Employee Relations
& The Law
by Bruce Leonard
Beal, Esq.
An ounce of prevention is worth a pound
of cure. This proverb is
perhaps oft-repeated but has more than proven itself in
employer-employee relations.
The cost of a marginal employee can have a dramatic effect
on your firm’s bottom line. This
article explores how employers and employees may improve their relations
and mitigate the tremendous volume of litigation now existing between
employers and employees.
Recruiting,
Interviewing & Hiring
Being the first step, it is the most
critical step. Recent
legislation and court decisions have
added new potential liabilities for sex, disability, race and gender
discrimination, which should be taken into account at this stage. New
domestic partnership laws also have implications for employee benefits.
Resources to consult in these areas include experienced human
resource persons, the California Chamber of Commerce website, seminars,
and your corporate counsel. Ensure
that your company keeps up-to-date in this area.
My
experience, having worked for years in the employment arena, has shown
that the “marginal” employee is the employee most likely to resort
to litigation when such employee becomes “aggrieved” for any reason.
I define marginal employees as persons who are more likely
to assign responsibility (blame) to others, rather than to themselves.
Employers
should consider the use of personality, aptitude and integrity tests in
the hiring process in an effort to determine whether a potential
employee takes responsibility or assigns responsibility to others, and
is otherwise job capable and ethical. These tests must be job-specific-related and
non-discriminatory.
There
are many providers of employment testing.
A search of the Internet will disclose them.
It is recommended that such tests first be given to present
employees to determine which test results indicate a good potential
employee, if your firm contains enough employees to produce
statistically significant results.
Maintaining
Employee Relations
Once
hired, an employee needs to be trained so as to know the requirements of
the job, as well as the policies, procedures, and other rules applicable
to the job. Ignorance in
these matters is not bliss. Well-prepared
employment manuals, policies, procedures, and forms, made easily
available to employees upon your firm’s network, will go a long way
towards guiding your employees, and their supervisors, around the rocks
of illegal, unethical, and unproductive behaviors.
These items should be considered living documents and adjusted as
later experience dictates after human resource or legal review.
Implement
employee grievance procedures and channels, so as to give employees the
opportunity to surface and solve potential problems inside your firm
first, rather than outside. Promote
early detection, diagnosis, and treatment of employment problems.
Document,
document, document. Thorough documentation tends to defeat undocumented employee
claims in the minds of agencies, judges, and juries. These documents should be placed in the safety of the
employee’s file and commenced early in any problem-solving process,
If you leave it to your word versus the employee’s, your firm
is more often than not going to lose the claim.
The fact that your employees know that there is a continuous
record of employment events will prevent most employees from pressing
legal claims.
Evaluating,
Disciplining & Firing
Employees
should be evaluated routinely and accurately.
Nothing looks worse to judges and juries than numerous glowing
employee evaluation forms followed by one ugly one produced right before
termination of the employee. Ensure
that evaluation sessions and reports are sufficiently detailed and
scored accurately. No employee is perfect, and routine evaluations can be a
productive way of improving, or monitoring deteriorating, employee
performance. Raises, or
lack thereof, may be based upon these evaluations.
Discipline
should be fast, fair and firm. Do
not let significant employee misconduct go unanswered, even if your best
employee is involved. Document
the offense and your firm’s advice to the employee in the employee’s
file. If the employee is
later terminated for repeated misconduct and/or the employee evaluations
discussed above, you are already carefully documented and thus not
intimidated about terminating the employee.
Be
careful, however, about promoting progressive disciplinary procedures in
your employment manual and policies, so that you may terminate an
employee immediately for a major offense such as dishonesty.
Hopefully,
your evaluation and disciplinary procedures and documents will lead to
more productive and happier employees, rather than justified
terminations.
Hard
Work versus Hard Work
As any employer who has been through
one or more employment legal proceedings can attest, the cost, effort,
loss in productive time, embarrassment, and de-moralization involved in
responding to, preparing for, and attending depositions, document
requests, hearings, and trials is no greater than the cost and effort
involved in establishing proactive employee relations, as recommended
above. In addition, your
firm will have better employees, better products and services, and a
better bottom line.
Caveat:
I publish these brochures for your interest and to provide information
on legal issues that may affect you. Although I use only reliable
sources for the contents, every case is different depending on its
particular facts. You should not take any action based only on the
advice in these brochures. You should discuss any proposed reliance or
action based upon this brochure with me or another lawyer first.
