Three Foolish Things Employers Should Avoid

Posted on April 1, 2022 in Consulting

April Fool’s Day took on a new and special meaning for me because it is my workplace anniversary at WKPZ.  Margo and I joined the firm twelve years ago.  Sort of ironic that I get to celebrate something special on a day I really hate.   I find practical jokes distasteful and mean-spirited, and I think they have no place at work.  Thinking on the topic of foolish workplace antics, I thought in this newsletter I would offer my thoughts on three foolish things employers should avoid.

1.  Never distinguish formal from informal complaints of harassment/discrimination.

After 28 years of practicing law, I still cannot define an “informal” complaint.  But I will do my best to explain the bad explanations offered to me over the years by employers who tried to distinguish informal from formal complaints of harassment and discrimination.     First, an “informal” complaint excuses an employer from investigating the allegations.   Second, an “informal” complaint remains so secretive that management neglects to record the complain as if the conversation never happened.  Third, with “informal” complaints the alleged bad actor faces no disciplinary action.

Tip:  When you hear the term “informal complaint” promptly ensure the matter turns into a formal investigation.

2.  At-will employment does not justify ignoring progressive discipline.

Every employee handbook explains that employment with the company is on an at-will basis, except if you have a contract signed by a Company officer.   Managers frequently distort this statement to quickly fire an employee and ignore the basic notice of progressive discipline.  Fairly often I hear a manager say: “I thought this was at-will employment; why do I have to explain my reason for firing someone?”   Easy answer:  most people (and juries are a collection of 12 people) expect every employee be given a fair chance before termination.   No juror cares about at-will employment.  I have never mentioned “at-will employment” at any trial.   Juries want and expect every employer to have followed some form of progressive discipline unless (and this is rare) someone did something so bad they should be fired on the spot (e.g., serious sexual harassment, assault, drunk driving, theft).

Tip:   A manager who refers to “at-will” employment in a disciplinary discussion might lack a defensible reason for taking the proposed action.

3.   Avoid Bad Timing

Smart employers accept the need to delay a termination when presented with new circumstances. For example, firing an employee for performance reasons should get pushed out when an employee announces they need Family Medical Leave.  Similarly, it would be unwise to issue a PIP to an employee who recently announced she is pregnant.  This all sounds so obvious.  Yet, sometimes a company gets very set in a decision and unwilling to pull back even when a situation clearly warrants a pause.

Tip:   Act promptly with disciplinary and termination decisions to avoid new circumstances that may complicate a situation