Frequently, clients ask, “What can I do so that I don’t get sued?” In the employment context, anything can happen and there is no silver bullet to avoid lawsuits. But there are some basic ideas about employee relations management that can help employers manage their business, their employees and their risk. Here are some general guiding principles you might want to consider:
Summary: Good employee relations management can be summed up in three words, “Timing, Documentation and Consistency.” Keep these in mind, and you will likely either avoid lawsuits or better position yourself in the event one does arise.
Each of these relates to each other and it is hard to separate them for discussion. Nevertheless, here is a brief review of each concept and how it should be applied.
Timing: Timing is [almost] everything. Nearly every fact finder will eventually focus on the timing of an employment decision and connect it to a prior event. Proximity in time is important, as the closer in proximity in time, the more likely a fact finder will associate the later decision with the prior event. That accordingly argues for proactive management and “striking while the iron is hot.” In other words,
-Perform regular reviews
-Respond immediately to a discipline problem
-Coach on performance issues
-Give regular feedback, both positive and negative
-Be sure to document your feedback, coaching and discipline as you give it
-Train managers on how to perform reviews, issue discipline, coach and give feedback.
-Avoid disciplining employees
-Avoid performance defects
-Fail to provide feedback
-Fail to document your assessments and communications
-Avoid conflict and hope “things will get better”
-Fail to train managers on productive and timely communication.
Real life cases give the best examples. I know of one case where a manager decided to discharge an administrative employee for performance reasons (which he had not previously documented). He waited to deliver the news because he did not want to deal with the emotions normally associated with job loss, including the anger, the blame, the fear, and the isolation that comes with it. Finally, he summoned the courage to sit with her and as he did so the employee said she had something to raise with him also during the meeting. He literally offered “Ladies first” and she proceeded to tell him about a disability that she had that needed accommodation. He listened and when she finished he informed her that she was discharged. How’s that for timing?
Obviously, there were a number of things he could have done to prevent the lawsuit that followed. First, he should have noted her performance issues as they arose and not hold back his comments and concerns until he could not take it anymore. Second, he should have documented his coaching on those performance concerns as he gave it so that a record of those issues would have existed. Third, he should have started the final conversation with his own agenda as it was he who called the meeting and as the message he needed to deliver should have controlled the communication.
Documentation: While life does exist in a three dimensional real world, you sometimes might forget that fact when dealing with Courts or Human Rights Commissions. In those venues, they look for documents. Documentation provides the record of events that could eventually be the subject of lawsuits. The process of documentation can also provide a vehicle for clear communication with employees, which may improve management and avoid lawsuits from the beginning. For these reasons, management should get itself in the habit of documenting its dealings with employees.
That means management should,
-Put reviews in writing
-Have employees sign their reviews
-Put discipline in writing
-Have employees sign their discipline notices
-Put coaching in writing
-Have employees sign their coaching comments
-Train managers on how to prepare and keep clear documentation of reviews, discipline and feedback.
-Fail to document reviews
-Fail to document significant discipline
-Delay documentation of reviews, discipline or other feedback because you “don’t have the time”
-Fail to train managers to prepare well timed and consistent documentation.
Obviously, not every communication with employees needs to be in writing. That would not be practical. But an annual review, a second and third warning, or other significant feedback should be in writing and, if possible, signed by the employee. This not only records the communication and preserves history, it also forces clear communication between management and employees. At the end of the day, the goal is not to “make book” on employees but to manage them productively. Well timed documentation assists in that goal.
And, just as important, don’t wait. The fact finder does not know that you intended to draft that write up before the filing of a charge of discrimination or complaint in court. If it does not exist at the time of filing, a belated entry will only be viewed as manipulative at best and fraudulent at worst. [See Timing, above.]
Consistency: The kindergarten support for this concept is typically phrased as “what is sauce for the goose is sauce for the gander.”
How many times have you seen a written request from a Human Rights Commission for the company to provide a list of all employees other than the complainant who “have committed the same offense” with a follow up request for the documentation showing how the company responded to such offenses? The answer is probably every time you have been before any Human Rights Commission across the country. The fact finder in any employment case will examine the company’s history dealing with similar offenses and compare to the case before it to determine if the company acted consistent with past practice. Any deviation from past practice, especially if the complainant is treated more harshly than others who have committed similar offenses, will likely be interpreted as evidence of discrimination or other wrongful conduct by the employer.
That said, “undue consistency is the hobgoblin of little minds” according to Ralph Waldo Emerson, and we should not replace sound judgment with robotic reaction. But “due” attention to consistency will assist sound judgment rather than hinder it. The trick will be to maintain not only a culture of fairness but also an institutional memory of prior actions to help decision-makers going forward.
That means employers might want to,
-Develop a flexible but predictable progressive discipline policy
-Document discipline and other feedback in a readily accessible manner [See Documentation, above]
-Have an “Open Door” policy to ensure exchange of communication between employees and management so that management can receive an “early warning” in the event of an unduly harsh or inconsistent manager
-Have a policy handbook that makes clear how employees can complain about discrimination, harassment and retaliation
-Train managers on the progressive discipline policy, the open door policy, the anti-discrimination policy and generally on providing well timed, good and consistent feedback in a manner that improves productivity of workers [See Timing and Documentation above]
So there it is, “Timing, Documentation and Consistency.” Words to manage by as you manage your business, risk and employees.