Tag Archives: sexual harassment

It’s Bonus Time ! Top Ten Tips for Business Owners to Follow Regarding Their Employees.

This is the time of year where companies begin the process of evaluating their employees, their businesses and their future.  It is often a period in the life of a company where managers take stock of themselves and analyze those employees who have excelled and those who have not.   Compensation is often tied to an employee’s ability to excel during the course of the year and there are several things which companies can do in order to maximize employee efficiency and insulate themselves from future legal problems.  Here are some time worn techniques for preventing legal problems with your employees during  the coming year.

  1. Provide Written Job Descriptions.

The first question a new employee will ask is – what am I supposed to do?  This is a reasonable question and one which an employer should be readily able to answer.   An employee’s job should not be a guessing game.   Instead, the employer should be able to provide a written job description setting forth, in detail, what is expected.   The job description should be specific but not too restrictive so as to preclude an expansion of the employee’s responsibilities at a later time if necessary.   The job description should clear up issues regarding the employee’s responsibilities and will likely lessen friction between the employee and his or her co-workers.

  1. Do a Background Check.

Convicted felons will want a job at your company.   When these people walk into your office, they may not look like convicted felons but it is up to you to determine that.  You can usually find this out by doing a background check which may cost no more than $100. (A Google search and a check of a prospective employee’s Facebook page may also help).

Naturally, there are convicted felons who have reformed themselves and are entitled to a second chance.   The question you have to ask is whether you want to be the person who gives it to them.   You take on additional risk when you hire somebody from this category because, in a subsequent lawsuit, it is likely that a lawyer will use this against you in the event that it turns out that this particular employee engaged in wrongdoing while employed at your company.   Counsel’s argument will be that you should have known better.

  1. Provide Training.

There is nothing that a new employee will like less than being dumped into a cubicle by their new supervisor without any training. This sends the employee an implied message – “we don’t care about you” or just “figure it out.” No employee wants to believe that their new employer does not care about them; after all, if the employer does not care about the employee, than why should the employee care about the company ? Someone needs to walk the employee through an average day at the office. How to work the computer programs, the copy machines, the fax machine (if you still use one). This will ultimately save the company time and trouble.

  1. Consider a Non-Compete Agreement.

Depending on the type of business you run, Non-Compete Agreements can be extremely valuable.   After all, you do not want your employee walking off with all of your clients in the event that you determine that the employee has to be terminated or that the employee leaves on his or her own accord after receiving an unsatisfactory bonus [1] Non-Compete Agreements generally have to be tailored reasonably to a limited area and time in order to prevent the employee from later arguing that you are trying to prevent them from working altogether and forever (Courts don’t like that).   The Courts have the power to strike down agreements which are overly restrictive.   Accordingly, before having an employee sign a Non-Compete Agreement you should consult with counsel.

  1. Maintain Clear Lines of Authority.

In some companies, it is often unclear who is the boss.   This is a circumstance that is fraught with peril.   Someone has to be the boss and it should be clear who that person is.   Each employee should have a supervisor to whom they report and who can supervise their work.   An employee working alone is a recipe for a problem.

  1. Provide Constant Feedback.

No employee wants to be surprised at their annual performance review.  There is certainly a risk that this will occur if the employer fails to provide proper feedback during the course of the year.   In many companies, an annual performance review is simply insufficient and reviews should be conducted more than once per year.   In this manner, there is a greater likelihood that an employee who may be underperforming will improve.  Why wait until December to give an employee feedback when you already know what you may want to tell them in June? 

  1. Maintain an Employee File.

Even the smallest companies should maintain a personnel file for each employee.  In the file your company should include the employee’s application, health insurance information and related data.  It is also important that written performance reviews be placed into the file together with any memoranda created by the company regarding the employee’s performance (good or bad).

It is important that the employee’s file be “papered” before termination takes place since this will likely assist you in later combating a discrimination claim.

  1. Be careful about discriminating and/or retaliating.

Federal law creates certain protected categories of individuals.   The law protects against discrimination based upon age, gender, race and disabilities, to name a few.   Accordingly, the employer should be careful to make certain that if an employee is being terminated, or is being discriminated against in some other way, that an even handed approach be utilized. In these circumstances, the employee’s employment file will be critical.   That is the first question an employment lawyer will ask after a lawsuit is filed – – is there an employee file and what exactly is in there?

  1. Maintain an Employee Handbook.

Employee handbooks can be a wonderful tool to settle all sorts of issues.   An employee handbook will detail the company’s non-discrimination policies and provide options for the employee to complain if he or she is having a problem with his or her supervisor.   It will also provide a place where sexual harassment complaints can be channeled.   The employee handbook is often a useful exhibit to be used in an employment discrimination trial and allows the employer to state:   “We provided mechanisms for complaint and the employee did not follow them.  We are a non-discriminatory company and that point is emphasized in our employee manual.”  See Exhibit “A”.  This type of evidence can be very persuasive in an employment discrimination trial in which the company’s culture and attitude are at issue.

  1. The Humane Termination.

Sometimes it is necessary to terminate an employee from their job.  While this is, most often, a difficult decision, and a task that almost no one wants to perform, there are ways to handle this which will make it less likely to result in a lawsuit.  It is often a good idea to contact counsel prior to an employee termination particularly in a case in which you believe there may be some difficulty.   As a general rule, it is always a good idea to have more than one person present. Therefore, there will be some corroboration as to what the employee is told during this difficult moment.

