Words of wisdom for successful employers

By Jane Pfeifle

After 29 years, I am leaving the practice of law to become a judge in the 7th Judicial Circuit. As I look back on the past few decades, I want to share some observations of what successful employers do. 

Fairness reduces the fare
Being fair pays off. Employers that treat employees fairly generally come out on top. That doesn’t mean you won’t have a charge levied against you or be sued. But fairness shows itself to juries, and you will be rewarded.

What does fairness look like? Fairness means you regularly listen to employees, respond when there’s a problem, and conduct investigations to make sure you have all the facts. You don’t terminate until you’ve given an employee notice of the problem and a chance to improve when there is a performance issue, and you don’t overreact when misconduct occurs. When you do terminate, you do it in a way that preserves the employee’s dignity and offer what posttermination help you can.

Documentation really is dynamite
We’ve won lawsuits because of clear and concise e-mail exchanges, simple entries in calendars, and memos of telephone calls. We’ve paid money when documentation was absent, not contemporaneous, or was changed by the employer after the fact.

Documentation doesn’t have to be made on a special form with lots of signatures, but it does have to clearly identify the issue and contain evidence the employee knew about it. Managers who take a minute to jot down a conversation they had with an employee, make a list of who was in attendance at a training session, or send a quick e-mail summing up specific directives will be much happier later when a question arises.

Fire in haste, pay in waste
If you are thinking about terminating an employee, think about it a bit more. Involve someone else, preferably your lawyer. A short consultation with an employment lawyer will alert you to red flags, help you determine whether you need to take additional steps, and give you some pointers to short-circuit a lawsuit.

Nearly every termination can withstand a few days or a week to review. That gives you time to conduct an investigation and look at all possible issues. Did the employee just file a workers’ compensation claim? Did he report a safety violation? Did he complain about harassment or illegal conduct? If so, you want to avoid the appearance of retaliation. Make sure everybody is on the same page about the reason for the termination. Discrimination lawsuits flourish when there are multiple reasons for a termination and none of them seem quite right.

Give your handbook a big hand
Policies that make clear you are open to—and want to hear—complaints from employees (i.e., open-door policies) pave the way for you to avoid liability when an employee claims he didn’t know he could come forward. Including harassment, whistleblowing, violence, and antiretaliation policies in your open-door policy communicates fairness and openness.

You also can demonstrate that when employees came forward in other instances, you acted. Best of all, an employee who sues you likely complained under one of your policies on another occasion and got results. The jury won’t believe his claim that he didn’t know he could complain, causing them to question other statements he made.

Training and enforcement are good for more than just police officers
Employers that take the time to train their employees send strong messages about the culture of the company and what’s important. Employees see you put time and money into getting the message out. If you provide safety training, employees will understand what’s expected and what will get them in trouble both physically and professionally. If you train on preventing harassment and discrimination, employees will know that they are unacceptable. They will feel free to come forward if they see problematic activity and, better yet, avoid improper conduct altogether. By enforcing your policies, you  communicate what’s expected and that employees who don’t conform don’t belong. More important, state human right’s divisions and the federal Equal Employment Opportunity Commission (EEOC) see that you take the law seriously and enforce your policies.

Jane Wipf Pfeifle was an attorney with Lynn, Jackson, Shultz & Lebrun, P.C. in Rapid City, South Dakota, and editor of South Dakota Employment Law Letter before becoming a judge in the 7th Judicial Circuit.