After 25 years of practicing management-side labor and employment law, now more than ever, I should have a business card that says, “The attorney to call when you need to close the door.”
Given the increasing complexity and broadening of the major federal/state employment laws, my firm’s private-sector clients, including their supervisors, HR professionals, executives and business owners, are becoming increasingly gun-shy and concerned about hiring, overseeing, disciplining and terminating their employees. While understandable to a degree, I believe that much of it stems from confusion about the bedrock of employment law in the United States – at-will employment.
What is at-will employment?
Essentially, it is the right of both the employer and the employee to end the employment relationship with or without notice and with or without a reason (as long as it isn’t an illegal or discriminatory reason). So, could a company terminate an employee if they don’t like the color of their shirt, and could an employee quit because the company forgot to provide gourmet coffee? Yes.
Does it happen? In my experience, no.
Generally speaking, employees leave organizations for serious and significant issues (compensation, benefits and a lack of engagement or communication) and employers do not terminate their employees without a good reason (attendance, attitude and performance). Indeed, employee retention is especially important in a highly competitive labor market like we are experiencing now.
So if at-will employment is the law of the land, why are employers so nervous and constantly closing their doors when they call me for legal advice?
In my experience, it is because they haven’t followed what I refer to as the “Platinum Rules of Employment Law” – document, document and you guessed it, document.
Not just any document, mind you, but detailed and thorough documentation that clearly explains the policy or performance infraction as well as the ramifications for future violations. Without any documentation, the company has to rely on anecdotal evidence and people’s memories, which are rarely reliable, easily contradicted and potentially dismissed as biased or discriminatory. In some ways, having badly written documentation could be worse than having none at all – imagine if a supervisor wrote, “Joe simply cannot do the job anymore due to his diabetes and workers’ compensation injuries.” I have seen one poorly written document like this destroy an otherwise winning case.
Looking at it from the employee’s side, if the person has received only sporadic verbal feedback from his or her supervisor with no formal documentation, and then they subsequently get terminated weeks or months later, they may believe (wrongly) they were discharged for illegal or discriminatory reasons – age, national origin, race, religion, disability, gender, sexual orientation, gender identity, veteran status or any other classification protected by law. These days, defending a frivolous employment lawsuit, arbitration claim or administrative charge, could be just be as costly and time-consuming as dealing with a legitimate matter.
What is the solution?
When I started practicing law 25 years ago, employment lawyers generally advised that organizations did not have to hire an HR professional unless they had 50 or more employees. Today, with the legitimate scrutiny placed on companies of all sizes by the #MeToo movement as well as complex state and federal laws that require as little as four employees to expose a company to costly employment discrimination and harassment litigation, my advice has changed. Depending on the financial status of an organization, the following protective measures may not be feasible all at once, but they should certainly be considered as steps in the right direction:
• Invest in a seasoned human resources professional. If that is not possible, there are several good “fractional” HR firms that will provide remote or two to three days per week HR staff for your organization.
• Consider installing human resources information system software. These systems help document and track employee information, leaves of absence, personnel forms, payroll, benefits administration and performance documentation.
• Make sure your organization has a good and regularly updated employee handbook.
• Speak to an insurance broker about employment practices liability insurance coverage. These insurance policies have come down in cost and protect the organization and its supervisors from all manner of employment-related claims. That said, make sure that you retain the ability to select your own counsel in the event of a claim – you don’t want to spend your deductible educating a new lawyer on the case.
• Lastly, invest in training your supervisors and employees on all applicable employment laws. Supervisors should be trained to keep from getting themselves and the company in trouble, while employees should be trained to prevent frivolous and unnecessary claims.
Seth Briskin is the managing partner and chair of the labor and employment group with Meyers, Roman, Friedberg & Lewis in Woodmere.