Generally, it is a good idea to offer an employee severance pay.   This will help minimize the employee’s anger or surprise. In exchange, it is reasonable to ask the employee for a release. In cases of older workers (over forty), it is important to include certain language in the severance agreement and release which complies with the Older Worker’s Benefit Protection Act.   Accordingly, terminating an employee of an advanced age is often not a simple matter and should not be taken lightly.  

Conclusion.

In sum, there are certain rules to follow when hiring, supervising and terminating employees which will prevent litigation and massive expenses later on.   Regular communication with competent counsel on this point could prove invaluable.


[1] These types of agreements may be unenforceable in the legal profession.

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Five More Things to Include in Your Company’s Employee Handbook

       Last week we delineated, in this Blog, the reasons why every company should have an employee handbook.   If you are already convinced about that, you  do not need to go back and read that article again.   However, if you missed it, that article is contained in this Blog and you should review it before reading further.   This article will explain five things which should be included in your company’s employee manual and why they are important for any business.

1.    Employee Reviews

            Employee reviews can be some of the most tense, cumbersome and unpleasant experiences imaginable for both employer and employee.   However, it does not have to be that way.   Many companies, and their employees, make it that way.   This article will explain how having an employee manual, and conducting an employee review in accordance with the terms of the manual, can eliminate anxiety and improve employee performance and retention.

            The company manual should explain that employees will be reviewed twice per year.   That’s right – – twice per year.   You might think that that sounds overly burdensome.   What is overly burdensome for a manager/supervisor is to carry negative feelings and ill-will around about a particular employee for an entire year.   That will really wear you down!

            Try this instead – – review your employees at the end of June.  This will give your employees an entire six months, before bonus time, to improve.   Your comments, positive or negative, will not then come as a surprise.   Moreover, if employees are told in the company manual that there is a twice  yearly review process, guess what?   Employees will be on their toes for the entire year not just for the last six weeks before bonus time.   Thus, a description of the review process, conducted twice yearly, is an important aspect of your employee manual.

2.            Chain of Command.

Everyone wants to be the boss.   Nobody wants to be an employee or an underling.   The problem is that, in some companies, it is unclear who is the boss and who is the employee.   This can lead to problems.

Your company manual should specifically delineate who your employee’s direct supervisor is.   Mentioning that person by name is not a bad idea or, at the very least, by job description and/or title.   This way there will never be a doubt to whom the employee should report.   It is the employee’s supervisor who should conduct the review as well.   The employee should be aware that their direct supervisor will be the person conducting the review.   This should be explained, upfront, in the manual.

3.            Use of Company Property.

            Sometimes, employees get confused.   They think they own the company and, as a result, are entitled to take with them whatever it is that they want.   Unless this is spelled out, you will soon see that reams of paper will disappear from the copy room along with toner, pens, pencils, and other items.   Along the same vein, employees will take the opportunity, if unsupervised, to surf the web and look at Facebook, the local newspaper or their personal email accounts.   Since all of these things, including the company’s computers belong to the company, the company is permitted to determine how these things will be used during regular business hours.

            Accordingly, a well written employee manual will have a provision that says “Surfing the Web for Personal Reasons,” or “Taking Supplies Home with You from the Copy Room,” are unacceptable and could be grounds for termination.   Not that the average employer would fire someone for swiping a few pencils – – nonetheless, these items could certainly come in handy if, or when, you have to defend an employment discrimination suit from this employee later on.   The moral is, therefore, make it clear in your employee manual what constitutes company property and how it is to be used.

4.            Computer Usage.

            Lawyers who file discrimination suits often have a field day hiring technical people to image and infiltrate the computers of company employees.   What are they looking ?   Lots of stuff, including employees who surf the Web for inappropriate sites.   Once an inappropriate photograph appears on the screen of a company employee, it is the same thing as posting that picture on the wall and, while the average person may think that the offended employee is a “prude” this behavior, and the use of an employee’s computer, can become a key piece of evidence in a hostile work environment claim.   Such conduct will give fuel to the complaint that some people, most often women, find it impossible to work in a company where inappropriate images are regularly displayed on computer screens.

            The employee manual should spell out that this is prohibited, that the computer belongs to the company and the company is privileged, at any time, to monitor an employee’s computer usage.   An employee does not have, and should not have, a privacy right in his or her computer or email.  

           5.    Sexual Harassment.

            It is always a good idea to put in a provision in a company’s employment manual about sexual harassment.   Sometimes employers think that their employees should use their common sense when it comes to such matters.   However, what these employers may not understand is that some people do not have common sense.   Instead of reporting sexual harassment to an appropriate supervisor, those people simply freeze and are unable to decide what to do other than to suffer through it and wait to be fired when their performance declines.   When asked at their deposition, “Why did you not report this” an employee will often answer with something like:  “I did not know who to speak to.”  

            Enter the well drafted company employment manual.   In the section on sexual harassment, there should be a designated individual, within the confines of the company, to whom it should be reported.   Preferably, it should not be the employee’s direct supervisor because, as we all know, this is the person most often responsible for harassment to begin with.   Thus, a neutral person in the H.R. Department, or the owner of the company, should be included.  If that occurs, then the question to the employee at his or her deposition becomes:  “How come you did not follow the terms of the employment manual which designates to whom you speak concerning a sexual harassment complaint?”

            In sum, the purpose of retaining counsel to draft an appropriate employment manual is not to cause you  to spend unnecessary money on legal fees; rather, it is to save you monies on legal fees in the event that the company becomes the target of a nasty lawsuit.

 

 

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