Avoiding employment lawsuits 'good business practice'

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Managing Editor

As unemployment tops 12 percent, employers, employees and those looking for work all are sharpening their workplace skills.

Employers are doing more work with fewer employees and trying to keep their best employees on staff; employees are working harder to keep their jobs; and those looking for work are competing heavily for spots on the organizational chart.

It means more attention by all of them to workplace laws and how to manage, and be managed, effectively and legally.

“This is all good business practice,” said McGuire Woods partner Adrienne Conrad, a labor lawyer who represents employers.

Nationwide, the U.S. Equal Employment Opportunity Commission reports near-record discrimination charges and attributes the numbers to several factors, including economic conditions.

The commission reported 93,277 workplace discrimination charges were filed with it during fiscal 2009, the second highest ever, behind fiscal 2008.

For 2009, the commission said it obtained more than $376 million for the victims.

The most frequently alleged types of discrimination were race, retaliation and sex-based discrimination, as well as disability, religion and national origin and age-based discrimination.

Conrad spoke Monday to more than 60 members of Women Business Owners of North Florida. Her basic message was that all job positions should have accurate, current job descriptions and that performance expectations and reviews should be tied to those descriptions.

“Document, document, document,” she said. The information helps both the employer and the employee work together with the same goals and expectations.

There were questions from the floor about the appropriateness of background checks, employment questions that might trigger age-discrimination complaints and how to handle employees who speak negatively about the boss and the office to clients and vendors.

“Can he be fired?” asked a member who said she knew of an employee who, angered about being counseled about performance, was trashing the company’s reputation in the public.

Maybe, Conrad said, if the employer has a policy that addresses it.

“Many companies have policies that any employee who publicly disparages the company or its management can be terminated immediately,” she said.

That raised another point: Employers should have written policies and procedures that are signed by employees.

“Have an acknowledgment form,” she said. “Signed.”

She also advised employers that it is not helpful to simply be “nice” to a marginal employee who needs a performance action plan for improvement. Constructive criticism is better than pretending all is OK.

Conrad represents employers when they are sued for employment practices. She knows of an employer who hired a woman who was clearly trouble within the first three months. Instead of firing her, she was transferred around the company. She eventually was let go and she sued.

“If you have a problem employee, it’s best to nip it in the bud right away,” Conrad said.

Conrad said that waiting to fire a problem worker also gives that employee more time to document alleged discrimination or mistreatment.

“Plus, it has an effect on employee morale,” she said. The hard-working, nonproblem workers want to know “why are they not firing her?”

When the time comes to terminate an employee, Conrad said it’s wise to have a script before going into the termination meeting. “You want to be concise,” she said.

While federal and state employment laws might not cover small businesses, Conrad said that businesses adding employees need to be aware of their workforce sizes in case they reach a legal threshold.

And, if sued, the employer faces legal fees to defend the lawsuit.

As Conrad found with clients, “it wasn’t something that was in their budget.”

Avoiding problems on the job

Effectively managing a workforce

Job Descriptions

• Be accurate and current
• Tie performance appraisal to the description
• Establish consistent expectations

Goal Setting

• To improve employee performance
• To document efforts to address substandard performance
• To prevent surprises
• To ensure fairness

Action Plans

• Areas of needed improvements
• Expected behaviors
• Interventions and assistance
• Consequences

Conflict Management

• Being “nice” is not helpful to a marginal employee
• Constructive confrontation is better than pretending all is fine
• Affirm, confront, affirm

Common Mistakes

• Failure to document consistently
• Giving good evaluations to problem employees
• Making exceptions for one employee
• Not following up
• Not following company policies and procedures
• Being vague about consequences.

“Clean” Termination

• Honest but critical evaluation
• Clear statement of expectations
• List of support resources
• Reasonable timetable for improvement
• Follow-up as agreed
• Progressive consequences.

Source: Adrienne Conrad, McGuire Woods

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