I talk to a lot of employers. Not only clients, but I also present to groups of them, sit in roundtables with them, and attend the same events they do. They can be a pessimistic group when it comes to complying with employment laws:
- We are increasingly regulated. (Especially if they do business in more than one state, as more and more employment law is set at the local and state level than in the past, so different facilities are commonly subject to different laws.)
- It is harder to manage employees in the age of social media and other technology developments, both because it enables harmful communications, and distracts employees from their job.
- The workforce is different than it used to be, with more varied needs and demands. (Sometimes this includes generational components, but not necessarily.)
These challenges are all very real, in varying degrees for different employees. I don’t dispute any of that. (I’m an employer too.)
But I reject employers’ sometimes defeatist attitude about employment issues. The longer I represent and talk to employers, the more I think that employers have it in their power to minimize employment disputes, all of those challenges notwithstanding. There are three main reasons for this.
1. Good employee-related liability prevention is mostly just good management. As I have written here before, defending many employment claims boils down to showing that a decision was made for job-related reasons rather than some unlawful purpose (such as discrimination). Well…shouldn’t every decision be job-related and mission-focused? Employers who are mission-focused, proactively addressing smaller employee issues before they become something bigger, are the ones with fewer employee legal issues.
Does that mean that anybody with an employee claim is managing badly? Certainly not. Employment problems and, indeed, liability are part of doing business. But there is often a correlation between the best people and business managers and those with fewer employment claims.
2. In many challenging employee situations, for every “move” there is a correct “counter” if you are willing to make it. I often think of employee situations as chess games, and use that analogy constantly with clients, particularly in two tricky situations.
The first of those situations is an employee health situation that limits the employee’s ability to perform the job. As I have written here, this is the employee situation that employers mess up most frequently. It sounds cold and calculating to use the term “chess game” to refer to an employee with a legitimate health issue who is doing her best to do what she can, but I am not referring to that situation.
With the employee with a questionable health issue or questionable desire to perform to the best of her ability, it is a chess game, and experienced employers and employment lawyers have played that game thousands more times than employees or, frankly, their treating physicians. Nothing is certain when there are human decisionmakers like judges and juries, but employers who patiently but persistently play out the chess game will usually win.
Employers who throw up their hands and tolerate malingering, or hastily terminate an employee rather than strategically working through the situation, will usually lose. In the former situation, the employer loses by keeping an unsatisfactory employee situation. In the latter, the employer is likely vulnerable to a charge or lawsuit.
The other best example of the chess game is the harassment complaint. Again, we have played this game many times. For each allegation, there is likely a well-established way to go about exploring the allegation’s truth. For each kind of conduct proven to be true, there is likely a fairly clear measure to take against the harasser to best protect the employer. For each allegation that cannot be proven or disproven, there is likely a best approach to address that too. There may be many moving parts and details, just as in an actual chess game, but employers who are willing to play the game while drawing on a huge experience base as to how to best play it will usually protect themselves well.
3. Many employment problems are preventable at the hiring stage. I cannot count how many times an employer has, midway through an employee situation or claim of some sort, said to me, “We should never have hired him.”
The fact is, many problem employees were preventable had the employer made the always-good investment in fully checking out the applicant and asking the hard questions – of former employers, of the hiring manager, of the applicant himself. But we often don’t, in part because we are probably under pressure to fill a spot. But experience tells us we could have flagged many bad employees before they walked in the door.
There is no question that employment law is more complex than it used to be, but there are timeless basic things that employers can do to keep these issues from overwhelming their business objectives. Employers, you’ve got this!
Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.