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They say a little knowledge is a dangerous thing, and that goes for many managers who think they know all about employment law. Unfortunately, there are a lot of actions that may be technically legal, but unquestionably stupid. |
Here are some of management’s most notorious missteps:
1. Firing At-Will Employees for No Reason
“They’re at will, so that means I can fire them for any reason or for no reason, right?” It’s true that you can fire for any reason (“I don’t like green socks”) or for no reason (“I just feel like it”). But just because you can, doesn’t mean you should.
What happens: That employee who got fired for no reason is going to sue you, claiming that he or she was fired because of [insert race, gender, religion, age, or other protected basis here]. Your manager, on the witness stand, is going to earnestly say, “No, I fired him for no reason.”
And the jury’s going to think, I doubt it. And they’re left with only one conclusion: discrimination.
2. Trying to Be Nice to People You Fire
“He’s such a good guy, I didn’t have the heart to tell him his performance wasn’t acceptable, so I told him his position was eliminated.” A well-intentioned action, perhaps, and not illegal, but certainly foolish.
What happens: Your manager is going to fill that position with someone else. Then the fired employee is going to sue you, claiming that since the position wasn’t eliminated, he or she must have been fired because of [insert race, gender, religion, age, etc. here].
Your manager, on the witness stand, is going to say, “Well, that’s what I told him, but that wasn’t the real reason. The real reason was poor performance.”
The jury’s going to think, “Well, there’s one thing we know for sure — the manager is a liar.”
The best defense to your managers winging it — with catastrophic results — is the use of consistent, strongly drafted policies. And we’ve got over 350 essential HR policies … for under $1 each.
3. Taking Action Without Documentation
“The law doesn’t say I need documentation, does it?” No, it certainly doesn’t. But, as with the manager in the previous case, you’re going to want it.
What happens: That fired employee is going to sue you, claiming that his or her performance was fine, so he or she must have been fired because of (pick one: race, gender, religion, age). How do employees in this situation know their performance was fine?
- They received “satisfactory” ratings.
- They were awarded raises and bonuses.
- No one ever mentioned to them that there was an issue of poor performance.
If your manager doesn’t have a string of performance appraisals and other documentation that show the poor performance, it’s going to be hard to refute the charge of discrimination.
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Ideally, your documentation will show three things:
- The employee knew of the rule that was broken or the performance standard that was not met.
- The employee was aware that his or her performance was below standard.
- The employee was given the means and the opportunity to improve.
Finally, don’t trust the manager to have the documents. It’s important to actually search out the physical documents. So many times, you’re told that there’s documentation, and then when push comes to shove, the documentation can’t be found.
In tomorrow’s CED, we’ll look at more legal but stupid actions, and explain a simple way to keep your smart managers from doing dumb things.
Download your free copy of 10 Tips for Effective, Legal Performance Appraisals today!