See part 1
In my last blog, I listed the top three mistakes that Ernie Malaspina talked about in a recent presentation to HR professionals. Here are the remaining three of his “Dirty Half-Dozen”:
Mistake #4. Failing to compensate employees for all hours or days of work
An important starting point is to properly identify each employee’s compensable day and/or hours of work. With today’s digital economy, it is not uncommon to see employees spend time sending or receiving emails outside normal business hours. Is that compensable? What about working remotely from home after hours? What about holiday shutdowns? Many employers fail to consider the effect of a shutdown on their wage payment obligations before finalizing their plans.
How to avoid these mistakes:
- Some laws have not kept up with changing times. Understand and accept that “the law” and modern business customs are sometimes incompatible. But “it’s the law” and it can be costly not to comply. If the law needs to change, wait until the law is actually changed.
- Consider restricting non-exempt employees’ access to email outside normal business hours.
- Do not allow managers to create a culture in which employees are expected to work without pay.
Mistake #5. Poor Documentation of Performance Problems and Misconduct
The saying, “Document, document, document” cannot be overemphasized, since decisions based on an employee’s performance or misconduct are vulnerable to challenge. A discharged employee may contend that the decision was based on race, gender, age, disability or religion, for example and deny that they have performed poorly. Misconduct not only needs to be documented, but also handled consistently especially if it leads to termination. The employee may deny engaging in the misconduct at all, or may claim that the behavior has been tolerated in the past.
While documentation is good, care must also be taken on the exact words used in the documentation, as these can also be used against the employer.
How to avoid these mistakes:
- Document poor performance and misconduct as it occurs. Include description of the incident, date, and full names of persons involved.
- Check with legal counsel when documenting misconduct that could be characterized as discrimination or harassment. The wrong language may be construed as admission of liability if the complaining employee asserts a claim.
Mistake #6. Conducting the Termination Improperly
The decision to terminate employment is the decision that most often leads to lawsuits. Sometimes companies inadvertently provoke litigation by how they deliver the message, which can trigger feelings of anger or humiliation. Other employers increase their risk of liability when they make unnecessary statements about terminated employees such as mentioning that the employee left involuntarily, the reason for the decision, and other circumstances of their departure.
How to avoid these mistakes:
- Treat the employee with dignity and respect. Conduct the termination meeting privately.
- Minimize discussion of the reasons for the termination decision. What you say can and will be used against you in a court of law. Some companies have two persons present so one can serve as a witness to the conversation.
- Use discretion when speaking about former employees after termination. Otherwise, you expose yourself to risk of liability for defamation and invasion of privacy.
Conclusion:
Risk is inevitable in the regular course of business, but employment lawsuits can be mitigated by being aware of best practices and avoiding the common mistakes listed above. HR and Legal act as consultants when managers take calculated risks. As a daily business partner, HR has an opportunity to help managers understand that some risks are not limited to just the specific employee in question but can potentially extend to an entire group of employees – something that can be very costly to the company.