Comedian George Burns quipped, “Look to the future because that is where you’ll spend the rest of your life.” Although complaints, investigations and litigation are an inevitable part of being an employer, preparation is key to avoiding bad outcomes. Later articles in this series will focus on specific trouble spots.
The following basic practices in hiring, employment and termination, however, lay the foundation for a better outcome, regardless of the trouble to come.
- Focus on what matters in job advertisements, applications, and interviews. This includes information such as the applicant’s education, work experience, references and special skills relevant to the position. Avoid questions that elicit information that should not matter, such as race, religion, disabilities, union or political affiliations and marital status. Decisions based on results of criminal record checks must be tailored to the job at issue. Also, be careful about sources that unwittingly expose you to information you do not want—such as the applicant’s Facebook page.
- Ask the applicant about contractual obligations to former employers. It is better to know up front if the employee is bound by a non-compete or other restriction with her old employer, so that you can try to work around it or decide not to hire the applicant. If the applicant tells you she is not bound by any such agreement, get her to say that in writing.
- Make sure your restrictive covenants (non-compete, non-solicitation and non-disclosure) comply with applicable law. Ideally, the covenants should comply with both the law that governs the agreement and the law of the state where the employee works. In some states such covenants must be presented with the offer of employment. In all states, the covenant must protect the employer’s legitimate interests. One-size-fits-all covenants are convenient, but not in the company’s best interests.
- Use the magic words. Maintain appropriate disclaimers in applications and handbooks stating that employment is “at-will,” and avoid statements that create expectations about “procedural due process”—such as mandatory progressive discipline.
- Inform new hires of your company’s expectations at the beginning of employment. Review duties, policies and expectations with employees on the first day of work, and any time duties and expectations change during employment.
- Arm your frontline. Supervisors are your front line; they are generally the first member of management to address a problem. Their missteps, however, can be imputed to the company. Provide supervisors with training and written guidance about key personnel procedures. Also train them to be aware of legal red flags, such as protected activity, less favorable treatment compared to co-workers outside the employee’s protected class and decisions based on absenteeism or health issues, and to consult with HR and legal counsel if they arise.
- Document, and document correctly. Counseling, discipline and performance evaluations should be documented in a timely manner. Require objective standards whenever possible, and insist on specifics and accuracy rather than generalities and platitudes. Keep supporting documentation—including emails, objective performance data and notes from interviews with witnesses.
- Be consistent when circumstances are the same. Treating similarly situated employees consistently goes a long way in defending against claims of discrimination.
- Give employees the chance to complain. Implement fair open door policies, grievance procedures or other complaint mechanisms. Giving employees the opportunity to complain could reveal otherwise unknown problems. In addition, an employee’s failure to complain can raise doubt in the jury’s mind about the severity, or existence, of the claimed wrong.
- Remember what you have promised. Before terminating an employee, determine whether there are any contractual arrangements that may place legal limitations on the company’s right to terminate.
- Never go it alone. Have a second person in the termination conference to confirm what was said.
- Be considerate. Treat the employee with dignity and protect the employee from unnecessary embarrassment. Make special arrangements for removing personal effects. A little courtesy can go a long way toward making the employee less inclined to sue.
- Be candid about the reasons. Do not disguise the real reason for termination in an attempt to spare the employee’s feelings. Taking one position at termination and then a different position down the road can lead to the impression that the employer’s claimed justification for termination is a pretext for an unlawful motive.
- Do not let the employee walk out the door with the company’s stuff. Have the employee turn in all company property, including data devices, and have the employee sign a statement representing that he has not retained any company property or information. If you suspect that the employee is preparing to compete, do not turn on any data devices until a forensically sound copy of the device has been made. Otherwise, valuable data could be lost.