The causes of a lawsuit
There are a number of reasons why situations reach the crisis stage:
* Uncaring attitude;
* Inconsistent treatment of employees;
* Failure to follow policies/protocol/established practices;
* Failure to understand and follow the law;
* Poor training of supervisors;
* Discriminatory statements or actions; and
* Statistics that support discriminatory actions or practices.
Let's discuss these causes and how they may be resolved prior to insertion in the legal system.
Concerning uncaring attitude, we've established earlier in this article that the best way to run a business is with a caring and just attitude.
If you don't buy into that philosophy, or don't have the patience for it, can I please appeal to your wallet? Trial lawyers: $300 to $500 per hour; legal team: $200 to $400 per hour; legal administrative support staff: $100 per hour.
Even if you go to trial and win, you're still probably looking at a six-figure price tag. So when a potential problem walks in your door, think jury trial! Ask yourself how, in two to four years, is a jury going to react to your actions today?
Listen to employees! Ensure they have a listening ear somewhere within the company. A concerned human resource person or supervisor can assuage feelings and abate problems.
Keep in mind that inconsistent treatment of employees, contradictions, failure to follow policies, protocols and procedures will get you in trouble. If you are going to have policies, handbooks and procedure manuals, you must:
* Communicate them;
* Follow them;
* Make them understandable by all;
* Be consistent with their message;
* Keep them current;
* Make sure all relevant policies are posted and available to employees; and
* Have an open-door policy with employees regarding your policies.
The dealerships at greatest risk are ones that have written policies that are not followed. It is less of a risk for a company to have minimal policies that are followed rather than extensive handbooks, etc. that are ignored.
Do not play favorites. Let's face it, we all have certain personalities whom we enjoy and others we could pass on. Set requirements for a job and let the employee's performance do the talking. Inconsistent or contradictory application of policies will breed discontent.
Consider establishing a peer review program, an internal complaint review procedure or implementing mandated arbitration. Courts have given their stamp of approval to arbitration in a non-union setting. A professionally drafted arbitration policy and procedure provides binding recourse for the employee and the dealership that does not involve the court system. An arbitration policy can keep your dealership out of court!
Understand the law?
Other areas of concern are the failure to understand the law, poor training of supervisors and discriminatory statements or actions.
Spending money on training often comes under scrutiny in tough financial times. I would argue that training is the surest way to protect your bottom line. Your supervisors are your dealership's front-line representation. At the minimum they should be trained to at least recognize legal situations such as disabilities, age, race and, above all, sexual harassment issues.
Additionally, your supervisors need to know the law. They can put your dealership at risk by not understanding how their actions and statements can be delivered in a legal or illegal manner.
Remember: Document, document, document!
Your supervisors should be taught to keep accurate records regarding an employee's absences, tardiness and failure to perform the requirements of a job. Company management should understand the importance of documenting all ongoing communication with an employee. Documentation should consist of the good and the bad.
So often our documentation on employees only includes ``what the employee has done wrong!'' Legally, this can look contrived. A supervisor should not be blindsiding an employee when an employee is placed on suspension or is ultimately terminated.
Determine any statistics that support discriminatory actions or practices at your dealership.
It is prudent business practice to run overall statistics for your organization regarding the most common discrimination areas: age, race, gender. These statistics should include a review of salary levels, rank of position, opportunities for advancement and the percentage of minorities in positions compared with the percentage of minorities in your hiring area. A review of these statistics on a periodic basis should indicate where your company has potential liability.
When do you bring a lawyer into the decision-making process? This is a good but not easy question to answer.
The response depends on your available resources. Not every issue needs a lawyer. If you have a human resource employee on staff who has extensive knowledge and experience regarding avoidance of the causes I've mentioned, a lawyer can be used as a resource, but your human resource person can be your lead person.
However, a lawyer should be on call, regardless of your internal resources, when an employee starts ``mouthing lawsuit.''
Mouthing lawsuit clues often sound like this:
* Joe mentions that he and his lawyer were fishing last Saturday and they were talking about the reductions in force taking place at work.
* A lawyer who is ``just a hunting buddy'' of the employee calls the dealership and asks questions.
* Joe-who has never even been close to the human resources department-is suddenly asking for copies of his file, copies of his job description and his last three years' performance appraisals.
* Joe starts asking very detailed questions using words or phrases that you have never heard him say before, like: ``So are you saying the ability to stack tires in the warehouse is an essential function of my job?''
* You get a letter in the mail from an attorney who says he is ``just making inquiries on Joe's behalf.''
In every clue situation cited above, a calm and poised response should be given. Don't let Joe and his outdoors-minded lawyer friend get you flustered.
Mary Miles can be reached via e-mail at [email protected]
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Tips for preparing written correction notices to employees
When disciplining an employee, it is suggested the following procedures be followed:
* Show the important facts.
* State whether the improper conduct violates an established company rule.
* Refer to any prior verbal warnings, corrections, counseling or cautioning.
* State that this written correction gives the employee an opportunity to correct his or her improper conduct or action in the future.
* Identify specific steps to be taken and/or improvements to be achieved by the employee.
* Identify specific action the manager will take to assist the employee.
* Identify a time frame in which improvement should be made and set a follow-up date for discussion.
* Obtain the employee's signature acknowledging receipt of the written correction notice.
* Give a copy of the written correction to the employee in private and file a copy in the employee's personnel file.
* Follow your company's guidelines for dealing with employee behavior/performance deficiencies.
* Obtain assistance from appropriate management and human resources personnel.
Source: California Tire Dealers Association-South newsletter