The Risks of Applied SSH 2

Minimizing the legal risks to the organization

The answer to minimizing the legal risks of improving your organization’s labor quality and structure is being proactive. Write the behavioral competency model for each role before anyone classifies anything, define the competencies in observable job-related terms, and commission a validity study showing they predict actual performance. The Uniform Guidelines exist to give employers a road map for defending selection practices that produce uneven results, and a validated instrument applied consistently is the strongest shield available.

Run adverse impact analysis twice a year. Then run it through outside counsel, because an unprivileged internal audit that finds a problem and sits in a shared drive for a year is a plaintiff’s opening argument establishing that you knew there was an issue and did nothing about it. Document contemporaneously, apply progressive discipline uniformly, and treat men who did the same thing the same way every single time, without exception, because inconsistency is what actually destroys employers in wrongful termination cases. Policy is seldom a problem. Inconsistency in applying the policy is.

Then build the exit, and understand that the framework’s real legal value is not defensive but predictive. Ensure that a specified human being with genuine authority is responsible for every adverse action, so the system advises and an employee decides; this preserves the individualized-assessment defense and keeps you outside the statutory definitions of an automated decision tool. Formalize the reclassification appeal the framework already requires and call it what it legally is, which is documented internal due process, and which juries weigh heavily when they are deciding whether you acted in good faith.

Route separations through release agreements with real consideration and full OWBPA compliance for anyone over forty. Keep arbitration agreements with class waivers, which Epic Systems v. Lewis confirmed are enforceable. And then consider what the system is telling you. The man most likely to sue after being fired is the man whose opinion of himself most wildly exceeds his documented output, which is not merely correlated with the Gamma profile but is very nearly the definition of it.

A framework that flags him eighteen months in advance is a framework that tells you which files to keep immaculate, which conversations to hold with a witness in the room, and which separation to buy out with four weeks’ severance and a signature rather than defend for two years at four hundred dollars an hour. The gains described in this chapter are real. They are also perfectly capable of being devoured by the legal department, and the only thing standing between the one outcome and the other is an organization run by an exeutive who is disciplined enough to know the difference between what the organization understands and what it documents.

But the reality is that between improvements in the hiring process and the understanding that less is almost always more when it comes to certain behavioral patterns, you should not need to fire anyone. Be generous in buying out suboptimal employees. Help them find new positions in other organizations that are a better fit for them. There is no need to be vindictive or vengeful; the objective is to remove the friction, not hurt anyone’s feelings.