Dana Ball has spent 20 years handling employment issues on both sides, employees and employers, which is a huge benefit to her small business clients. Business owners can build goodwill and limit liability risk with: Hiring, Onboarding, Evaluating, and Terminating Employees. Every business is different and generic forms will set you up to fail when a claim is filed against you by an employee. It’s critical that the documents you use with employees (Employee Handbook, policies, and contracts) are drafted specifically to your business, your management style, and the particular circumstances.
Failure to TRAIN your Supervisors and Employees presents a huge liability risk. We have affordable monthly subscription packages to help Utah employers navigate HR obligations. Protect your business and call us to get answers you need so you are not caught blindsided.
Prepare Ahead of Time. Once you have decided to hire a new employee, you should create specific parameters for the open position BEFORE you begin the hiring process! First, prepare a written job description. Then, determine whether the position should be classified as exempt or nonexempt from overtime pay requirements. Finally, you should set the salary range and benefits for the position.
Use the Same Job Application. The key to avoiding a discrimination claim is to use the same employment application and other pre-employment forms for all applicants for a particular position or job category.
Prepare for Interviews
Standardize the interview process to ensure consistency. Review the completed applications in advance of the interviews. Use the applications to assess skills and background and ask for clarification if needed. Ensure that each interviewer fully understands:
- the job duties and responsibilities;
- the essential functions of the job;
- the work an employee in the same position (or the departing employee in that position) actually does on a day-to-day basis;
- the legal risk associated with certain questions and disclosures; and
- company policies relevant to hiring, including its equal employment opportunity and nepotism.
Keep your onboarding process organized and timely. Documentation of recruiting and hiring activities is often used as evidence during litigation in discrimination, negligent hiring, and other employment-related claims. Depending on the contents of the documentation, it can be useful in defending those claims. The employer’s documentation should cover and include:
- A written job description listing essential job requirements.
- All decisions made by the employer regarding applicants, including reasons for:
- selecting applicants to interview;
- rejecting specific applicants; and
- making an offer to an applicant.
Don’t let your workplace BE the next headline. Train your workforce about what is – and isn’t – acceptable in your office. Training does not cost money, it saves money!
DOES A SMALL BUSINESS NEED TO WORRY ABOUT WORKPLACE HARASSMENT TRAINING? YES!
The reality is that it only takes ONE employee to file a complaint. Training is NOT just for big companies! Training your people, especially SUPERVISORS, on their legal responsibilities is vital in today’s climate.
- Tailored to specific business needs and circumstances. Downloading forms online, using the forms offered by a payroll company, or using old and out-dated handbooks is a lawsuit waiting to happen.
- Clear. Use plain language and avoid legal jargon in employee handbooks and policies. Employees cannot follow rules they do not understand.
- Simple. Avoid excess detail. Numerous details create too many issues for argument. Simple policy language allows employers to exercise discretion.
- Reasonable. Use common sense when evaluating whether policies are fair. Fairness is a primary consideration for juries and judges evaluating legal claims brought by disgruntled employees.
- Realistic and relevant. Do not impose unrealistic or irrelevant expectations on employees. Employers should use common sense, and legal advice, to create functional and realistic policy expectations for their workforce.
- Accessible. You must provide employees with copies of written policies. Employers should be able to demonstrate employee receipt and acknowledgment of policies with an authorization signed by the employee. You should review policies with employees at a minimum once a year.
- Professional. Avoid excessively casual or overly friendly language in policies. An unprofessional tone may result in policies being taken less seriously by employees.
- Supported by a business purpose. Connect every policy and procedure to a legitimate business justification.
- Consistent with one another. Review employment policies as a whole to ensure they are consistent with one another.
- Current. Failure to comply with new or amended laws may create additional exposure for employee litigation.
- Consistent with at-will employment status. Disciplinary policies that allow for discipline only under specific circumstances or through progressively rigorous disciplinary steps may inadvertently modify at-will employment status.
- In line with contract requirements. Employee discipline involving employees working under an employment contract must be consistent with their contract terms. Review employment contracts for these employees before imposing discipline.
- Respectful of protected activity. Employers must not maintain policies that impose employee discipline for protected activities.
WHEN AN EMPLOYEE LEAVES
Ensure employees who resign submit resignation notice in writing. These documents can be helpful if an employee later disputes that his or her termination was voluntary. Document the reasons for the termination. If an employee is involuntarily terminated, document the reasons for the termination in an objective tone and ensure that there are sufficient supporting documents. To protect against security breaches, employers should revoke the departing employee’s access to the employer’s systems, including email, voicemail, passwords, and remote log-ins.
Ensure Employee Returns Employer Property and Records. Require the departing employee to return all employer property and records, such as:
- desktop or laptop computers;
- computer peripherals and accessories (external hard drives, speakers, fax; cell phones and other electronic communication devices);
- building key cards and passes;
- electronic key fobs;
- documents and files in any format, including electronic data; and
- corporate credit cards.
Proper documentation and implementation of an employer’s policies and procedures are central to an employer’s success in avoiding or defending against wrongful termination claims.
Assess Whether Termination Is Appropriate. The employer should consider whether:
- Termination is the most appropriate course of action and in the best interests of the employer. For example, the employer may discover that the employee’s supervisor has a history of conflict and is the actual problem.
- The possible adverse publicity from the termination outweighs the consequences of continuing to employ the employee.
- The employer bears any responsibility for failing to appropriately prevent the conditions or address the circumstances that led to the termination proposal.
- The employer has given the employee an opportunity to address any problems that may have led to the termination proposal.
- The termination will adversely impact employee morale or employer credibility within the organization.
- In its treatment of the employee, the employer has properly documented and implement policies and procedures.