Keeping Out of Trouble - Managing Your Employees

July 28, 2005

Frost Brown Todd LLC

Managing your workforce can be a challenge. Although there is no cookie cutter approach to ensure success, there are ways you can minimize the inevitable difficulties that arise between employer and employee.

First, you need to communicate your expectations to your employees. Large employers almost always have Employee Handbooks. Among other advantages, Employee Handbooks are a clear method of communicating expectations and procedures to employees with a single voice. A poorly drafted Employee Handbook, however, is worse than no Handbook at all. If you think that you need an Employee Handbook, you probably should speak to an employment lawyer about its contents.

If you decide to have an Employee Handbook, you should state clearly in the Handbook that nothing in the Handbook changes the fact that every employee is at-will -- that is, the employee may quit at any time for any reason and may be terminated at any time for any reason. If this provision is not in your Employment Handbook, you may face a claim that the Employee Handbook is a contract between your organization and your employee. A recent jury verdict in this area awarded a plaintiff more than half a million dollars on just such a claim.

Even if you decide against having an Employee Handbook, your organization should have a written anti-harassment policy. The primary goal of a written policy prohibiting harassment is to let your employees know that harassment will not be tolerated in your work place. Moreover, such a policy can help your organization avoid liability in the event you are faced with harassment claims. Needless to say, the anti-harassment policy must be enforced. If possible, the policy should provide several different outlets for complaints. If you see anything that might be construed as harassment, stop it. If you receive a complaint, you need to investigate and take prompt, corrective action. Complaints about alleged harassment should be taken seriously and an employment lawyer probably should be consulted before making a decision as to how to proceed.

Once you have established expectations for your employees, you need to communicate honestly with them as to whether they are meeting your expectations. These evaluations should be put in writing and kept in a personnel file. The best practice is to provide written evaluations at least once a year. You should be honest, thorough and accurate in your evaluations. Use specific examples and avoid vague adjectives. Unless you are going to be candid in your performance appraisals, you are better off not doing them at all. Too often, supervisors rate employees as “good” or “outstanding” and then later have to explain, after the employee has been discharged, why their performance was in fact lacking. In the event the employee challenges the discharge, the supervisor’s failure to be candid with the employee may strengthen the employee’s case.

Employee discipline also can raise legal issues. You should be consistent in the type of discipline that is doled out. For instance, if you give a written warning to a female orderly for being late to work twice, then you should also give a written warning to a male orderly when he is late to work twice. Of course, sometimes the situations are just different with two employees. Just make sure you have analyzed your past practices – and can convincingly explain why you are treating the problems differently.

For serious problems, suspending an employee can be an effective method of discipline short of termination. You should carefully consider whether you impose a “suspension” or “probation.” Probation may convey a message you do not intend, i.e., “you better mend your ways during this probationary period,” when you intend to tell the employee, “you better shape up permanently or you are out of here.”

In sum, getting the best out of your employees is an art, not a science. The best strategy is to be forthright. Let your employees know what is expected and how they are doing. When imposing discipline, consider the message you are trying to convey and make sure you are consistent in your approach and application.

© 2005, by David A.Skidmore, Jr.and Katherine C. Morgan

David Skidmore and Katherine Morgan practice in labor and employment law in the Cincinnati office of Frost Brown Todd LLC. David can be reached at (513) 651-6185 and Katherine can be reached at (513) 651-6838 and