I love representing passionate, driven small business entrepreneurs. I see a lot of common patterns in representing them. Naturally, there is a tendency to focus all of their resources and energy on selling their unique products and services, and before they know it they are successful. Their business and sales have grown, and so has their staff. The rush of initial success is intoxicating. While I truly believe every entrepreneur endeavors to be the type of employer that they always wish they had before they went out on their own, inevitably reality crashes in – they have their first employee problem. A wave of emotions suddenly takes over. Don’t these employees know have good they had it? Don’t they appreciate the opportunity you gave them? BUT STOP! This is where critical mistakes are made that can result in costly lawsuits. Employment law IS NOT intuitive. Just doing what feels right is often very wrong – illegal in fact. It’s time to consult a lawyer.
After listen to the facts surrounding the problem, lawyers like myself will begin to look at the source of the issue and whether adequate protections have been in place. The first place to look is in the Employee Handbook. Did you adequately define your expectations of your employees? Do they know what conduct warrants discipline? Do you provide an explanation of the employee’s rights and outline how you will enforce and address them? Do you have a handbook at all?
So often, these issues are not address, and this creates several problems. First, not including certain policies in a handbook, like a sexual harassment policy, will cause you to not be able to avail yourself of certain legal defenses if a lawsuit should arise. Second, if you haven’t defined your expectations, such as attendance, and have not defined the consequences for failing to meet expectations, such as discipline, then it may be very difficult for you to argue that your motivation for terminating an employee was because of those undefined expectations, and not because of an illegal factor such as sex, race, age or disability discrimination, among others.
The first step in handling your situation may often be to get a thorough employee handbook in place, and distributed to your employees. It will teach you as much about your responsibilities to your employees as it will teach them about their responsibilities to you. A good handbook, combined with proper enforcement of rights, equal enforcement of discipline and proper training can often help minimize potential employment law claims.
Once in place, employers should regularly review and update their handbook in accordance with updates in the law, and distribute the amendments to the employees.