Post on 19-Mar-2017
Top 3 Legal Pitfallsin Human Resources
Lessons from the trenches . . .
Robert C. Jackson, Esq.
HSMcLaw.com
We Live in a Challenging Business Environment
• Economic Challenges• More Demanding Employees . . . Ms and Nets• New Technologies Reshaping World• Increased Regulation and Legislation• Business, in general, is Under Attack
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What Can You Do?• Look at What You CAN Control• Take Advantage Where You Can• Technology, Economy, Good Policies and
Rules
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Top 3 Legal Pitfalls of HR
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• More than 3, but these are the biggest problems I see TODAY
• Often no RIGHT answers • Personality• Workplace culture• Economics
• Questions at any time
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Points to Remember
• One Size Does NOT fit ALL • Business Size Matters• Perception is Reality• Make Omelets, Must Break Eggs
EMAIL can be Very Dangerous
Never Forgets, Always there.
They WILL find it.
Can turn a good case bad in an instant
Often re-interpreted YEARS after the event
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Email can be Very Dangerous
• Think before you type• Keep it Job-related
• Avoid specifics, speak generically
• PICK UP THE PHONE
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How You Handle Complaints is Important
Why? The Big 3 Retaliation
Workplace EnvironmentWhistleblowers
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How You Handle Complaints is ImportantEspecially Important when complaint
involves:
• Race, Sex, Religion, National Origin, etc . . .
• Disability or medical conditions• Age
• Illegal Activities• Workers Comp
• Workplace Conditions• PRIOR COMPLAINTS
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How You Handle Complaints is Important
Recommend deal with all complaints similarly:
• TAKE THEM SERIOUSLY• Focus Complaint (in writing preferred)
• Investigate and Document• Conclude and Follow Up with
Complaintant• Always Leave door open
• But . . . put burden on Complainer
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How You Handle Complaints is ImportantDealing with Complaints is difficult:
Most Employees believe you will not deal with them
Prove them wrong.
Act ProfessionalTreat employee with respect.
DO NOT RETALIATE!Tell them not tolerated. And watch for it.
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Terminations can be Dangerous
Why? LiabilityEquivalent to a car accident
Locks in damages“Tangible employment action”
Emotional event for all = Irrational Decisions
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Terminations can be Dangerous
Convince Employees to Fire Themselves
P.S. – This is a really good strategy
(but can be hard – and not as good as it used to be)
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Convince Employees to Fire Themselves
• Hold employee accountable• “You are not the boss of me!”
• Legally: Master-servant relationship• Job-related
• Keep up pressure• Document, Document, Document
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Convince Employees to Fire Themselves
RESULTS:
Employee will Improve – better workplace
OR
Employee will get frustrated – Quit
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Convince Employees to Fire Themselves
Benefits of Employee Quitting:
• Harder (not impossible) to Sue• No Unemployment (usually)
• Their decision, not yours (face saving)• Gives them time – see handwriting on
wall
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Terminations can be DangerousOther Strategies:
• Negotiated Separation (severance)• Instant Removal (not recommended but necessary
at times)• Any kind of turmoil – get them out of there (pay 2
wks)• Actual practice is company and industry culture
specific
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Terminations can be DangerousOther Strategies:
• Be clear about what you are doing and why you are doing it
• Don’t always need a reason• but don’t be afraid to give one, if
documentation is solid
• Remember- EMOTIONAL event . . . unless prepared for it.
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Top 3 Legal Pitfalls of HR TODAY
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1. EMAIL2. COMPLAINTS3. TERMINATIONS