National Clothesline

ith each new employment law, regulation and court decision, control of the workplace gets more and more difficult. Under the Family and Medical Leave Act, employees are encouraged not to work, and employers are required to keep jobs open for employees

whose only illness is that they are sick of their jobs. (Yes, the FMLA has some good features, but the bad features are the stuff of legend.)

Under the Fair Labor Standards Act, employees can be fired for negligently breaking equipment, but they must be paid (overtime in some circumstances) for time spent repairing the equipment they broke in the first place. Employees cannot be fired for filing frivolous charges of discrimination because of anti-retaliation provisions in the law. And the list goes on.

Little wonder that employers are afraid to take action against their employees, even poor employees who reduce the efficiency of the operation.

Last week, I had an employer call to ask if he could fire an employee for suspicion of theft.

A check had been stolen from a desk the employee had access to, and it was cashed at a liquor store where the employee had cashed checks before, and the social security number used was two digits off from the employee’s.

Of course, I gave the client the green light to fire the employee, but we were very careful to choose the right words.

We spend far too much time worrying about poor employees, and far too little time rewarding good employees. Is this a trend that must continue in a pro-employee legal environment, or is there something employers can do about it?

Employers will always have to worry about poor employees, but it is better to deal with poor employees earlier than later.

A poor employee allowed to remain far past the time at which she should have been fired will not only have the opportunity to make the employer miserable, but she will also have the time to compile “evidence” for her wrongful termination lawsuit.

Deal with poor employees immediately. Get rid of them as soon as you have enough objective proof that they are not doing their jobs. Procrastination is an invitation to litigation.

Employers should spend more time cultivating and rewarding good employees. Good employees will eventually leave if not rewarded, and they will be more likely to leave if they are treated just like their poor performing colleagues.

Further, good employees will become poisoned by bad employees.

How many times have you seen a good employee act badly because he resents that other employees break the rules without consequences?

“Why should I come to work on time when no one else does?” Sound familiar?

If you are not going to fire or discipline the poor employee, you should at least recognize the good employee by giving her more money or better benefits.

Unfortunately, giving the good employee more money or benefits will cause resentment among the poor employees. Remember, most employees — including lousy ones — think they are indispensable. (Graveyards are filled with indispensable people.) But that brings me back to the title of this article — who’s in charge?

Employers need to assert control over the workplace and provide an incentive to employees to perform well and a disincentive to perform poorly. Otherwise, all employees will start to perform poorly. Let me give you an example of how human nature works.

We instituted a full-time, business-casual dress policy at the office. It was fine for starters, but eventually people started wearing jeans and grungy clothes. I was expecting to see bathrobes and pajamas before long. A couple of partners started wearing suits regularly again, but employees did not get the hint. So, what was our choice? A rule or give up?

I’ll let you know what we decided because this is an ongoing problem.

Employers need to take charge of their facilities again. It they pay attention to their employees, evaluating them regularly and taking action, both positive and negative, based on employee performance, they should be able to navigate the legal mine field. Otherwise, we are doomed to mediocrity, and the good employee will face extinction. Deal with employee problems immediately, or you may find that at your workplace prison, it is the inmates who run the place.

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.