Employment practices liability continues to be a risk management headache. As the economy contracts, employees who do not find new employment promptly may be more likely to file employment actions.
The first step in managing employment exposures is consistency. As much as possible, treat employees the same according to your policies. Inconsistency can look like discrimination, according to Steven Leach, an employment attorney with Jones, Skelton, & Hochuli, PLC, in Phoenix, Arizona.
The second key, he believes, is good documentation. Employers frequently call him to say they have terminated someone who is filing a claim. “But he was a terrible employee,” they will say. “Great, just show me the documentation,” he responds. Often, he says, there is a long pause, and he knows that the company did not document performance shortfalls. Even a simple an email can help, Leach says. After counseling an employee, send him or her email that outlines the conversation, which can later demonstrate that employment issues were evident and addressed.
Effective personnel policies are critical, Leach contends. Employee handbooks demonstrate a good faith effort to comply with personnel laws, but, “Smaller is better,” Leach says. Employee manuals can also become a rope that hangs you, Leach warns. “Avoid language that is too definitive,” Leach counsels, for example, “Evaluations will be performed by July 1 of each year.” Instead, use general language like, “We will attempt to perform annual evaluations.” Do not bind yourself to actions with your language, in effect creating an employment contract. Phrases like “we will endeavor” or “at the discretion of” can help you sidestep problems.
Keep policies up-to-date, Leach recommends. When the job description does not match the job functions, defending a termination based on an ability to perform the job requirements can be difficult. “Outdated materials can kill you,” Leach says. When your policies no longer agree with your practices or the law, “Your defense becomes, ‘We’re lazy and ignorant.’ Spend time every year going over job descriptions and policies.”
With new hires or when revising policies, give employees time to review the policies and sign an acknowledgment of receipt and understanding. “Avoid the word “agree,” Leach recommends. “‘Agree’ sounds like a contract.”
All companies should implement a computer-use policy. Remind employees, even at log in, that the employee has no expectation of privacy. Inform employees that the organization retains the right to monitor computer use at any time and without notice. Avoid personal use prohibitions, however, due to the prevalence of on-line banking and general internet use in the workplace. That doesn’t mean you can’t discipline employees who use the internet for personal use too frequently, but a “no personal use” policy is too prohibitive, Leach believes.
A harassment policy is essential to personnel risk management. Here are the elements Leach recommends in a policy:
- A zero-tolerance statement against harassment. Warn that harassment will lead to sanctions up to and including termination.
- A clear explanation of the prohibited conduct, including harassment based on race, color, origin, religion, age, disability or sexual orientation.
- A complaint process.
- A warning that frivolous claims result in disciplinary action.
- A statement of anti-retaliation.
- Statement of confidentiality, when possible, although not guaranteed.
A prompt response to inappropriate behavior is essential and shows a good faith effort by the company to enforce the existing policy. Policies, however, are only as good as the enforcement behind them. If you don’t follow your own policies, you may be proving your own claim, Leach warns.
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