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7 things I learned while practicing labor and employment law

by Tom Daniel

I have had the privilege of practicing labor and employment law in Alaska for 31 years. Over that time, the law has become more complex, and more laws than ever before now apply to the employment relationship. Here are some nonlegal principles I have learned that might help you avoid legal disputes in the first place.

No. 1: Always let an employee tell his story
You might be surprised at what you learn. I often receive calls from clients asking whether it’s OK to fire an employee, only to learn that the supervisor’s or HR manager’s understanding of the facts is based on secondhand reports. Even worse, no one has asked the employee for his side of the story. Almost always, my advice is to interview the affected employee to find out what he has to say. In fact, an employer has nothing to lose by conducting an interview. The affected employee may confirm that he committed the offense of which he is accused. In that case, the termination decision is easy. Or the employee may offer an explanation that changes your view of whether there is a legitimate basis for discharge. In either case, the decision maker will be better informed, and the ultimate decision likely will be based on a clear understanding of the facts, not hearsay.

I am reminded of a story one of my partners used to tell. A client called and wanted to know whether it was OK to fire an employee who had cursed at and pushed his supervisor. My partner recommended interviewing the employee to hear his side of the story. When the employee was interviewed, he explained that he was working in a building when he noticed a gas leak. At about the same time, his supervisor walked in the door with a lit cigarette in his mouth. The employee admitted that he probably did curse and that, yes, he did in fact quickly push his supervisor out the door. After hearing that explanation, the employer decided that firing the employee might not be such a good idea after all.

No. 2: Think about how it will look to a jury
When clients ask me whether it’s lawful to take a certain personnel action, I attempt to answer by not only applying legal principles but also thinking about how the action might look to a jury. Sometimes the law is clear-cut, so it doesn’t matter how the action might look to a jury. Wage and hour law is often that way. But sometimes, the answer requires a mix of facts and law. In the above example, the law is quite clear that an employee who curses at and assaults his supervisor can be discharged. But the facts of the situation showed mitigating circumstances—circumstances that showed a jury would very likely side with the employee.

No. 3: Tell employees why they are being fired
I have often been asked whether it is OK to just tell an employee that she is employed at will and that the company has made the decision to terminate the employment relationship. Often, that seems to happen when the grounds for discharge are not clear but the employer really wants the employee gone.

In my view, this approach is usually a bad idea. For one thing, the discharged employee will likely think the worst—that the real reason she is being fired is because of a protected characteristic (e.g., race, age, or sex) or in retaliation for a complaint about something. If a discharged employee thinks the real reason for her firing is unlawful, she may be more likely to talk to a lawyer or file a complaint with the Alaska Human Rights Commission or the Equal Employment Opportunity Commission (EEOC). If that happens, the employer will have to explain the reason for the discharge. And if it can’t do that, the decision will look discriminatory.

Second, if the employer cannot explain why the employee is being fired, then perhaps there isn’t a good reason. Finally, in my experience, employees are more likely to accept a discharge decision if the employer is honest with them and explains its reason. Put yourself in the employee’s shoes: If you were fired, wouldn’t you want to know the reason for the decision, even if you thought the decision was wrong?

No. 4: Treat people with respect, even if you are firing them
This tip goes with the previous one. Part of treating an employee with respect is explaining the reason he is being fired. More than that, it means informing the employee in private and allowing him to depart gracefully, except in extraordinary cases. That means allowing a discharged employee to collect his personal belongings, letting him depart without having to face his coworkers, and, in general, allowing him to “save face.” The days of yelling, “You’re fired” at an employee in front of coworkers are over.

No. 5: Be honest—especially in performance reviews
I have often had the experience of discussing a newly filed employee lawsuit only to have my client tell me that she can’t believe the former employee had the temerity to file a lawsuit because he was one of the worst employees the company ever had. The client goes on to list the numerous examples of the former employee’s incompetence and poor performance. But after I obtain a copy of the former employee’s personnel file, I am surprised to see performance reviews rating him as average or above average and a lack of warning letters, plans for improvement, or other indications of poor performance. Then, I wonder why there is no record of the employee being so bad.

Having been a supervisor myself, I appreciate how difficult it can be to have a “hard conversation” with an employee who is not living up to expectations. But that is one of the qualities of a good supervisor. In fact, you are doing the employee a favor by pointing out poor performance and expecting him to improve. Sometimes an employee will improve, and sometimes he won’t. But you do your employees and your company a disservice when you are not honest with employees about their performance.

No. 6: The best performance reviews are done quickly
Don’t wait for the deadline for your company’s annual performance reviews to tell employees how they are doing. The best performance reviews occur as you observe employees doing their jobs. That means immediately telling them when they have done a good job and immediately counseling them when they haven’t. We all learn best when someone with more experience shows us the way.

No. 7: Jerks create personnel and legal problems
It’s a fact. Employees, supervisors, and managers who are jerks are no fun to work with. More important, they create issues that eventually turn into serous personnel or legal problems. They cause good employees to leave, and they create constant disruption in the workplace. Don’t tolerate jerks.

For example, a supervisor who constantly demeans and humiliates employees—even if he treats all employees the same way—is more likely to be accused of discrimination, retaliation, or wrongful discharge. Even if the supervisor is an “equal opportunity harasser,” your company must defend the lawsuits he causes, which will be expensive and time-consuming. Believe me, trying to persuade a jury that a jerk wasn’t discriminating because he treated everybody like dirt is not a very persuasive argument.

Bottom line: Follow the Golden Rule
These principles can be boiled down to one you learned as a child: Do unto others as you would have them do unto you. Whether it’s giving an employee the opportunity to tell his side of the story, telling a discharged employee why he was fired, being honest in performance reviews, or not tolerating jerks, these concepts are examples of treating employees the same way you would like to be treated by your supervisor. If you do that, you may still have legal problems, and you may still need to call your lawyer. But I can almost guarantee you will have fewer legal problems. Many of the problems I have seen over the years could have been avoided had the employer simply followed the Golden Rule.

Tom Daniel is an attorney with Perkins Coie LLP, practicing in the firm’s Anchorage, Alaska, office. He may be contacted at tdaniel@perkinscoie.com.