18 Tips for Reducing the Risk of a Lawsuit (Part III – Client & Staff Issues)

Maui CD 216aThis is the third of a 5-part series of ways to reduce the risk of a lawsuit. This part focuses on guidelines dealing with four miscellaneous topics grouped together as client and staff issues.

8.         Warning of Risks

Assumption of risk is one of the major defenses for clubs when sued by clients for injuries incurred. The effectiveness of this defense depends upon whether or not the client was aware of the risk – hence, the need for a notification of or warning of risks. Some ways in which this may be handled are 1) by verbal notice by the person supervising or teaching the activity (the problem here is that there is little documentation confirming that the warning was given); 2) by written notice (signage) in appropriate locations within the building (the problem here is that the client may deny having seen the warning; 3) by warnings, where and when appropriate, by the staff member who conducts the initial new-member orientation to the facility and equipment; and 4) by written notice in conjunction with the liability waiver when the client joins the club. The best method is a combination of the above.  There cannot be too many warnings.

9.         Preventing Sexual Harassment Claims

Health clubs are usually staffed and frequented by many attractive, young adults of both sexes who are often wearing revealing exercise clothing. In such an environment, it comes as no surprise that charges of sexual harassment sometimes arise. The claims generally involve employees lodging complaints against superiors, but may involve clients as well. Two types of actions that lead to sexual harassment claims are 1) quid pro quo which involves the granting of sexual favors for employment benefits (e.g., club manager requires favors for promotion or continued employment) and 2) hostile work environment which is when unwelcome verbal or physical conduct based on sex creates an unreasonable interference with an individual’s work performance.

A club can have significant liability when there is a sexual harassment claim. An operator should take all steps necessary to prevent sexual harassment from occurring, including affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their rights and how to complain, and developing methods to sensitize employees. Employers should familiarize themselves with the law and address all complaints.

10.       Institute Levels of Supervision

Two levels of supervision are crucial in your club.  The first level involves the general supervision of the facility and clients. You must make certain that each staff member understands how to properly supervise. Does he or she sit at a desk reading a magazine or talking with another staff member while supervising a weight room, aerobics area, or swimming pool? What is the staff’s duty regarding identifying hazards in the area or equipment in need of repair? Clearly specify his or her exact duties.

The second level of supervision involves the supervision of the staff. It is important that the operator observe the actions of employees, being certain that the employee understands and carries out his or her duties, is diligent in his or her supervision and instruction, and does not let socializing with staff and clients get in the way of other responsibilities. Consistency in this type of supervision helps to prevent poor instruction, sexual abuse, sexual harassment, and gives management a better idea of the employee’s value and abilities. This supervision can be done by casual observation and by being alert to what is going on in the facility. Both positive and negative observations should be documented and included in the employee’s file.

11.       Termination of Employees

Employee termination is a minefield of liability.  Wrongful termination is a frequent claim of disgruntled, terminated employees and care should be taken by the club to handle terminations properly. Fired employees frequently allege discrimination, retaliation, and failure to follow procedures in their termination. Two essentials in the termination process will help protect you – documentation and termination policies. 1) Documentation is essential in the process. Document everything: performance reviews, complaints by clients or other employees, conferences addressing performance, and disciplinary recommendations and actions. 2) Termination policies and procedures should be in writing and should be followed to the letter. The termination meeting[1] is important and, if well done, can reduce the likelihood of a wrongful termination suit. Schedule the meeting without delay; have a credible witness on hand; treat the employee with dignity; give the real reason for their termination and discuss only verifiable facts; and do not discuss the meeting with other parties.

See tips for Emergencies coming soon.

Dr. Doyice J. Cotten is professor emeritus in sport management at Georgia Southern University and has a consulting business, Sport Risk Consulting.  He is the coauthor of Waivers and Releases of Liability. The 6th edition (2007) is now available and provides a complete and up-to-date source of:  1) state waiver laws, 2) the latest information and rulings regarding waivers for adults and minors, 3) guidelines on how to write waivers (including examples), and 4) a full explanation (and examples) of a Participant Agreement. The book is available from three sources: 1) from the author ([email protected], phone: 912 764-4848); 2) from www.lulu.com; 3) from IHRSA (in PDF only).

[1] http://www.ppspublishers.com/articles/bulletin_ten_tips.htm