Discipline and Termination: Near-Surefire Lawsuits

In yesterday’s CED, we covered “almost smoking gun” mistakes; today, more mistakes your managers make, plus an introduction to a helpful resource that will automate an important recordkeeping duty and take it off your plate once and for all.

Today’s mistakes are again courtesy of HR Hero. (Click here for yesterday’s installment.)

As with evaluations, discipline must be applied consistently among all employees. For example, if employee A and employee B, similarly situated, engage in similar misconduct, both employees should receive the same type of discipline.

Inconsistent discipline is difficult to explain away and can help an employee argue that he or she received harsher discipline because of a protected characteristic such as race or gender.

In addition to maintaining consistent disciplinary practices, you should ensure that you keep a written record of the discipline. Even if the employee merely receives an oral warning, there should be some notation in the personnel file.

Written records make it easier to show a jury or judge how you advised employees that their conduct was unacceptable and gave them another chance. It’s difficult to later argue that you didn’t promote an employee because of his or her tardiness issues when there’s no record that you ever disciplined the employee for being tardy.

The Ultimate Discipline

Finally, the same rules apply to the ultimate discipline — termination. For example, if you suspend employee A for misconduct but fire employee B for engaging in the same misconduct, you will quickly find yourself in a difficult position.

In a lawsuit, employee B can easily create an inference that his dismissal must have been for some impermissible reason rather than for his alleged misconduct. While you can attempt to offer an explanation for the inconsistent treatment, it may fall on deaf ears.

Missing a required posting? It’s a seemingly “small” omission that can cost you big in the event of a surprise audit. Don’t let it happen to you.

Bottom Line

You should look at every employment decision you make from all angles and determine whether it could be misconstrued to support an employee’s claim.

If you find yourself having to provide a complicated explanation for your decision, chances are you need to step back and reevaluate whether it could withstand scrutiny in a lawsuit. Otherwise, you may find yourself in a difficult position when trying to defend your decision.

It’s Not Just the ‘Smoking Guns’ That Can Get You in Hot Water

Sometimes it’s something much more mundane, like accidentally failing to put up a required state or federal poster. 

As you’re undoubtedly aware, you’re required to post a wide assortment of state and federal notices at your workplace. And if you fail to do it – even if you have the best of intentions – you open yourself up to a wide array of costly fines and penalties.

Sometimes the best thing you can do to ensure compliance with your posting obligations is to turn some of them over to someone else. And that’s where we come in.

We’ve done all the running around for you and gathered together in one place:

• Your required state postings
• Your required federal postings
• Your required Wage Order poster
• 20 copies each of five mandatory pamphlets
• PLUS the new mandatory NLRB poster – required starting January 31

Best of all, you only need to think about it once: At the start of every year, we’ll send you a brand-new, fully updated package, so you can be sure you’ve got the most updated information available. You’ll get:

1. California Employee Notice Poster. Includes the following notices:

• Whistleblower Protection
• Notice to Employees: Unemployment Insurance Benefits
• Access to Medical and Exposure Records
• Time Off to Vote
• Payday Notice
• Safety and Health Protection on the Job
• “Notice A”—Pregnancy Disability Leave
• “Notice B”—Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave
• Notice to Employees—Injuries Caused By Work (in both English and Spanish)
• Discrimination and Harassment in Employment Are Prohibited by Law
• Notice to Employees: Reporting Wage Credits for UI, DI, and PFL
• California Minimum Wage

2. Federal Employee Notice Poster. Includes the following notices:

• New NLRB Employee Rights poster
• Employee Rights and Responsibilities Under the Family and Medical Leave Act
• Your Rights Under USERRA
• Employee Rights Under the Fair Labor Standards Act/Federal Minimum Wage
• Equal Employment Opportunity Is The Law
• Notice: Employee Polygraph Protection Act
• Job Safety and Health: It’s the Law!

All of your required state and federal postings, in one place.

3. Wage Order poster. Your choice of:

• Manufacturing Industry
• Personal Services Industry
• Professional, Technical, Clerical, Mechanical & Similar Occupations (offices only)
• Restaurant, Public Housekeeping
• Mercantile Industry, Retail Outlets
• Transportation
• Amusement and Recreation
• Certain Occupations in Construction, Drilling, Logging and Mining

4. Twenty (20) copies each of five mandatory pamphlets:

• The Facts About Sexual Harassment: Must be distributed to all new hires (we recommend distributing a new copy along with any sexual harassment training you perform as well).
• Paid Family Leave: Must be distributed to new hires and employees taking paid family leave.
• Disability Insurance Provisions: Must be distributed to new hires and employees taking covered leave.
• For Your Benefit: California’s Programs for the Unemployed: Must be distributed to any employee who is terminated or laid off, or who goes on a leave of absence.
• Department of Workers’ Compensation “Time of Hire” pamphlet

All for just $99. It’s a deal you can’t beat – order today, risk-free.

Need just the posters, or just the pamphlets? We can do that, too.