Here’s more inside scoop from the continuing education course on employment and labor law for attorneys I recently attended.
Lessons learned, Part 2:
What am I talking about here? I’m talking about HR Legal employee documentation. This was a recurring theme throughout the course. It’s a theme that is so basic to me and one I have been preaching for over 19 years, but this course reminded me to remind all you small/medium employers.
Here’s an actual clip from the course: the panel discussed a court case that ruled a class action for rest/meal periods violations could be based on the employer having no rest or meal period policy. Note: while we definitely recommend having a written policy to reduce your risk, none is required by law. Key to certifying a class action is the “common proof” of the employer’s wrongdoing. So “no policy” is the “common proof” to find the employer liable on a class wide basis when no policy is required. Interesting.
I think the panelists all agreed that ruling is farfetched and doesn’t make sense, but it gives California employers an insight as to how some California courts are ruling.
So what’s the prudent employer to do? Put in place policies and document employee discipline or other employee management issues.
Without attempting to include a full list, a few examples from the MCLE course will make the point:
Most employers should have one. Very tiny ones might be the exception but only because of cost/benefit and depending on the culture of the tiny employer (do you really need a 35 page employee handbook if you have 4 employees?).
But these day’s even the one employee employer better have policies in place for wage and hour law, i.e. time keeping procedure, requirement of accurate time keeping by employees, no working off the clock, payment of wages (including overtime), rest/meal period policies (and now as of 1/1/2014 “recovery period” policy), among other things. As the plaintiff’s attorney repeatedly noted during the course (see Part 1), wage and hour lawsuits, especially class actions, are his favorite. Don’t be on the other side of him (and others like him) because of a wage and hour law violation.
Properly drafted employee handbooks will contain these things among others designed to help prevent employee lawsuits and to protect your company in the event it is sued
This came up repeatedly during the conference.
Once you have a potentially problematic employee, you want to start documenting in writing. Written documentation will go a long way in proving your legitimate business reason for discharging an employee. After all you hired them for a reason and if they can’t cut the mustard or are constantly violating your reasonable work rules, then you ought to be able to discharge them right?
If you get sued though, having the documentation in writing shows your legitimate business reasons in “black and white.” It’s harder to claim the termination was for an unlawful one. And most importantly, the case will be less attractive to plaintiff’s attorneys.
It’s wise, to do them regularly, at least on an annual basis if you have the discipline to do so. But you can also do more “informal reviews” as you go to let the employee know whether they are meeting your expectations. Just document them. Even e-mail documentation will do.
Key is to be candid in your evaluations. Don’t sugar coat things because you think your employee’s feelings will be hurt.
Well, go ahead and sugar coat things if you want. But don’t cry to me when you call wanting my stamp of approval to terminate that 5 year employee due to poor performance, bad attitude, and a host of other problems, I ask to see the performance reviews, they are all 4s and 5s (exceeds expectations or “outstanding”), and I tell you firing the employee is risky.