Daily Archives: June 26, 2008

Ethics in Employment

Ethics

            Some employers call my law office to find out what they can get away with legally: what loopholes in the law can they exploit or how can they get rid of an employee without taking the usual steps of giving the employee an opportunity to cure their performance problems.

            I am much more impressed by the employers I advise regularly, almost all of whom are just trying to do the right thing by their employees while earning a decent living for themselves.

            If I didn’t have an ethical requirement to keep my clients’ identities confidential, I would love to brag on the local company that doesn’t fire a person for the first failed drug test, but instead holds their job open while the employee completes rehab and then offers the worker one more chance.

            Or I could tell you about several clients of mine who voluntarily supplement the workers’ compensation wages benefit when an employee is hurt on the job so that the employee gets 100% of his wages while recovering rather than just the 70% paid by the workers’ compensation insurance.

Continue reading Ethics in Employment →

Termination Checklist

Termination

 “Severance”, “job release”, “termination”: no matter what you call it, firing an employee is one of the hardest tasks you face in running your business.

It’s also one of the riskiest, since at least half of the discrimination claims filed with the Equal Employment Opportunity Commission involve discharges, rather than other adverse employment actions such as demotions or failure to hire.

There are many things to consider before you fire an employee. For example, what you call the termination is important. Juries often side with the employee in discrimination suits when the employer just doesn’t say what he means at the time of the termination. It makes the jury distrust a employer who uses corporate double talk such as “job separation” to describe a simple firing.

Newsweek reported in August 1996 that corporations had actually used the following euphemisms during the downsizing craze of the mid-90s: “release of resources” (Bank of America); “career change opportunity” (Clifford of Vermont); “rightsizing the bank” (Harris Bank of Chicago); “strengthening global effectiveness” (Proctor & Gamble); “normal payroll adjustment” (Wal-Mart). Continue reading Termination Checklist →

Stray Remarks in Age Discrimination Cases

Discrimination

            I have often said in seminars that I have taught that the scariest kinds of employment cases I defend are age discrimination claims. Give me a good old-fashioned sexual harassment claim any day compared to a long-term employee over 40 who was fired so the company could “go in a new direction”.

            Age discrimination cases are difficult to defend because jurors, like all of us, want to believe that employers will be loyal to them when they get older. We all hate the thought of our parents or ourselves being fired simply because the employer no longer finds us useful as we inevitably age.

            This makes age discrimination cases very expensive. The median age discrimination verdict in federal courts from 1994-2000 was $269,350, higher than for any other type of federally prohibited discrimination. That only takes into account the damages awarded to the plaintiff, not the other $75,000+ that the employer spent on lawyer fees to defend the case.

            Employers know these facts instinctively, so they often come up with all kinds of ways to soften the blow when an older worker has to be fired.

            Euphemisms seem to breed like mice in age discrimination contexts. I’ve heard employers call their older employees “dinosaurs”, suggest that their idea of technology never progressed beyond a Selectric typewriter, and suggest to an employee that it is time to retire and go fishing, perhaps thinking that the older worker would suddenly act as if a light went on in his head and happily go out the office door whistling the theme from the Andy Griffith show.

            In real life these types of euphemisms only enrage the employee even more than the firing and lead to a nasty lawsuit. Continue reading Stray Remarks in Age Discrimination Cases →

Recordkeeping Critical to Avoiding Legal Liability

Documentation

                If you get sued by one of your employees, the first thing your defense lawyer will want to see is the employee’s personnel file. Many employers don’t know what to keep in their personnel files or don’t retain the records long enough.

               The most important records if you get sued will be those concerning your employee’s performance. Formal evaluations are helpful, but regular notes of day-to-day problems with your employees are even better.

               You need to get into the habit of writing a note to the file every time your employees perform well or poorly. The notes do not have to be pretty; they can even be on scratch paper. Just be sure to date each note.

               Other than performance notes, many other records should be readily available on each employee. The simple checklist at the end of this article should help you decide what employment records to create, file and retain so that you can defend yourself adequately against any employee claims. Continue reading Recordkeeping Critical to Avoiding Legal Liability →