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07/09/2025

The top 10 reasons employers get sued

Source: HRDive, June 30, 2025

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.”

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