ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, July 21, 1996 TAG: 9607220022
SECTION: BUSINESS PAGE: 5 EDITION: METRO
COLUMN: Working It Out
SOURCE: CAMILLE WRIGHT MILLER
Q: It seems, from talking with other business owners, there's an increase in discrimination suits against businesses. I treat my employees fairly, but the other owners claimed they did, too. Let me make it clear that I don't want to ever discriminate against anyone. But, how can I protect myself from someone who wrongly says I did?
A: Todd Leeson, a lawyer with Flippin, Densmore, Morse, Rutherford & Jessee, says that the reality is that "more terminated employees are filing lawsuits, particularly discrimination lawsuits, and they are seeking hundreds of thousands of dollars in damages."
Leeson, who specializes in labor and employment law, notes that "discharged employees who do not receive any prior notice of their problems are more likely to regard their discharges as unfair or arbitrary and are more likely to file lawsuits against your company."
Leeson's advice to head off lawsuits or enhance your position should you ever have to go to court is to "be proactive." This includes actively managing your staff, always working under the rule of fairness and performing on-going written performance evaluations.
Leeson notes that "employees do not become unacceptable overnight." Letting your grievances build until you terminate an employee isn't in the best interest of either party.
"Generally, an employer's response to substandard performance should be progressive, and the company should advise employees of their deficiencies." When an employee isn't performing he or she should be told immediately of the problem and appropriate corrective action taken. And documentation should be added to the personnel file.
Leeson says that "notice, consistency and progressive discipline are often components of fairness." An additional component is "consistent and even-handed treatment of every employee." Very simply, anyone violating a specific company policy should expect the same level of discipline.
Discipline of any sort is effective only if it is swift, certain and severe (relative to the infraction). It must also be universally dispensed to anyone who deviates if an employer is to mount an effective defense against unwarranted lawsuits.
Leeson recognizes that "it's hard to find the time for performance evaluations particularly for small companies without human resource officers." However, honest and meaningful performance evaluations can be effective in establishing that performance, not discrimination, is the issue.
Leeson suggests that "companies invest time up front to make sure the performance evaluations are done right." Not only should the owner know how to evaluate, every supervisor with evaluation and disciplinary authority should be trained to evaluate in order to increase effectiveness and minimize risk.
The first step in an effective evaluation is to "make sure the employee knows his duties and your expectations." The performance evaluation should then tell the employee how he or she is doing. If there are several categories related to the job, they should be assessed on each area."
Leeson stresses the need to give "clear feedback. Be honest and don't sugarcoat." Leeson recognizes our desire to be compassionate and rate some employees higher than their actual performance. "It's hard to tell them they need improvement, but if it goes to litigation having written records will help."
It's also possible that some employees won't have to be terminated if they receive honest feedback in evaluations. Instead, they would know areas to be improved and could make necessary changes in their performance.
Evaluations should be "as objective as possible. For example, if an employee is to stack 10 boxes and stacks only five, note that. Don't express opinions and say the employee was lazy."
While most terminated employees "will be upset," it's generally those who "think it's unfair who may consider talking with a lawyer." You can't "prevent employees from filing claims against your company. However, by taking appropriate preventive steps before making adverse personnel decisions, you should be able to successfully defend such claims."
He cautions that "your company's documents and statements made by your company's managers may someday be broadcast to a jury. Always keep that point in mind."
Talk with your lawyer before you discipline an employee. You can reduce your risk - but only by becoming familiar with areas you may be inadvertently violating. By following the advice of experts you help ensure that any such suit against you is without merit.
As Leeson suggests, "an ounce of prevention is worth" more than a pound of cure; it's worth a "ton."
LENGTH: Medium: 88 linesby CNB