EMPLOYMENT LAW 2005: How to Keep your Employees as Assets, not Liabilities
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Transcript of EMPLOYMENT LAW 2005: How to Keep your Employees as Assets, not Liabilities
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TED SMITHCornell Smith & Mierl, L.L.P.
1221 S. MoPac Expwy., Suite 330Austin, Texas 78746
[email protected](512) 328-1540
EMPLOYMENT LAW 2005:
How to Keep your Employees as Assets, not Liabilities
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EMPLOYMENT LITIGATIONPREVENTION
TWO KINDS OF EMPLOYEES:TWO KINDS OF EMPLOYEES: AT WILL & FOR CAUSEAT WILL & FOR CAUSE
GENERAL RULES OF THUMB:GENERAL RULES OF THUMB: HIRING TO FIRINGHIRING TO FIRING
TOP TEN WAYS TO AVOID TOP TEN WAYS TO AVOID EMPLOYMENT LITIGATIONEMPLOYMENT LITIGATION
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THE TWO TYPES OF EMPLOYEES
• "FOR CAUSE" EMPLOYEES "FOR CAUSE" EMPLOYEES MAY BE TERMINATED FOR A GOOD MAY BE TERMINATED FOR A GOOD REASON ONLYREASON ONLY
• "AT-WILL" EMPLOYEES "AT-WILL" EMPLOYEES
MAY BE TERMINATEDMAY BE TERMINATED For Good ReasonFor Good Reason For Bad ReasonFor Bad Reason For No ReasonFor No Reason But….But….
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…Not for an Illegal Reason
Such As:
Filing personal bankruptcyFiling personal bankruptcy
Asking questions about overtime payAsking questions about overtime pay
Refusal to engage in a criminal actRefusal to engage in a criminal act
Filing of a workers’ compensation claimFiling of a workers’ compensation claim
Retaliation for taking FMLA leaveRetaliation for taking FMLA leave
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UNLAWFUL DISCRIMINATION
Sex/pregnancy/sexual orientationSex/pregnancy/sexual orientation RaceRace National originNational origin U.S. Citizenship U.S. Citizenship ReligionReligion Age (protecting persons age 40 and over)Age (protecting persons age 40 and over) DisabilityDisability Retaliation for having claimed discriminationRetaliation for having claimed discrimination
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GENERAL RULES OF THUMB
KEY INTERVIEWING RULESKEY INTERVIEWING RULES
If It Is Not Job-Related, Don’t Ask!If It Is Not Job-Related, Don’t Ask!
EXAMPLESEXAMPLES::– Are you married? Are you married? – Do you have young children?Do you have young children?– How old are you?How old are you?
Be ConsistentBe Consistent
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KEY MANAGING RULES
Be Familiar With Your Personnel HandbookBe Familiar With Your Personnel Handbook
Avoid Legal Pitfalls -- Involve Human Resources / Avoid Legal Pitfalls -- Involve Human Resources / Legal CounselLegal Counsel
Be Honest In Employee EvaluationsBe Honest In Employee Evaluations
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KEY MANAGING RULES
Be Consistent In Disciplinary Be Consistent In Disciplinary ActionsActions
Document! Document! Document!Document! Document! Document!
Anything You Say Can Be Anything You Say Can Be Used Against You And The Used Against You And The CompanyCompany
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KEY FIRING RULES
Avoid Legal Pitfalls -- Involve Human Avoid Legal Pitfalls -- Involve Human Resources / Legal CounselResources / Legal Counsel
Follow Written And Oral Company PoliciesFollow Written And Oral Company Policies
Consider Progressive DisciplineConsider Progressive Discipline
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KEY FIRING RULES
Consider Whether Employee Was CounseledConsider Whether Employee Was Counseled
Has The File Been Properly Documented? Has The File Been Properly Documented?
Be Considerate!Be Considerate!
Be Honest About The Basis For The DecisionBe Honest About The Basis For The Decision
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KEY FIRING RULES
State Just The Facts To Avoid Slander / LibelState Just The Facts To Avoid Slander / Libel
Listen Politely To Their SideListen Politely To Their Side
Check Company Policy Before Giving Any Check Company Policy Before Giving Any Reference Or RecommendationsReference Or Recommendations
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THE TOP TEN COMMON EMPLOYMENT LAW MYTHS
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““I PAY EVERYONE A I PAY EVERYONE A SALARY TO AVOID SALARY TO AVOID OVERTIME.”OVERTIME.”
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WE LEASE OUR EMPLOYEES SO WE’RE WE LEASE OUR EMPLOYEES SO WE’RE NOT LIABLE!NOT LIABLE!
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SINCE SHE CONSENTED, IT’S NOT SINCE SHE CONSENTED, IT’S NOT HARASSMENTHARASSMENT
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NO OFFENSE WAS INTENDED SO IT’S NO OFFENSE WAS INTENDED SO IT’S NOT HARASSMENTNOT HARASSMENT
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IT WASN’T A FORMAL COMPLAINTIT WASN’T A FORMAL COMPLAINT
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AT LEAST THERE’S NO INDIVIDUAL AT LEAST THERE’S NO INDIVIDUAL LIABILITYLIABILITY
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DOCUMENTING PROBLEMS BLOWS THEM DOCUMENTING PROBLEMS BLOWS THEM OUT OF PROPORTION OUT OF PROPORTION
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THE EQUAL OPPORTUNITY THE EQUAL OPPORTUNITY SCREAMER IS NOT A PROBLEM SCREAMER IS NOT A PROBLEM
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ANNUAL EVALUATIONS ARE A GREAT ANNUAL EVALUATIONS ARE A GREAT IDEAIDEA
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WE CAN’T AFFORD TRAININGWE CAN’T AFFORD TRAINING
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NO. 1 WAY TO KEEP YOUR EMPLOYEES AS ASSETS, NOT
LIABILITIES!
HIRE A TOP-NOTCH EMPLOYMENT LAWYER TO TRAIN YOUR MANAGEMENT!
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TED SMITHCornell Smith & Mierl, L.L.P.
1221 S. MoPac Expwy., Suite 330Austin, Texas 78746
[email protected](512) 328-1540
EMPLOYMENT LAW 2005:
How to Keep your Employees as Assets, not Liabilities