Workin' 9 to 5 — Hiring, Managing, and Firing Employees

Employees are the heart and soul of any business, but they can also be a continual source of concern for managers and employers. In addition, the employer's legal landscape is constantly changing and it is easy to get lost along the way. Here are some tips to help you navigate your way around potential employment pitfalls.

• Have a Hiring Plan. Be prepared when hiring new employees. Develop interview questions in advance. Train those who conduct interviews about proper and improper questions and conduct. Consider requiring that key employees sign non-competition or confidentially and non-solicitation agreements before beginning work. An employer considering pre-employment drug testing must make sure testing occurs only after a position has been offered. Obtain the potential employee's written consent to testing and release of test results.
• Keep Good Records. Record keeping of employee hours is the responsibility of the employer. Employers should be able to determine the exact hours worked by any employee at any given time, whether that employee is paid on an hourly basis or not. It is a common misconception that salaried employees are uniformly exempt from overtime. This is not the case, and documentation of job duties and hours worked can make the difference between a quick and painless investigation and a time-intensive investigation that ends in large penalty assessments. Documentation is also important in determining proper use of leave policies, employee performance issues, and harassment complaints. Good records can assist the company's attorney in resolving a potential claim before a lawsuit is even filed. A lack of records can make it difficult to win a case, even when the company's position is strong.
• Identify Benefits Issues. Employee health benefit premiums are skyrocketing. Employers should educate their employees on the increasing cost of health insurance and solicit employee input on managing some of these costs. Many employers are taking on the duty of administering their own health plans in an attempt to cut costs. If you are considering such a measure, be aware of some of the additional responsibilities that entails. For example, employers who administer their own health plans are responsible for meeting all the time line and notice requirements associated with the Consolidated Omnibus Reconciliation Act (COBRA) and complying with other requirements.
• Provide Proper Training. Training comes in all forms. Managers should participate in training sessions to learn how to manage, document, and implement employer policies. Employees should be trained in company policies and their implementation, as well as other matters such as safety. Employers who have harassment policies in place, and who train their employees in harassment avoidance and reporting should it occur, will have an affirmative defense to harassment claims when employees fail to take advantage of the policy. Statistics show employers who implement safety training have fewer employees suffering time loss injuries than employers in the same industry who don't train their employees. Time and money spent on training in the short run can save employers legal costs and time loss in the long run.
• Have Policies in Place and Use Them. Employers should update personnel policies as needed, and review them annually to make sure they both comply with the law and that they represent the actual practices of the workplace. A wonderfully written policy offers the company little protection if it isn't applied on a consistent basis.
• Evaluate Your Employees. The process of evaluating employees doesn't have to be elaborate to be effective. Employees can't meet your expectations if you never communicate what those expectations are. At least once a year, sit down with each employee and let him know how he is doing and how he can improve. Document that discussion. Be honest with the employee and yourself. Employees who aren't aware of performance issues are more likely to file claims against the employer if they are terminated. The most frequent mistake employers make is keeping a poor performer on too long.
• If You Must Terminate an Employee, Do it Right. Terminate employees with consideration. Avoid terminating employees around others (the end of the day/shift is usually a good time). Escort the employee to his/her desk or office to remove personal belongings. Collect company property and keys before the employee leaves. Provide the employee with the final paycheck, including any accrued vacation pay or other paid benefits as soon as possible, but no later than 24 hours after the termination; the check should be presented at the termination whenever possible. If you later discover an error in the amount paid, correct it immediately. Do not discuss the details of a termination with other employees.
• Don't Forget the Human Aspect. Research has shown that employees who work in environments where they feel respected and appreciated have fewer sick days and are more productive. My experience is that employees who enjoy their workplace and feel that they are truly valued are unlikely to file lawsuits when they have a grievance.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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