbook. I’m protected!

Simply providing your employees with a copy of your handbook is not sufficient. A long-term employee may claim she never received a handbook at the time of hire, and without some signed acknowledgment of receipt, the employee is likely to succeed on that argument, even if other employees received one at that time.

As such, ensure that all employees sign an acknowledgment that they have received the handbook and were given sufficient time to review it. Place the acknowledgment in their personnel files.

3. I instruct new hires to read and become familiar with the Employee Handbook. I’m protected!

A signed acknowledgment of receipt is not enough. When plaintiffs are asked at trial if they read the Employee Handbook, the typical answer is “no.” When asked why not, the usual answer is “just didn’t.” Yet juries almost never fault these plaintiffs for not having read their handbook because most jurors, employees themselves, have not done so themselves.

You should provide employees a minimum of a day or two to review the handbook before accepting their signed acknowledgment. Also, take the time to review provisions in the handbook, including the “at-will” and harassment policies, before accepting their signed acknowledgment, to ensure they understand those policies you find critical.

4. The policies are written. I’m protected!

Although employers have written policies/procedures, they fail to follow them consistently and uniformly. They become selective about whom the policy applies to. This can form the basis for discrimination or retaliation claims.

It is imperative that you follow your written policies/procedures uniformly with almost no exceptions. Don’t have the policies otherwise.

5. Having an Employee Handbook shows we have our employees’ best interests in mind.

Having an Employee Handbook, no matter how employee-friendly, should never be the primary means of communicating your employees’ significance to the success of your business. We regularly hear employees complain that their employers fail to take the time to listen to or understand their needs, that the handbooks simply pay lip service.

Remember that a business cannot run without its employees. Thus, take care to remember you are dealing with individuals and give as much respect to them as you expect from them. With this overall strategy, productivity can only grow!

The Ledbetter Case

In 2007, the United States Supreme Court ruled on the case of Ledbetter v. Goodyear. Ms. Ledbetter, a 20-year employee of Goodyear, claimed that, in her early years at Goodyear, her supervisors discriminated against her by unfairly evaluating her performance less favorably than her male counter-parts, resulting in lower salary increases. She believed that those discriminatory evaluations affected every paycheck she received throughout her tenure with Goodyear. As such, she argued the right to bring a claim of discrimination based on each paycheck she received that was less as a result of the evaluations, even though they were years after the last discriminatory evaluation had been conducted. The Supreme Court disagreed, saying that Ms. Ledbetter needed to have brought her discrimination claim within 180 days of the actual discriminatory decisions, i.e., when the evaluations happened. She could not bring a claim based on the affects of the prior decisions.

The Ledbetter Act

President Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009, overturning this Supreme Court decision. The law now permits an employee to bring a claim for discrimination 180 days from not only a discriminatory compensation decision, but also any affects of that decision. Even if the discriminatory action (i.e., an evaluation) happened 20 years ago, an employee can bring a claim based on a current paycheck reflecting a lesser salary than male counter-parts, which the employee can argue is the result of the 20-year old decision.

What can you do? Evaluate and Document, Document, Document

”Don’t discriminate” is the easy answer. Unfortunately, we all know that it is impossible to control the whims of every supervisor, even with the best training and policies. Not discriminating is definitely a first step, however, what this Act really requires is good documentation. Too often employers find themselves in court defending a long-term employee’s claim with no documentation to show why certain decisions were made.

It is vitally important to document employee evaluations and decisions that affect their compensation and to keep this documentation in the employee’s personnel file. Having detailed documentation to demonstrate why an employee was evaluated a certain way or to explain why certain compensation decisions were made provides some institutional memory and proof that can help avoid or defend against claims that may come years after the decision was made.

You can also evaluate how your employees are being compensated. Examine each position. Are there large salary discrepancies from one person to the next? Is there some reasonable explanation for that discrepancy, e.g., seniority, experience, skill level, or geographic area? A good negotiator can end up with a significantly greater salary than an equally experienced and qualified counter-part. That is the beginning of a discrimination claim. As much as possible, you want to avoid discrepancies and, when they are discovered, make some effort to correct them. There is no guarantee that you will never face a discrimination claim under this Act, but by evaluating how employees are compensated and documenting compensation decisions, you can go a long way toward preventing claims and putting yourself in the best position to defend against any you face.