Monthly Archives: November 2016

Twelve Ways to Lessen Employee Legal Risks

12 Ways to Lessen Employee Legal Risk
Your business or organization can reduce tensions from and conflicts with employees… and help lessen the risks of employee-initiated legal actions by focusing on at least 12 areas.

1. Ensure managers and supervisors are qualified to coach and lead.

Studies of the root causes of employee turnover and employee legal actions often trace those underlying causes to unqualified or dysfunctional managers and supervisors. So the single, best way to protect against employee-caused problems is to fill supervisory and leadership positions with individuals who have the temperament and personality traits best suited for coaching and leading others.

2. Train managers and supervisors.

The managers and supervisors who work directly with employees on a day-to-day basis may cause difficulties with employees… or they will avert most of the problems and actually promote harmonious and productive behavior. One key to which results the managers and supervisors get is in the knowledge and training they receive in several areas. These areas include:

The organization’s policies and procedures and their role in applying them and enforcing them;
The myriad of laws and regulations that protect employees and how not to violate them;
How to avoid harassment and abusive interactions with others; and
How to skillfully coach employees.

3. Replace Dictatorial Discipline with Coaching Correction.

The typical, traditional way managers and supervisors went about attempting to correct employee misbehavior and poor performance has been the arbitrary, “dictator,” discipline approach: Tell the employee what they’ve done wrong, discipline them, and threaten them with termination in the future.

There’s a better way, coaching employees to correct behaviors. This approach involves:

Identifying — with the employee — the unacceptable behavior or performance.
Agreement with the employee on the required behavior or performance.
Setting a time/date-certain when the employee will behave or perform as required.
Explaining the consequences to the employee if the behavior or performance does not change.
Agreeing on any additional coaching, training, or education the employee may need to reach the required behavior or performance goal.

4. Hold performance achievement meetings.

Think of the performance achievement meeting as a replacement for the traditional performance review or performance appraisal. In many workplaces, the performance review is never done or is rarely done. In other workplaces, it’s done on schedule once a year. And when it’s done, it typically involves perfunctorily telling the employee what he or she has done right — and especially, wrong — in the previous year. Generally, it also involves giving the employees some kind of rating and telling them whether or not they qualify for a raise.

A performance achievement meeting is different. The focus is on what the employee has done, and is doing, right… and on what the employee can do in the future to do even better. The “agenda” for the meeting is something like this:

These are your (the employee’s) achievements since we talked last about your performance, these are achievement goals for you in the near future and longer-term, and these are the ways that we (the organization), I (the supervisor) and you (the employee) will work together to assure that you’ll reach these achievements.

5. Terminating employees when necessary.

One mistake many organizations and their managers and supervisors make is to avoid the disagreeable act of terminating employees who deserve termination. There are many reasons why some employees, from time to time, don’t belong in a workplace. Some just aren’t qualified and never should have been hired. Some become diehard troublemakers. Some become known under-performers. The other employees quickly learn who these employees are. And the longer management tolerates their presence in the workplace, the more their presence lowers the morale of the other employees.

What to do? Identify these employees. Treat them fairly. But when the “coaching correction” approach doesn’t work, make the decision to terminate. And stick with the decision.

6. Put the right people in the right jobs.

One cause of frustration for an employee is to get stuck working in the wrong job. The employee’s performance suffers and this has a negative impact on the organization’s results. Make it one of a manager’s and a supervisor’s responsibilities to identify employees who are better qualified for other positions. Develop systems in your organization that will channel these employees into new positions where they can excel.

7. Improve the hiring process.

The best way to avoid terminating deserving employees is to not hire undeserving applicants in the first place. So put more time and effort into recruiting and hiring the individuals who are the best fit for the jobs you have open. This means:

identifying the essential tasks and the essential qualifications for each position,
screening resumes to focus on interviewing only those individuals who appear to have the essential qualifications,
testing these applicants to identify those who actually have the qualifications, behavior style, and attitudes necessary for success in your workplace, and
checking on the background and work history of finalists.

8. Empower employees as much as possible.

Empowerment in the workplace means giving employees the opportunity and the responsibility to use their knowledge and talents to achieve the best possible results in their jobs. To see empowerment happen, employees have to know their expanded boundaries for making decisions. They have to know they have the right to make these decisions. And they have to know they’ll not be disciplined for making decisions that go wrong. (One of the manager’s and supervisor’s responsibilities, in turn, is to help employees learn from the experience when their decision doesn’t work out.)

