As a business owner, you probably think of personnel matters in broad terms of anything related to your employees.
The term personnel matters is a legal one pertaining to an area of law regarding termination of employees, labor unions, employment laws, and personnel decisions and actions including hiring, promotions and demotions, employee contracts, transfers, and matters of employee discipline, including suspensions. Broadly, this area of practice can also include matters relating to workers’ compensation, wages and overtime laws, the Americans With Disabilities Act, and employee handbooks.
While you may think a business would only need an attorney if faced with litigation, every business, especially small businesses, needs to consult an attorney on numerous personnel matters. For example, your employee handbook lays out your company’s rules and policies, but you need to make sure that they all fall in line with the law. That includes the Americans With Disabilities Act, the various worker’s compensation acts, and the Equal Employment Opportunity Commission (EEOC) rules. Your hiring and interview process requires the same legal vetting.
A business attorney like attorney Andrew Weisblatt deals with such matters on daily basis as well as matters of contracts. Your best course of action is always to consult with an attorney before taking a business action so you avoid the possibility of litigation.
You might think that an attorney consulting with you on personnel matters would need you to already have the personnel, but one of the most common times to meet with an attorney on these matters occurs before you have a single employee. You need to plan business procedures including those for hiring and firing that follow the letter of the law. Each state has its employment and personnel laws that you must follow in addition to the federal law.
Procedure provides you with protection. You have in place specific mechanisms for hiring and firing as well as for employee discipline that you know comply with state and federal law. This protects you from legal action so long as your management follows procedure. It also provides them a step-by-step process to follow when an employee performs in an inappropriate manner. Your employee handbook details the rules that every employee must follow in order to retain employment. Properly written and legally complying position descriptions and position manuals provide an exact list of each personnel’s position duties. Your business lawyer can help you develop these items so that following them ensures your protection in case an employee does sue your business.
Some situations lend themselves to the potential of a lawsuit more than others. Once you have employees, certain situations, such as documenting employee misconduct or job performance issues, can result in legal problems. An attorney can help you determine if their actions warrant termination and can recommend steps to reduce lawsuit risks. Specifically, consult with an attorney before firing an employee in the following situations:
1. Your contract with the employee provides you with limited reasons for firing the employee. This includes situations in which the employee thinks they have an implied employment contract that limits your reasons for firing them. The latter situation could stem from oral or written exchanges at the time of hire or during personnel evaluations or established in email or other messaging exchanges or the text of the offer letter.
2. Your termination would fall during a time just before the employee’s retirement, benefits, or stock options would vest. Even if you did not mean to cut them off of these monies, firing at such a time can provide legal leverage for the employee.
3. Your termination closely follows an employee filing a claim or complaint or taking a whistleblower action with a government agency or labor union. This includes allegations of unethical or illegal activity.
4. Your termination closely follows an employee filing a harassment or discrimination complaint.
5. Your company’s demographics would radically change if you fired the employee. This does not just apply to small businesses with a handful of employees. It also applies to corporations whose C-level firing would radically alter their leadership’s demographics or the composition of their Board of Directors.
6. The employee can access the business’s competitive information or trade secrets. If they have access to the proverbial seven herbs and spices recipes, you need an attorney.
7. The employee belongs to a protected class <b>and</b> recently revealed that at work. This includes a wide range of protected classes including, but not limited to, religion practiced, disability status, pregnancy, or other means of becoming a parent.
8. The individual has the potential for sabotage, vandalism, or violence, or you believe them to have that potential. This does not include you imagining they might, but needs to include actually documented occurrences of them losing their temper at work and exhibiting a violent nature or evidence of prior malicious activity at work.
9. The employee’s firing issue is excessive absences as long as the employee could argue that the absences are protected by the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA). You would know in advance if either situation applied because your employee would contact the human resources department to begin using their FMLA leave. Similarly, while ADA provides protection for those with a documented disability, accommodation for the disability inherently requires the employee to reveal the limitation at hiring or at the development of the disability. It may seem obvious, but you can argue in court that your company could not provide accommodation for the employee without knowing that they needed any accommodation or what it was. Also, in matters of hiring, ADA protects potential employers from frivolous lawsuits by stating that the employee must be able to perform the job’s duties as written with “reasonable accommodation.” Reasonable typically refers to physical items like ramps to access the building, speech-to-text software for someone unable to type or see, a specific type of ergonomic desk, etc., but also protects an employee who would need to have a weekly doctor’s appointment within the workweek hours. This complex area always requires an attorney, but in general, so long as they could do the job on their own, by himself or herself, with a reasonable accommodation such as a desk to which they can rollup a wheelchair or a ramp to access the building, ADA applies. If they require additional people to do their job, that does not fall under reasonable accommodation.
10. Despite an investigation into the allegations or acts for which you want to fire the employee, they deny doing the thing of which they’re accused.
11. It may sound childish, but if they have an attorney representing them, you need an attorney representing you. You should not attempt to self-represent when your employee has retained the services of an attorney.
This may sound like you will spend every moment consulting with your lawyer, but by spending time developing sound procedures for managers to follow, you can avoid consulting with an attorney repeatedly down the road. Focus on creating appropriate, legal procedures and processes that fall within the law and training each employee, especially managers, to follow the procedure exactly. Perfecting your hiring process ensures fewer problems down the line.
