So, you’ve given up carbs, created a budget, and kicked your Facebook/Candy Crush/Starbucks/shopping /smoking/swearing habit. Good for you! But the new year is not just a time to clean up your act in your personal life. It’s also the perfect time to adopt better habits in your professional life, particularly if you are an employer. To get you started, PMP has prepared this list of the top five new year’s resolutions for employers.
Always Involve an Experienced HR Consultant or Counsel in Termination Decisions.
When you are considering firing an employee, it is crucial that you assess the facts from a legal/HR perspective. While you may be fully justified in your decision to terminate, there may be steps you should take before doing so. For example, if your company has a progressive discipline policy, adhering to that policy will help you defend the decision to terminate should a complaint arise. Also, if the employee has previously made a complaint involving discrimination, wage and hour issues, or other legal rights, then an HR professional or counsel can help you ensure that any termination decision will not be viewed as retaliatory. Thus, picking up the phone for a legal/HR assessment of any firing decision can help a company avoid significant liability in the future.
This resolution relates to Resolution No. 1 above. Any disciplinary act, incident of employee misconduct, or performance issue that may be relevant to a decision to terminate should be thoroughly and contemporaneously documented. It is not necessary to be overly formal in your documentation style; in many circumstances a simple email to the employee or to the file will suffice. It is also important to document requests for FMLA leave, other leaves, and religious or disability accommodation, as well as the company’s responses to such requests. Likewise, the employer’s response to any employee complaint about discrimination or the terms or conditions of employment must always be documented.
Learn to Recognize and Respond Appropriately to Requests for Disability Accommodation, Religious Accommodation, and Family/Medical Leave
Building upon No. 2 above, it is important for employers to recognize an employee’s request to exercise legal rights when it is made. Employees need not use the words “family and medical leave” when making an FMLA request, for example. An employee might simply say, “Hey, I need to take some time off to take care of my mom while she recovers from surgery.” Supervisors must be trained to recognize and appropriately address such requests when they are made.
Stop Retaliating. Period.
Employers generally are aware that retaliating against an employee for exercising legal rights is unlawful. But the ability to apply this general awareness to specific situations is another matter. Too often, employers engage in unlawful retaliation without realizing they are doing so. For instance, an employer might be angered that an employee publicly complained on Facebook about his pay, or about other conditions of his employment. Many employers in this situation will discipline or even terminate the employee, believing they have every right to do so to protect the company from further embarrassment. But in fact, the employee’s Facebook rant may well have been protected activity under the National Labor Relations Act. For another example: an employee may complain that she was sexually harassed. Upon investigating the complaint, the employer may determine that there was no unlawful harassment. The employer might then decide to fire the complaining employee for making a false complaint. But the employee may be protected under the law from retaliation even if the complaint turned out to be without merit. This means that terminating the employee may constitute retaliation. To stay on the right side of retaliation law, employers should adhere to Resolution No. 1 above. And in addition to getting professional advice before terminating an employee, employers are well advised to seek such advice before engaging in any discipline short of termination if the employee has previously made a complaint or request that may be protected under the law.
Be Consistent (Within Reason).
When granting or denying employees’ requests, disciplining employees, paying severance, or making a host of other decisions affecting employees, it is advisable to be as consistent as possible. Treating employees the same and according to well-communicated, easily understood rules and procedures can help employers avoid claims of discrimination based on race, religion, age, disability, or other protected class status. That being said, there are times when deviation from the norm is appropriate. For example, you may have offered severance to an employee you terminated six months ago, but the circumstances surrounding your latest termination decision – such as employee misconduct—may make you reluctant to offer this employee the same benefit. Whether consistency is important in any given situation can be a tough call for employers to make. To avoid liability arising from inconsistent practices, consult with an HR professional or counsel before going rogue.
While not an exhaustive list of rules by any means, these resolutions are intended to put your business on the road toward legal compliance and liability avoidance in 2017. For additional help in this regard, contact PMP about its training programs, which are designed to give management the tools they need to comply with all five of the above resolutions and more. PMP is also available, together with its affiliated attorneys, to assist you with specific situations, provide guidance on best practices, and update your company’s employee handbook. Happy New Year! Contact us at 800-921-2195 or 516-921-3400. You can also visit our website http://www.pmphr.com/ or e-mail us at info@pmpHR.com.
This article is intended for general information only and should not be construed as legal advice.