Jay Sachetti joined Jeff O’Brien, partner at Husch Blackwell and Dyanne Ross-Hanson, president of Exit Planning Strategies talked about the market for mergers and acquisitions, exit planning opportunities for companies that don’t end up for sale and how companies can maximize their eventual sale price during an early October panel at the first Upsize on Tap event at Summit Brewing Co. in St. Paul.
When the state Legislature passed a law requiring employers to provide paid leave and safe time for employees, Justin Bieganek started hearing differing details from friends, colleagues and peers.
business builder human resources
by Carl Crosby Lehmann and Reagan Oden
Anyone who has seen the show knows the scenario. A group of nervous employees enter and take a seat at the boardroom table. Donald Trump and two of his top executives take turns berating the employees on their poor performance on a recent project.
The employees yell, grovel and try to pin the blame on one of the others. When he has heard enough, The Donald raises his hand, turns to one of the individuals and barks, “You’re fired!”
While Trump’s practices may make for good television, anyone who has managed employees can attest that the hit show “The Apprentice” is far from reality. Recruiting the best employees and responding to performance problems are two of the toughest challenges that employers face.
Following are some tips for effectively managing employees at each stage of the employment relationship and protecting against lawsuits.
First, describe jobs clearly
Be sure that job descriptions clearly identify the essential job roles and responsibilities. This will discourage applicants who are poorly suited for the position from applying. It will also assist the company if it is ever required to prove that a particular duty was required of a position.
Be careful when seeking credit, reference and background checks to investigate job applicants and employees. There are certification, disclosure and authorization requirements to comply with before such information can be legally obtained. Some information is off-limits, such as an applicant’s arrest records or previous workers’ compensation claims.
During the interview process, watch out for illegal interview and application questions. Questions regarding race, age, sex, religion, national origin, sexual preference, and the existence, nature or severity of a disability, as well as other protected categories, can be sources of discrimination lawsuits.
As a rule of thumb, if a question has nothing to do with the job, or is not vital to determining an applicant’s ability to perform its functions, do not ask it.
Managing existing employees can also be fraught with legal pitfalls. Good communication, documentation and training policies, however, can help employers to avoid these traps and create successful employment relationships.
Generally, employers should address small concerns with their employees before they snowball into serious issues. Seek the employees’ input, preferably in writing, regarding their job performance and areas of strengths and weaknesses.
Document all performance issues, statements made by employees and actions that the employer took to help them succeed in their positions. Ensure that the company’s records are thorough, accurate and up-to-date. Remember that notes that you take while issues are ongoing will enhance your credibility if your company ever has to defend against a lawsuit or an administrative charge.
Additionally, make certain that the employee’s failures are not caused by the company’s poor or non-existent training procedures. New-employee training should be informative, instructive and consistent with training given to other employees who perform the same job. Once initial training is completed, follow up with employees to make sure it’s working.
Evaluating performance
Periodic performance reviews are another great tool for use in managing employees. Be sure to use a form that evaluates a wide range of performance criteria, and requires evaluators to choose between a range of positive and negative ratings.
Be candid with your employees about areas for improvement. Attempting to spare their feelings will do more harm than good in the long run. This is not, however, a time to raise significant performance issues for the first time. Ideally, performance issues should be addressed on an ongoing basis.
Use “last chance warnings” as an opportunity to meet with underperforming employees and provide a comprehensive review of their performance. The review should list all issues of significance, explain the employer’s past efforts to work with the employee to improve performance, and include a list of the employer’s expectations.
This “last chance” will help the employer look fair and reasonable, and make it clear that the decision not to correct the performance issues was not a result of lack of warning or patience by the company.
Firing an employee is not as easy as putting on a toupee and snapping, “You’re fired!” Before terminating any position, employers should carefully examine the reasons for the decision, the timing of the action, the potential legal ramifications and any possible alternatives. Going through this process can expose problem issues and potential liabilities that are better assessed before the termination occurs.
Once you’ve made the decision to fire the employee, an appropriate person within the company should meet with the employee to notify him or her of the company’s decision. It’s a good idea to have a witness present at the meeting.
Make the meeting private. Explain that the company has made the decision to terminate the employee’s employment. If the company has been up-front about its past concerns and in giving a final warning, you should not have to spend a lot of time explaining the decision. Instead, the bulk of the meeting should focus on tying up the transitional issues such as the employee’s final paycheck (which should be paid within 24 hours), the return of any company property, the removal of the employee’s belongings, benefits continuation rights and any severance payments available. At all times, treat the employee with dignity and respect.
In many states where the employment relationship is at-will, including Minnesota, few of the steps suggested in this article are required. However, when implemented as part of a conscientious employee-management plan, the steps make it far less likely that legal claims will arise.
These measures also make it much easier for companies to resolve employment disputes before lawsuits are filed. In the event that a company is sued by an employee, it can use the paper trail that it created during the employment relationship to mount a solid, less time-consuming and less expensive defense.
At the end of each “Apprentice” episode, the fired employees have their final chance to say goodbye while being whisked away in a taxi. The dejected contestants usually thank Mr. Trump and talk about how wonderful their experience was.
In reality, managing employees is never this simple, and firing them is less amicable. An employee subjected to such treatment is rarely appreciative and often comes back for future episodes.
[contact] Carl Crosby Lehmann and Reagan Oden are attorneys specializing in employment law at Gray Plant Mooty in Minneapolis: 612.632.3234; ca**********@****aw.com; re*********@****aw.com;www.gpmlaw.com
