The Innovative Workplace

Seven common EPL questions and answers

Addressing business owners' acute and recurring problems with their workforce

By Don Phin

As president of HR That Works for the past 10 years, I estimate that I have helped answer an average of at least one or two "hotline" calls per day from our members. That means I've answered roughly 3,000 questions in that time. What follows is a Q and A of the most common questions I receive.

1. We have an employee who is sick a lot and, as a result, not performing up to standard and causing attendance issues. What can I do?

The law allows you to make reasonable attendance demands, and you can fire or discipline for offenses. Just don't run into the traps below in the process. There are four things that are typically involved in answering this question: The company's attendance policy, its leave policies, the ADA, and the FMLA. The starting point is to treat people in a way that is consistent with your policies. Any time you deviate from treating similar employees under similar circumstances differently, you run the risk of some form of discrimination claim. (They treated me the same way they treated the green people.)

If you have more than 15 employees (5 or more in California) and the employee has a disabling condition, you will have to consider the accommodation process. Similarly, if you have more than 50 employees, you have to consider FMLA. The protocol here is to follow process. For the most part, courts have stated that employees have to request disability accommodation or Family and Medical Leave; however, they don't have to use any magical words to do so. Most important, make sure they fill out the forms so you're very clear about their condition; whether it meets the definition of a disability or a serious medical condition, look to the prognosis, consider accommodations, and then make sure to monitor their leave.

2. We have an employee who has made an internal complaint of sexual harassment or discrimination. What should we do?

Any time an employee makes a complaint, the law requires a prompt and thorough investigation. My first bit of advice is to consider a professional investigation. Internal folks tend to mess things up. When investigating, I like to think in terms of a tree branch. Find out what facts, documents, or witnesses support any claim and exhaust the information until you meet every dead end of every branch. Give anyone accused a chance to defend himself or herself and don't engage in knee jerk reactions. If, in fact, there was wrongful conduct, then make sure the punishment fits the crime.

3. What can I do with an older employee who is under-performing?

What employers typically want to know is, "If I fire the older employee am I setting myself up for an age discrimination claim?" This is a legitimate concern as age discrimination cases have the highest average verdict of any form of termination case. My first question is always, "When did this person's productivity begin to decline?" Did the company continually encourage this employee toward learning and adopting new technologies? Is there a medical condition that could be causing the employee's declining performance? Bottom line is that they have to be treated just like any other employee who is not performing. Put them on a performance plan, give them a warning notice and, as I encourage all my members to do, use the Employee Correction Form from the program.

4. Can I fire someone?

When people ask me this question, they are really asking, "Will I get sued if I fire them?" What I tell them is that for less than $200, an employee can file a lawsuit pretty much anywhere in this country. The real question is what can you do to dissuade them from filing a potential lawsuit and, at the same time, protect yourself in case they do?

Listed below are points that are included in our Pre-Termination Checklist. The bottom line is not to do anything that would unnecessarily upset the employee (i.e., like their termination being a complete surprise or handled in a rude manner) and make sure you've got documentation, facts, or witnesses to support any reasons for termination. Also, before considering a termination, try to determine if the termination is the fault of the employee or the system. If the latter, termination may not solve the problem and chances are you will replace them with another failure.

Make sure that:

• The employee's personnel file has been reviewed and there is proper documentation supporting the termination decision, including investigation, warnings and witness statements.

• Any company policies and procedures violated by the employee are reasonably related to the operation of the business or the employee' job performance.

• Any discipline and termination actions follow company policies and procedures.

• Other employees have been treated similarly under the same or similar circumstances.

• The employee has been subjected to progressive discipline where warranted.

• If the employee is within a protected class (over 40, female, minority, medical leave, pregnant, religious, military, victim of domestic violence or crime, disabled, etc.), improper motives have been ruled out.

• All employee complaints (safety, health, discrimination, whistle-blowing, pay disparities, working conditions, etc.) have been fully investigated and the recommended termination is not the result of retaliation for communicating any grievance, claim or complaint.

• Before recommending termination, have you considered: restructuring the job; moving the employee's work location; a demotion; a transfer; new supervision; leave without pay; referral to an employee assistance program; voluntary resignation; or other alternatives?

• There are no implied, written or oral contracts with this employee governing the termination decision. (Check the employee handbook.)

• The termination has been independently reviewed and approved by the Human Resources Department or another manager.

• Written notice of termination has been prepared.

• A plan has been adopted for informing the employee of the termination in a brief and dignified manner.

• Termination is set for Tuesday, Wednesday or Thursday morning at the employee's office, in the conference room, or other "safe" place.

5. Can I terminate an employee who refuses a light duty assignment?

Let me begin by answering that I encourage our program members to pay the comp part of any work comp claim and not let the insurance company do so. If the insurance company pays, you will pay those dollars back at a very expensive interest rate financed through your experience modifier (otherwise known as the "MOD"). While you may have the right to cut off the employee's comp part of their claim entirely if they refuse light duty, you can't simply fire them because if you have more than 15 employees the ADA applies, (5 or more in California) and if more than 50 employees, the FMLA applies. This is what attorneys call the "Bermuda Triangle" of employment law. Remember, the ADA is designed to have people perform the essential job duties of the job they're hired for. Modifications to job duties or schedules are typical accommodations. Temporary or light duty positions are not required under the Act. The FMLA simply allows somebody to take up to 12 weeks off, assuming their medical condition is such that they'll be able to return to work after their leave. If they are able to return to work after the leave, then the FMLA is not implicated.

6. What rights do I have to monitor an employee's e-mail or social media use?

There is a battleground between an employer's right to know and an employee's right to privacy. The decision in the case of Hill v. NCAA (1994) sums up the standard, "In order to state a claim for invasion of privacy, the plaintiff must show 1) a legally protected privacy interest, 2) an expectation of privacy and 3) a serious invasion of privacy."

In a recent California Supreme Court case, the court stated that employers can protect themselves and preserve the right to monitor e-mails, cell phone usage, texting, and the like by: a) informing employees about your policy, b) publishing your policy, c) monitoring enforcement of your policy, and d) treating offenders equally. As a bonus, employers must now extend this concern to social media use including Facebook, LinkedIn, MySpace, Twitter, YouTube, and the like. The NLRB is concerned that privacy and disciplinary guidelines may implicate organizing rights as well.

7. I think an employee has been stealing or embezzling from us. What can I do?

Nothing is worse than having a criminal in your midst. Business is reported to lose over $400 billion dollars to internal theft. My first question always will be: "How much is involved?" In many states, anything over $500 is considered a felony, punishable by a year or more in prison. As such, if you believe there is criminal activity, you should report it to the police. If you believe it is minor in nature, then you have the choice of warning or punishing the employee and you also remain entitled to terminate the employee "at-will." The concern is always that an employee will claim you treated him or her differently than other employees because they are green, red, older, etc. Note that if this act involves your client or customer information, you may have extensive reporting requirements.

These are seven of the more common questions I get. Of course, there is a boatload of others. I hope that simply by reading these frequently asked questions and our suggested answers, you will be in a better position to help clients avoid some unnecessary dramas, as well as handle your own firm's employment challenges. n

The author:

Don Phin, Esq. is president of the HR That Works program used as a value-added by agencies nationwide. He can be contacted at don@hrthatworks.com.