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Top Tips for Employer Risk Mitigation: Perspectives on Employment Law from a Backcountry Skier

February 23, 2021

As a backcountry skier, the single quote that stuck with me most from my Avalanche Safety Training course was that the best way to survive an avalanche is to avoid getting caught in an avalanche.

For my employer clients, I think the same advice applies: the best way to survive a lawsuit is to avoid getting sued. The key principle is the same – be proactive about understanding and mitigating risk.

So, what are a few of the best risk mitigation strategies for employer?


(1)    Use Written Employment Contracts & Policies

A well-drafted employment contract is one of the most effective tools to reduce risk for employers, particularly when it comes to terminations. Contracts can also be used to protect legitimate business interests unique to your company, and set employee expectations at the outset.

Policies (in addition to being legally required, in certain cases) are another way to ensure employees know what your company standards are, and what happens if those standards aren’t met.


(2)    Cultivate Mutually Respectful Employment Relationships

In addition to all the non-legal benefits of a mutually respectful workplace, it also has the practical effect of reducing the risk that an employee – even one with a concern or complaint – will sue you.

It also reduces any basis for an employee to argue that you have acted in bad faith, which is becoming an increasingly high $ basis for damages in court actions.  


(3)    Document, Document, Document!

The most persuasive evidence in legal proceedings is the written word.

Keep timely, accurate, and detailed records of communications with employees, particularly around issues that you know may be contentious. If your communication is better done in person or over the phone, follow-up on that interaction with an email or letter that confirms the discussion.


(4)    Proactively Identify Risks

Identifying risks means that you are proactive in realizing when a particular situation or employee has the potential to escalate into a legal problem, and allows you to intervene early.

For example: a manager you have observed yelling at staff members might be a bullying and harassment complaint waiting to happen; an employee suddenly struggling with absenteeism and irritability may indicate a mental health accommodation requirement; and a new hire showing signs of insubordination may need to be let go during their probationary period.   


(5)    Get Legal Advice Early

Talking to an employment lawyer early and often generally ends up being a much more cost effective way to get legal advice than calling us after you have been sued by a disgruntled employee.

In addition to helping address concerns at the outset, we can also help with identifying risks, ensuring you have effective and up-to-date policies and employment contracts, and work with you proactively to keep your calls with us short and low-stress.