Coyote Blog

Here is a great link page to tax and employment related agencies in the 50 states.  And this is a good link page pointing to the text of labor law from all 50 states.  This is particularly useful if you do business in multiple states or you are considering growth into a  new state.  Thanks to George's Employment Blawg for the link.

Yesterday I mentioned employment at will in this post about police officers who were fired for assaulting a handcuffed man and who successfully sued for wrongful termination.

Via George's Employment Blawg comes this article on employment at will and things a small business should consider to reduce the possibility that fired employees will sue:

Here's where things get tricky. In between employment at will and the law is a whole mess of claims, counterclaims, lawsuits, disputations and confusion. It's enough to make anybody scratch their head.

We have had several instances where employees have threatened legal action over termination.  I have observed at least three reasons for this:

• Employees sometimes have a skewed view of the termination process, thinking that a company must hold to some kind of courtroom "beyond a reasonable doubt" standard in amassing reasons for termination.
• The most inept employees never seem to know that they are inept
• Some employees are far more adept at working the system than they are at their jobs.

We do several things to help make things go smoother:

• Unless the violation was outrageous, where we fire on the spot, we try to give employees written warnings and coaching before they get terminated
• Every new employee signs a 60/90 day probationary period letter.  If there are problems, they almost always occur in the probation period -- ie they turn up quickly -- and the probationary period gives us more leeway to quickly terminate.  Update:  This article says why this policy can be a mistake, or at least you have to be careful with it.  This is less of a problem for us since most of our employees only work a 5 month season anyway.
• We don't give references.  I have said that this makes me feel guilty, but negative references about fired employees are a big source of litigation, and frankly, I am sorry to admit, the treat of wrongful termination suit is greatly reduced if the ex-employee finds a good job somewhere else.  Kind of the business version of hot potato.
• Being a seasonal business saves us.  For many employee problems, we limp along until the end of the season when we can terminate the person for lack of work, then we make sure not to rehire them in the spring.

Update: Via Overlawyered, this story in the New York Post (gotta love the headlines) about a teacher fired 17 years ago and still filing suits:

But the Clifton, N.J., instructor never got over it. Instead, he has filed 15 lawsuits in Manhattan federal court and three others in Brooklyn and New Jersey courts, seeking reinstatement and millions of dollars in damages.

Each lawsuit has been tossed out as meritless. But a defiant Malley hasn't gotten the message or doesn't care.

George's Employment Blawg has a roundup of a lot of good HR-related blog posts.

It seems like a huge percentage of the people we fire for cause, even after warnings and write-ups, etc, immediately threaten to sue us or report us to the Department of Labor or both.  Several times a year, I get contacted by an employee's lawyer, though generally nothing comes of it except wasting a lot of my time.  Ditto the Department of Labor.  According to George's Employment Blawg, we are not alone:

In many Federal district courts, employment-related litigation represents 50% or more of all court filings, and approximately 98% of lawsuits are resolved outside of court.

Small businesses (i.e., businesses with fewer than 50 employees) are not exempt either. This newsletter notes that it is not uncommon for such businesses to have 3 or 4 claims of employment discrimination annually!

In many cases, I think the need to do this is psychological - a kind of face saving to convince themselves that their job failure was due to someone else's shortcomings rather than their own.  This article has some more advice on terminations to help cut down on suits.

Beyond this explanation, there are also people out there who want to deal with all problems through litigation.  I have had people send lawyers after the company when they never once brought their concerns to a manager -- they just went straight to a lawyer, either because that is the modern way or because they are looking for an opportunity for an easy pay-off.

Something I would love to see, but will never happen, is a list of "serial litigators" to avoid.  I know a couple of people tried this but got shut down.  Too bad.  We had one such person seek employment at one of our establishments.  This is all this person does for a "living" - seek employment, show up at the job interview limping with a cane, and then suing people for discrimination if he is not hired.  Apparently this person has nearly a hundred different lawsuits going. 

As with any labor law or legal liability issue, there are probably more ways to trip up than you ever imagined.  This article at Faegre.com, which I found via George's Employment Blawg, has a nice summary of key issues in five categories.

Because the vast majority of our employees are over 70, and a number of them have disabilities, we have to be very careful in hiring.  Many of our jobs can be physically challenging, and dangerous to perform with some disabilities, so we have to take care to make sure an employee understands the work and that we mutually agree they can do it safely. 

One related area that I am not sure has been tested regards our corporate insurers.  Increasingly, insurers, particularly for our corporate vehicle policies, are refusing to insure over-70 drivers without some kind of letter from a doctor that they are capable of driving safely.  As you can imagine, doctors face liability if they put in writing the employee can drive safely (so the doctor might be liable if there is an accident) or if they write that the employee can't drive safely (so the doctor might be liable for effectively denying the employee insurance, or even a job).  As a  result, doctors are reluctant to produce such letters. 

It has not come up yet, but what happens if one of my employees is uninsurable for driving, and driving the company vehicle is an essential part of their job?  Do I face an ADA case for discharging them?  What choice would I have in that case?

We also have very severe challenges with off-duty behavior.  Most all of our employees live on the job site (i.e. the campground managers live in the campground).  So, off-duty behavior occurs on the job site.  Until I had this company, I always said that I did not care what an employee did on her own hours at home - but now, what happens on the employee's own time occurs in front of my customers.

We continue to walk a fine line on this.  To date, we have told employees that even if they are not on the clock, if they are wearing our uniform or verbally representing themself as a company employee, they are subject to on-the-job behavior rules.  Once the uniform is off and they are just "Joe", and not "the manager", they are free to do as they please, though they are still bound both by federal and state laws as well as campground rules. 

George's Employment Blawg has a nice roundup of what folks might expect in the way of changing labor law and employment regulation from a second Bush term.  As I posted below, I do think that the Bush administration has a pent-up backlog of domestic policy that it wants to tackle.

Just added George's Employment Blawg to my blogroll. As a small business, the biggest shock has been dealing with employment related issues (working for large corporations, this stuff was all invisible to the average general manager - huge departments of HR people just sortof took care of it).

I like what I have seen of this site, and its got some other useful links in the blog roll. It is written from the perspective of the employer (which is actually unusual for labor law sites - most are run by lawyers who represent workers and are mostly instruction manuals on extracting more money from businesses).