© 2008 Greensfelder, Hemker & Gale, P.C. Working With Employees: Common Issues/Mistakes Kevin T....

© 2008 Greensfelder, Hemker & Gale, P.C.

Working With Employees:Common Issues/Mistakes

Kevin T. McLaughlin, Esq.Greensfelder, Hemker & Gale, P.C.

January 20, 2011

This document offers opinions of an informative nature and should not be considered as legal advice to any specific matter. © 2011 Greensfelder, Hemker & Gale, P.C. All Rights Reserved.


“Baseline” Information

Missouri = At-Will Employment State

Exceptions:

1) Contract

2) Whistleblowing/Unlawful Retaliation

3) Protected Classes


Asking prohibited questions on the application or during the interview process

Mistake #1


• Focus on questions that are job related

• Avoid Seemingly “Innocent” Tops– Children– Origin of name– Comments about foreign language

fluency/accents– Ethnic clothing

Interviewing Tips


Mistake #2

Failure to document performance problems


Evaluation Tips

• Objectively evaluate skills and behaviors.

• Be Specific• Facts, not conclusions• Reflect job performance on a

comparative basis


• Clarify expectations• Permit employee to submit objections in

writing and attach to evaluation form• Utilize written performance improvement

plan

Evaluation Tips


Mistake #3

Discipline not issued in timely fashion


Discipline Tips

• As practical after the conduct or performance problem occurs

• If discipline is delayed, jury may . . . – question whether there was a performance problem– question motivation / credibility of supervisor

• If you delay, the opportunity is lost!


Mistake #4

Failure to promptly address a complaint of harassment


Tips for Handling Complaints

• Prompt, thorough and impartial investigations

• Hiding head in the sand = automatic liability• Take immediate action• Immediate Action means . . .

– Prompt investigation

– Follow-up to the investigation

– Ongoing Monitoring


Mistake #5

Employer does not have written employment policies.

And the related mistake:

Employer has written employment policies, but does not follow them.


Tips – Basic HR Policies

• The most basic employee handbook should include:– Equal Employment Opportunity Statement – Non-Discrimination Policy– Anti-Harassment Policy– Policy Prohibiting Retaliation– Complaint and Reporting Procedure– Employment at Will Statement– Other Work-Related Policies

• If an employer has written policies and procedures, but does not follow them, employer may be held accountable.


Mistake #6

Inconsistent administration of identical rules


Tips for Administering Policies

• Treat similarly situated people similarly• Inconsistency may result in employees or

former employees claiming that the differences in the application are based on differences (i.e. race, gender, age, etc.)

• When you bend the rules, you are setting precedent


Mistake #7

• Failure to assess risk associated with termination decisions


Prior to making termination decision

• Review Policies• Review Written Agreements• Review Personnel File• Consider Membership of Protected Class• Consider Timing• Review Past Treatment of Similar

Employees


Working With Employees:Common Issues/Mistakes

Kevin T. McLaughlin, Esq.Greensfelder, Hemker & Gale, P.C.

January 20, 2011

This document offers opinions of an informative nature and should not be considered as legal advice to any specific matter. © 2011 Greensfelder, Hemker & Gale, P.C. All Rights Reserved.

© 2008 Greensfelder, Hemker & Gale, P.C. Working With Employees: Common Issues/Mistakes Kevin T....

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