Try a little honesty

Filed under: Focus |

Being honest isn’t always the easiest thing to do, and its absence can make matters worse in the long run, especially in an office environment.

Employers who have a tough time being up front with their employees could find themselves facing difficult employment lawsuits.

“One of the things employers do is they’re too nice,” said Eric Hall, an attorney at Rothgerber Johnson & Lyons LLP. Being too nice is misleading to employees during reviews and day-to-day operations, he said.

Honesty is a necessity from the very beginning until the very end, Hall said. When interviewing a potential employee, let them know what is expected of them.

An employer would also be wise to record his or her reasons for hiring a particular candidate, said Ashley Jordaan, a partner with Holme Roberts & Owen LLP. “I think one of the major things to consider when hiring someone is to base your decision on objective factors and to document your decisions”

After hiring a candidate, keep them up to speed about their on-the-job performance, no matter how dismal the news may be, Hall said. All employees should be praised for a job well done, but employees also should be told what they need to improve upon, he said. Avoiding the issue of poor performance is only a temporary solution.

“These problems boil up and become so acute and then an employer must reprimand an employee,” Hall said. In extreme cases, an employee may be fired for poor performance without ever being told they were slipping up. When this happens, employees may claim they were fired for personal reasons such as race, gender or religion, he said.

While being “too nice,” some employers even mask the truth in written employee evaluations. “We look at the employee personnel file and we have no documentation showing the employee was not performing well,” Hall said.

Documentation shouldn’t be limited to annual evaluations.

“First of all, everything that goes on between an employer and employee needs to be documented in writing,” said John P. Glenn, a partner with The Haskins Law Firm. Problems are not something to be kept secret, Glenn said. “The employee needs to be given the opportunity to correct the problem.”

One of the most important steps in solving any problem is acknowledging that there is a problem. “Also discussing it (the problem) with the employee may solve the problem,” Jordaan said.

Not having proof of an employee’s weak performance, whether on paper or in e-mails can lead to accusations of discrimination, Hall said. “A lot of employers aren’t good at having things in writing.”

Of former employees who file discrimination cases, only about 20 percent have evidence that their termination was race, religion or gender-related, Hall said. “Most employers win employment discrimination cases.”

For an employer to ensure that his or her company will not be on the losing end of an employment discrimination case, instilling common sense into employment practices goes a long way. “The golden rule is still a good guide,” said Martin Nussbaum, an attorney for Rothgerber Johnson & Lyon LLP.

“Employers need to not be too afraid of legal requirements,” Nussbaum said. “They need to focus first, second and third on how they focus their objectives and missions.” Fretting over every possible legal issue can “freeze” a company’s entrepreneurial spirit, he said.

To aid in focusing on objectives and missions, employers should have employee handbooks available. Employee handbooks are invaluable tools in any office – especially when legal issues crop up, said Chris Ryan, an associate attorney with Holland & Hart LLP.

“When you’re terminating someone it is essential that you be able to link the misconduct back to something that’s in the handbook,” she said. Making an effort to update handbooks will allow a company to weed out outdated material and to guarantee new, pertinent issues are addressed.

When making any employment decision, an employer should ask “How would I like to be treated?” Nussbaum said.

That applies to gender, race and religion.

Employers should “create a gender-neutral environment,” Nussbaum said. This will help limit sexism and sexual harassment. “They got rid of beefcake posters. They policed sexy talk in the workplace and the like,” he said.

While religion in the workplace can be a contentious issue, employers must do all they can to work with their employees to make everyone feel comfortable, Nussbaum said. “If an employer has a Muslim worker who needs to pray 15 minutes five times a day, the employer needs to accommodate that,” he said. “No one should try to create a religion-free zone in the workplace.”

Discussing an employee’s religious needs will allow both parties to reach agreement on an accommodation. “If you do that, 99 percent of the time I don’t think you’re going to have a problem,” Hall said.

The legally protected classes in the United States are gender, race, religion, disability, national origin/ethnicity, union involvement and age if an employee is over 40, Hall said. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on gender, national origin, race, color and religion.

Employers cannot, by law, terminate employees based on any one of the protected classes. “Sexual orientation depends,” Hall said. Cities and counties have the power to make sexual orientation, or height, weight or anything a protected class, he said.

Colorado is an at-will employment state, which means an employer can fire any employee at any time for any reason. Well, that is “except for an illegal reason,” Jordaan said. Illegal reasons would be those stated in Title VII. “The at-will doctrine has been eroded significantly,” she said. “It’s not as strong a doctrine as some employers think.”

Addressing issues as they arise, in any office, helps companies and employees avoid misunderstandings and lawsuits. When poor performance is not addressed, employees will sometimes assume the worst. “Too often, things just simmer under the surface,” Hall said.

- Stephanie.cline@csbj.com