EMPLOYMENT LAW 2005: How to Keep your Employees as Assets, not Liabilities

TED SMITHCornell Smith & Mierl, L.L.P.

1221 S. MoPac Expwy., Suite 330Austin, Texas 78746

tsmith@cornellsmith.com(512) 328-1540

EMPLOYMENT LAW 2005:

How to Keep your Employees as Assets, not Liabilities

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

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….

…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

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

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

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

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

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

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

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

THE TOP TEN COMMON EMPLOYMENT LAW MYTHS

““I PAY EVERYONE A I PAY EVERYONE A SALARY TO AVOID SALARY TO AVOID OVERTIME.”OVERTIME.”

WE LEASE OUR EMPLOYEES SO WE’RE WE LEASE OUR EMPLOYEES SO WE’RE NOT LIABLE!NOT LIABLE!

SINCE SHE CONSENTED, IT’S NOT SINCE SHE CONSENTED, IT’S NOT HARASSMENTHARASSMENT

NO OFFENSE WAS INTENDED SO IT’S NO OFFENSE WAS INTENDED SO IT’S NOT HARASSMENTNOT HARASSMENT

IT WASN’T A FORMAL COMPLAINTIT WASN’T A FORMAL COMPLAINT

AT LEAST THERE’S NO INDIVIDUAL AT LEAST THERE’S NO INDIVIDUAL LIABILITYLIABILITY

DOCUMENTING PROBLEMS BLOWS THEM DOCUMENTING PROBLEMS BLOWS THEM OUT OF PROPORTION OUT OF PROPORTION

THE EQUAL OPPORTUNITY THE EQUAL OPPORTUNITY SCREAMER IS NOT A PROBLEM SCREAMER IS NOT A PROBLEM

ANNUAL EVALUATIONS ARE A GREAT ANNUAL EVALUATIONS ARE A GREAT IDEAIDEA

WE CAN’T AFFORD TRAININGWE CAN’T AFFORD TRAINING

NO. 1 WAY TO KEEP YOUR EMPLOYEES AS ASSETS, NOT

LIABILITIES!

HIRE A TOP-NOTCH EMPLOYMENT LAWYER TO TRAIN YOUR MANAGEMENT!

TED SMITHCornell Smith & Mierl, L.L.P.

1221 S. MoPac Expwy., Suite 330Austin, Texas 78746

tsmith@cornellsmith.com(512) 328-1540

EMPLOYMENT LAW 2005:

How to Keep your Employees as Assets, not Liabilities