9. Set up an ongoing employee idea program.

Call it a suggestion program if you like, but don’t limit it to the old suggestion box type program in which employees submit suggestions… and never hear from management. Go beyond that. Commit to responding quickly to all employee ideas. And empower the employee who submits the suggestion to implement it, or to have a part in implementing it, whenever possible.

10. Help employees feel needed and important.

This desire to feel needed and important is one of the basic desires of nearly all employees. Employees who feel they are needed at work and that what they do is important to the company’s or organization’s success are more likely to feel positively about their employer. And they are less likely to see grievances where there are none.

So gather supervisors and management staff together and brainstorm ideas to help employees feel needed and important. Design a plan to carry out which is intended to increase employees’ feelings that they are needed in their jobs, that their jobs are important, and that what they do is appreciated.

11. Use caution before disciplining or terminating an employee.

Before disciplining or terminating an employee, review the individual’s work history carefully. In addition to the negatives about the employee, consider also the positives. Review the positive qualifications that influenced the hiring of the employee and ask, What have I overlooked? Are the positive qualifications still present? Can this person still contribute positively? What commitments will we make, and what commitments will we ask the employee to make, to continue employment with us? What are the penalties for failing to improve?

Also, before disciplining or terminating an employee, consider the individual’s age, sex, race, and any other legally protected trait or qualification the employee may have. Ask this question: Will a jury or human rights hearing officer believe our actual intent was to “target” or “get rid of” a person in a protected class?

Important: Document discipline actions in writing. Describe the employee’s conduct or performance and why it is unsatisfactory. Also describe any steps you have given the employee to improve and any deadlines for improvement.

In all dealings with your employees, be courteous and respectful. For example, when terminating an employee give as much advance notice as possible. Also, when communicating with employees, do not speak aggressively, do not belittle them and do not use disrespectful or insulting words.

[NOTE: Information and guidance in this story is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issues.]

Want to Make a Federal Case Out of It?

Want to Make a Federal Case Out of It?
You may have heard someone say: “Don’t make a federal case out of it.” But what happens if you do want to commence a federal case? Both the federal government and each of the state governments have their own court systems that hear criminal and civil cases.
In federal courts, there are federal rules of evidence, and rules of civil, criminal, bankruptcy and appellate procedure that must be followed.
Types of Case Only Heard in Federal or State Courts

To determine if your civil case is a federal case, you have to look at Federal Rules of Civil Procedure (FRCP), which govern civil proceedings.

The United States Supreme Court proposes the FRCP and Congress has veto power over them for a seven month period. There are 86 rules in the FRCP, which are grouped into 11 titles.

For example:

Rule 3 provides that a civil action is commenced by filing a complaint with the court.
Rule 4 deals with procedures for issuance of a summons, when the complaint is filed, and for the service of the summons and complaint on the defendants.
Rule 5 requires that all papers in an action be served on all parties and be filed with the court.
Important: Under Title II, Rule 12, a federal court has the authority to dismiss a case for lack of subject-matter jurisdiction upon a motion of a party or upon its own initiative. Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases related to a specific subject matter. For instance, only U.S. Bankruptcy Courts have the authority to hear bankruptcy cases.








Federal Jurisdiction

By far, the most important two categories of federal subject-matter jurisdiction in civil cases are:

1. Federal question jurisdiction. Under federal law, district courts have subject-matter jurisdiction in all civil actions arising under the Constitution, laws, or treaties of the United States.

To meet the requirement of a case “arising under” federal law, the federal question must appear on the face of the plaintiff’s complaint. Note that, this jurisdiction is ordinarily not exclusive. States may hear claims based on federal law in some cases.

2. Diversity jurisdiction. Cases may be filed in federal courts based on the “diversity” of the litigants, such as between citizens of different states, or between U.S. citizens and citizens of other countries.

One limit to diversity jurisdiction is that only cases involving more than $75,000 in potential damages can be filed in federal courts. Cases with potential damages below $75,000 must be heard in state courts.

A corporation is treated as a citizen of the state in which it is incorporated and the state in which its principal place of business is located. A partnership or limited liability company is considered to have the citizenship of all of its constituent partners or members.
US Supreme Court

As you can see, to bring a federal case, there are many rules to follow. Speak with your attorney about whether your case should be a federal case.

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