(Published December 22, 2008)
To keep your company on the right side of the legal tracks, resolve to make these new year's resolutions. Repeat after me.
I resolve to audit company policies. I'm not just talking about updating your policies in light of changes to the Family and Medical Leave Act and the Americans with Disabilities Act. Company policies should be reviewed at least once a year to ensure that they not only remain compliant with changes in federal and state laws, but also that they match the reality of your organization. Policies that were written even just a year ago could now be out-of-synch with the company's goals and needs.
I resolve to not rely on employment at-will when terminating employees. Even though you don't need a good reason to fire an employee, let alone any reason at all, that doesn't mean you should rely on this legal technicality. Why? Because employees who are not given a reason for their termination tend to fill in the blanks, attributing the termination to the discriminatory or retaliatory animus of someone in the organization. Besides that, what kind of a message is management sending to the individual and to the rest of your staff when you fire someone for a reason that is equivalent to "just because I can"?
I resolve to keep meticulous documentation. Poor record-keeping practices can make your job more challenging than it already is. It will be extra challenging trying to prove that: an employee deserved to be disciplined or terminated; retaliation was not a motive; an individual did not deserve to be hired or promoted; an employee had performance deficiencies; the company conducted a proper complaint investigation; employees were correctly paid their regular and overtime wages; staff received adequate training; employees were aware of company rules; and the list goes on.
I resolve not to be too nice. You never want to overreact and fire an employee before you've conducted a proper investigation and gone through the appropriate disciplinary procedures. But under reacting to a situation can be just as bad. The more you let an employee's infractions slide, the harder it will be to prove later that you legitimately fired him/her for their poor track record (because there is no record!). The harder it will also be to prove you didn't discriminate against another worker for whom you didn't let similar infractions slide.
Do not allow managers to make the mistake of trying to motivate under performing workers with raises, bonuses, or overly positive performance reviews. If the employees' performance doesn't improve and they must be fired, it will be harder to prove that they were legitimately fired for poor performance.
I resolve to keep emotions out of employment decisions. It can't be said often enough that managers must not make employment decisions based on their emotions. A manager who is angry with an employee for filing what the manager feels is an unjustified discrimination complaint against them and reacts by taking an adverse action against the employee can get the company hit with a retaliation charge. Keep a watchful eye over negative employment decisions that affect employees who have recently engaged in protected activity.
Your anti-retaliation efforts must start long before an employee files a complaint. Keeping careful, accurate, and timely documentation that supports a negative job action will go a long way toward dispelling a retaliation claim, even if the timing of the negative job action is suspect.
I resolve to keep Legal in the loop. The time to seek the advice of legal counsel is not when a legal problem is boiling over; rather, nip problems as they begin brewing. Although it may not be cost-effective to involve Legal at every turn, if you have any doubts about your company's ability to handle a situation alone, it is worth it if it means staying out of court (and not racking up additional legal bills).
I'm sure you can think of plenty of others to add to the list! Happy new year!
Gloria Ju
Editor in Chief
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