As 2016 draws to a close, each of us will likely take time to reflect on what we hope to achieve in the coming year. In my case, this reflection usually involves resolving to be happier and more productive and reduce my carb intake. I would be remiss as an HR lawyer, however, if I did not bid 2016 adieu by leaving you with a few nuggets of wisdom to help you navigate your way through the new year. So, ladies and gentlemen, I give you my Top 5 HR resolutions for not getting sued in 2017.
Resolution #5: Train your employees and managers
It's great to have an up-to-date employee handbook that puts your workforce on notice of your company's policies and procedures, but training your management and non-management personnel is also essential. Managers must be trained on effective leadership and communication techniques, interviewing, reference-checking, and discipline, as well as equal employment opportunity, anti-harassment, and anti-retaliation policies. In addition, managers must be trained on how to address employee absences and inquiries under the Family and Medical Leave Act, Americans with Disabilities Act, and workers' compensation laws. Last but not least, managers should be trained on the importance of contacting and involving HR when making decisions that could legally bind the organization.
Like managers, employees must also be trained on the company's policies and procedures, including how to make complaints of discrimination, harassment, and retaliation. Simply having your employees acknowledge receipt of the policies in the handbook is not enough.
Resolution #4: Complete accurate performance evaluations
Sometimes, an inaccurate performance evaluation is worse than not evaluating an employee's performance at all. Employees want and need feedback on their job performance, and the evaluation process should be timely and accurate. Evaluations should be used to identify deficiencies in employee performance or conduct, and to set goals and expectations for the future. Unfortunately, in an effort to be nice or avoid conflict, many managers will inflate an employee's performance rating, but not all employees are superstars who consistently exceed expectations. Although it may make a manager's life easier in the short term to just give a lackluster or struggling employee a pass on his or her evaluation, it will be extremely difficult later on to defend a decision to discipline or terminate that employee for performance-based reasons when the evaluations reflect a stellar performance record.
Resolution #3: Address work conflicts promptly
Nearly all employment law claims stem from interpersonal conflict between employees, especially conflicts (perceived or actual) between an employee and a new manager. Whatever you do, don't turn a blind eye toward such conflicts. Failure to act often leads to discontent, lack of trust, and a lack of loyalty. To keep problems from spiraling out of control, you should identify and address employee conflicts in a timely manner and follow-up with the individuals involved to ensure that the situation has been satisfactorily resolved.
Resolution #2: Apply policies and procedures consistently
Consistent application of your organization's employment policies and procedures provides your first and best line of defense to employment law claims. Inconsistency breeds complaints of favoritism and may also provide circumstantial evidence of discrimination or retaliation. Before you write someone up for returning late from lunch, make sure you are treating the employee the same as you would other employees under your supervision who committed the same or similar infraction.
Resolution #1: Document, document, document
Come on, you knew the number one spot was going to be reserved for documentation, didn't you? Documentation is to HR as location is to real estate investment. It's everything. If something happens at work (e.g., discipline, conduct issues, interpersonal conflict, leave requests) that you think could somehow become important in explaining the actions of management or to challenge the accuracy of an employee's complaint (or yet to-be-filed EEOC charge or employment lawsuit), there needs to be documentation about it somewhere to back up your story. I don't care if you prepare a full-length investigative summary, write a memo to the file, send an e-mail to yourself, or jot it down on a cocktail napkin and throw it in your desk drawer–JUST DOCUMENT IT.
Well, there you have it, folks. Five HR resolutions to help keep you out of the doghouse (and the courthouse) in 2017. Unlike my resolution to cut carbs, I hope you will actually keep these resolutions next year.
Happy New Year to all!
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