10 Ways to Stay Out of Court: Rule 5 – Manage Fairly & Wisely

Date: November 12, 2018

We speak with small business owners all the time about their legal troubles. But one area where it seems employers especially struggle is in dealing with management issues—whether its employees requesting continued leaves of absence, uncomfortable situations in the workplace, or making a call on when to terminate an underperforming employee.

This is understandable because federal and state law can be especially confusing. Often there is no clear-cut answer on how to proceed, and the most prudent course may be to seek professional guidance. But these issues are all the more difficult for small businesses because they are operating without the benefit of a human resource specialist or in-house attorneys.

Here are some points to keep in mind when managing your employees:

  • Prohibit discrimination and harassment. You should make sure all employees understand that discrimination on the basis of sex, race, national origin, religion, disability and other such attributes are strictly prohibited.
  • Be Aware of Your Surroundings. Understand that employers are liable not only for the conduct of managers and supervisors, but also for the conduct of any employee if they knew or reasonably should have known about their behavior. For that matter, you should be aware of what goes on outside of your workplace because outside conduct may, in some cases, contribute to a “hostile work environment.”
  • Train Supervisors. While all employees should know and understand your policies, it is an especially good practice to train supervisors on harassment issues. Harassment training is mandatory in California.
  • Clearly spell Out Company Policies. Employers may want to consider spelling out their workplace policies in an employee manual. And if you have established policies, you should enforce them consistently. NFIB Small Business Legal Center provides a useful model employee handbook here.
  • Tackle Poor Performance Early. If an employee is having performance issues, it is important to address those issues in real time. Don’t wait until annual reviews to voice concerns about performance. And remember that if you end up terminating the employee, you will want a paper trail documenting their performance issues—and any corrective action you have taken—because you want to avoid any inference that you are firing an employee for an improper reason.
  • Avoid Retaliation. If an employee has filed a complaint with a state or federal agency (or if they have alleged harassment in the workplace), you risk a lawsuit if you should treat that employee differently going forward. For example, changing or reducing the employee’s hours or pay may give rise to a retaliation claim.

For more guidance on how to stay out of court, check-out the following:

*While the information provided here is intended to be accurate, it is not legal advice. Employers are advised to seek counsel from a trusted employment law attorney.

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