Employee Relations and the Law
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.