SAN DIEGO — During a conference session last year on the top 10 reasons employers get sued, Mario Bordogna didn’t know whether it was the attendees in the front row who were most desperate for the session, or those hiding in the back, he said.
This year, at SHRM 2025, the Bowles Rice LLP partner said that because of the session’s early start time – bright and early at 7:30 a.m. – it was clearly everyone.
While “the risks are great, more than ever before” for employers to run afoul of the law, Bordogna highlighted several issues he’s been advising employers on for decades — issues employers may know about but still neglect to address until it’s too late.
In descending order, here are the top 10 — and how employers can prevent them from happening.
10. Performance review sabotage
The scenario: After putting up with poor performance for months or even years, a manager finally moves to terminate a problem worker. When HR goes to review the worker’s performance history, however, “all you see is 4s and 5s, ‘exemplary’ — this employee’s perfect,” Bordogna said. Of course, the employee thinks it’s suspicious they’re being let go and begins looking for alternative explanations, like discrimination.
The solution: Regular documentation should be a part of workplace culture. In fact, “make it a pre-requisite for separation,” Bordogna said, suggesting managers be told they cannot ask for a worker’s termination without documented evidence of poor performance.
9. Playing ‘hide the ball’ at separation
The scenario: An employee needs to be let go for whatever reason, and, because the worker is at-will, the supervisor knows it’s fine to do at any time as long as it isn’t for an illegal reason. The supervisor terminates the worker and provides no explanation. “When you don’t give a reason, you give the employee the opportunity to fill in the gap themselves,” Bordogna said.
The solution: Memorialize the reason, whatever it is. “Put it in writing,” he said. “You have to have your ducks in a row.”
8. An insufficient interactive process
The scenario: An employee with a disability asks a supervisor for accommodation. The two talk it over, and the supervisor dismisses the request, determining this “isn’t how things are done” at the workplace. The discussion ends, inviting a disability discrimination lawsuit.
The solution: Employers must use a checklist, be thorough with those steps and ensure job descriptions are accurate and up-to-date. “Don’t be the one holding the bag,” Bordogna said, adding Americans with Disabilities Act claims are among the most common.
7. Fumbling the investigation
Scenario: An employee files an internal complaint. Being too busy, deciding the worker is just being dramatic or for another reason, HR delays, conducts a quick and incomplete investigation or doesn’t even conduct one at all. In turn, the worker decides, not incorrectly, that the investigation was illegitimate and word spreads throughout the organization, fostering skepticism (in addition to a potential lawsuit).
The solution: Have investigation processes in place, with an investigator already identified and thorough steps laid out. It’s OK to make credibility calls during the investigation, but “take complaints seriously,” Bordogna said, and close the loop with whomever filed the complaint. “If you don’t let them know … they’ll think you don’t care.”
6. Fundamental pay errors
Scenario: An employer doesn’t track pay or doesn’t track it properly, or fails to calculate the regular rate of pay properly. Exemptions are wrongly applied. “If you don’t get these things right, there’s only one thing that’s gonna happen,” Bordogna said. “The whammy is gonna come take your money,” he said, referring to the game show “Press Your Luck.”
The solution: Get the basics right on regular rate of pay. Track hours meticulously. While these approaches may seem elementary, “I can’t tell you how many employers don’t have their hours tracked,” he said.
5. Ignoring the organization’s own policies
Scenario: An employer has a thorough handbook, but policies are inconsistently enforced or not enforced. One worker gets in trouble for violating a policy, while another skates by without issue. “This one speaks for itself, but I’ve been doing this 30 years and I still see it,” Bordogna said.
The solution: Regularly update handbooks as laws and regulations evolve. Make it a practice to review policies before any discipline is administered. Often, employers think they’re enforcing a policy, but the handbook doesn’t reflect what they think it does, he said.
4. Untrained or poorly performing managers
The scenario: An employee leaves after a manager drives them out. Because the manager was not compliant in implementing policies, whether it comes to leave, accommodation or something else, a lawsuit soon follows.
The solution: Train, train and train some more. “Be thoughtful about the authority you give [managers] in the first place,” Bordogna said; such workers tend to be the ones others come to when it comes to many different types of compliance requests and issues, making their control a potential liability. Try to centralize and provide oversight when it comes to decision-making about HR-related matters, and even remind them of personal liability risk if necessary, Bordogna said.
3. Misclassification
The scenario: An employer seeks out a worker for a task or service and engages them as a contractor to avoid certain legal obligations. There is no written agreement. The employer begins exerting more control or the worker otherwise begins to behave more like an employee, inching both into a classification gray area or more straightforwardly violating the Fair Labor Standards Act.
The solution: Stay on top of current U.S. Department of Labor policy and re-evaluate use of independent contractors frequently. While this is an age-old issue most employers are aware of, it’s constantly in flux, Bordogna said, allowing unsuspecting employers to be caught by surprise.
2. Neglecting leave alternatives
The scenario: An employee with a serious health condition uses all their leave allowed through the Family and Medical Leave Act, but still cannot come back to work. The supervisor believes they have fulfilled their obligation and terminates the worker. The worker brings an ADA lawsuit.
The solution: Review all employer-provided leave options for coverage. A worker with a serious health condition also likely qualifies for disability accommodation — and the U.S. Equal Employment Opportunity Commission has clarified that additional leave after FMLA exhaustion can be a reasonable accommodation. “You can’t just usher them out the door,” Bordogna said. “It’s not that simple.”
1. An unhealthy work environment
The scenario: Behavior that is not unlawful, but unpleasant, begins to proliferate. Bullying based on individual personalities, but not protected class, is allowed to fester. Workers are unhappy and feeling vulnerable. This behavior creates “gateways to conduct that actually is unlawful,” leading to lawsuits.
The solution: A top-down culture of intolerance for discrimination and harassment is essential, as well as a system for reporting certain behavior and a clear chain for where such reporting goes and how to deal with it. Account for how more recent ways of working, like widespread virtual environments, can still allow harassment to be experienced or perpetrated. “Bullying is mostly not unlawful,” Bordogna said. “But it’s not where you want to be.”