Are you a documented employer?
s a management labor
lawyer, I represent lots of employers accused of firing
employees for improper reasons. It never ceases to amaze me how
employees can admit that they failed to do a good job, but
blame the employer itself for the poor work performance. In
other words, the employee set his workplace on fire because the
employer, for reasons related to discriminatory motive, failed
to train him on the proper use of matches.
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My answer is “no,” but then
again, I believe that people need to suffer the consequences of
bad behavior. Otherwise, they will have no incentive to refrain
from that bad behavior in the future.
Even where evil is not involved, we have a
tendency to blame others for our injuries. If we reach down to
dial a cell phone while driving, and we end up hitting a tree,
it should be our fault. But how about the pothole that we hit
while dialing, and that the tree was placed too close to the
road in violation of state road standards, and that there
should have been rumble strips along the road to warn you that
you were over too far?
Sounds like a lawsuit, right?
Getting back to the employment arena,
despite the lofty words in court opinions about “burden
of proof” in discrimination and similar cases, the burden
of proof is always on the employer. The laws themselves suggest
that employers make decisions based not on performance, but on
race, sex, age, and so forth. If I am over 40, of course I am
being fired because I am an older worker, or being held to a
higher standard. I know from years of experience that
25-year-old white men are fired with less scrutiny than
58-year-old black women with irritable bowel syndrome. But
isn’t that discrimination, too? Probably, but as we all
know, that’s not how the system works.
Our legislators are not helping matters
any. Each year, it seems, more laws are passed to
“protect” employees from employers trying to run
their businesses. No one cares about the managers who work
overtime without additional compensation and sweat to make the
business profitable; instead, legislators want to protect the
employee who does not really care about the business as long as
he gets paid, gets paid time off, and does not have to work too
hard. Overworked managers must cultivate marginal employees
with the fear that they will be sued if they have not exhausted
every conceivable avenue to insure the employee’s long,
undistinguished career. Very sad.
For this reason, I encourage every
employer to consider documenting each instance of employee
misconduct.
That documentation should include a
description of what the employer did to prevent the employee
from engaging in such misconduct in the future, such as
counseling or disciplinary action.
In cases where an employee starts to slip
in his job performance, or you no longer need the particular
skills of the employee in question because of a change in the
way you do business, take steps to let the employee know that
his or her job may be in jeopardy. If you wait for years to let
the employee go, you may be opening yourself up for
discrimination charges.
We live in a culture of blame and
reassignment of responsibility. Courts and juries have fallen
victim to that culture. Employers need to understand this when
dealing with employees. Employers need to insure that if an
employee is disciplined or discharged, the record shows that it
was the employee’s fault, not the employer’s.
Frank Kollman is a partner in the law firm
of Kollman & Saucier, PA, in Baltimore, MD. He can be
reached by phone at (410) 727-4300 or fax (410) 727-4391. His
firm’s web site at www.kollmanlaw.com has
articles, sample policies, news and other information on
employee/employer relations.
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