By: Kenney & Sams, P.C.

There’s nothing more frustrating for a manager or business owner than when an employee repeatedly fails to meet expectations.  Know what else feels frustrating?  Being disciplined by a manager for job expectations that were never properly communicated.

A fundamental principle of employment law is that an employer’s unfair, unkind treatment alone is not illegal.  Yet, nine times out of ten, employees make that first call to an attorney because something happened at work that feels fundamentally unfair.  The employee might not even be clear on exactly why, or how, he or she has been wronged.  They just know that what happened to them feels wrong, and they’re upset.

From the employer’s perspective, owners and managers have a business to run.  They need employees to do their job and stay motivated.  They want productivity.  But, just like children are a reflection of their parents, a company’s workforce is a reflection of its leadership.  Employee productivity and success are controlled by how the metaphorical workplace “household” is run.  When thinking about risk management, employers should always consider the company’s “household rules.” What are they, and is management enforcing them fairly and in compliance with the law?

When managers are left without the proper tools and training to handle challenging employee situations, employees become disgruntled, and lawsuits happen.   Here are five easy ways to avoid that:

  1. Have a good, solid employee handbook.

Everybody likes an even playing field.  But, how are employees supposed to follow company rules if they don’t know what the rules are?

Employers want their business to succeed and employees want to feel successful.  Focusing on this commonality, set your employees up for success.  Give them a handbook that tells them exactly what the company’s expectations are for the workplace.  Handbooks can cover topics like dress code, sick time and medical leave, discrimination, and reporting workplace concerns.

A good handbook provides guidance to everyone.  It communicates expectations clearly, and inspires employee confidence in their ability to succeed.  It guides managers on complying with the law from the outset, before problems spiral out of control.  It ensures fairness.  These things, together, boost employer-employee relations and create a happier workplace overall.

  1. Communicate performance issues clearly and discipline fairly.

While an employer is free to terminate an at-will employee for any reason (or for no reason at all), termination for performance-based reasons should never be a surprise to a poor-performing employee.  Smart companies clearly communicate when employees have failed to meet expectations, and give them the chance to improve.  Using progressive discipline when possible and appropriate – such as a verbal warning, written warning, suspension, and/or termination – is a good business practice.  If your company is without a mechanism for progressive discipline, this multi-step warning process (or some variation thereof) is a good starting place.

Of course, certain situations will inevitably require termination of employment on-the-spot.  It is important that companies choosing to administer progressive discipline do so as a positive practice for enhancing employee satisfaction, but not as a company promise.  A progressive discipline policy in an employee handbook, for example, could create implied employee contractual rights that an employer never intended to confer.  Employers should reiterate that employees are at-will, and should avoid promising any “one size fits all” method of discipline.  This ensures that employees are not mislead into believing entitlement to something that the company can’t deliver.

In addition to verbal and written warnings, performance reviews and performance improvement plans are useful tools for clearly communicating employee performance issues.  Also, a well-maintained personnel file allows employers to track what warnings have been given and issues have been addressed with an employee.  Massachusetts law requires employers to notify employees whenever negative documentation is placed in their personnel file, and to provide employees with a copy of their personnel file within five days of a written request.

Rules should be enforced fairly and consistently.  Before taking action against an employee, consider what past warnings the employee has been given, if any.  Also consider if other employees have been disciplined for similar conduct, and if so, the measure of discipline that others were given.  Ensure that the discipline is warranted, and, most importantly, that the reasons are lawful.

  1. Initiate Dialogue.

Sometimes, managers think the best way not to discriminate against an employee is to disregard a disability altogether.  Contrary to this misconception, Massachusetts law requires employers to engage in interactive dialogue with employees that they know are disabled and potentially in need of workplace accommodations.  Smart companies, once on notice of an employee struggling at work with a medical issue or disability, talk to employees to ensure that they are properly informed of their medical leave rights and/or given necessary accommodations to perform the essential functions of their job.

Similarly, after a complaint has been lodged, managers may think the safest course of action is to stop interacting with a complaining employee entirely.  Isolating an employee because they complained about unlawful treatment (like discrimination or sexual harassment), however, can be a form of unlawful retaliation.  Instead, smart companies proactively communicate with employees after a complaint is lodged to ensure that the situation is properly investigated and rectified, and that managers are properly counseled on how to act.

  1. Have an HR person that employees can talk to.

Far too often, especially within smaller companies, the only person for employees to approach with problems is the boss.  When employees have no one to talk to about workplace issues, and see no hope in sight for rectifying issues they continually experience, they lose motivation.  It’s not difficult to see how this quickly breeds an atmosphere of hostility and discontentment.  A hostile work environment kills workplace morale, and sets the stage for a lawsuit.

A small investment into an office HR person goes a long way in employment risk management — not just in managing morale, but also in ensuring that personnel issues are identified and addressed early on.  Smart companies don’t allow problems to fester.  Instead, they give employees a process and an approachable point of contact for voicing concerns.

  1. Have an attorney that managers can consult.

Employment law can sometimes feel tricky to non-lawyers.  Voluntarily reducing a pregnant employee’s duties is a nice thing for a company to do, right?  Not necessarily. While one pregnant employee might welcome the accommodation or legally require it, another pregnant employee might view this as an unwanted stripping of duties and an adverse employment action.   Managers often find themselves in hot water not because they are bad people, but because they made uninformed decisions that resulted in an employee being treated unlawfully.

Smart companies have an attorney or HR person whom managers can consult regarding employee issues before determining a course of action.  Guidance on compliance with applicable laws from the outset of a dispute is instrumental to decreasing a company’s potential future liability.  Employers should know from the start how to respond to requests for accommodation or FMLA leave (if your company has over 50 employees), how much maternity leave employees are entitled to, how to investigate discrimination and retaliation complaints, and how to deal with wage and hour issues.

In sum, consult before you act.  As the old saying goes: “An ounce of prevention is worth a pound of cure.”