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HR Esq

Delay/Ignore at Your Peril

Devora Lindeman
Contributor: Devora Lindeman
Posted: 01/18/2011

I often see two extremes with my clients—they either want to (1) jump the gun and not take just one more step that would protect their business, or (2) they delay/ignore employment-related situations until it is too late and they are embroiled in a legal situation.

While avoidance is a legitimate method for "handling" problems, it is not generally one that brings positive, productive results. Following are situations HR Managers and business owners should not ignore:

• Letters from governmental agencies. This would seem like a no-brainer. When the government comes knocking, you need to respond. Recently, however, a client sought our help after the client ignored a request from the Department of Labor. An independent contractor had filed for unemployment insurance benefits, and the client had returned the unemployment paperwork saying the person was a contractor, not an employee. When the DOL sent a follow up inquiry regarding the individual’s status, the client ignored it. After all, the individual was a contractor who was not entitled to unemployment benefits, right? Well . . . maybe. And, maybe not.

Whether an individual who provides services for your business is an employee or a contractor is a decision the DOL makes and the DOL may not agree with your assessment of the situation unless it is properly presented to it. A well-drafted response to the initial inquiry with the correct legal standards in mind could potentially have avoided the situation. If you get a letter from a government agency (the EEOC, the DOL, etc.), get the help you need to respond to it promptly.

• Internal employee complaints. If your employee voices dissatisfaction about a work related situation, the concern should be addressed promptly. Ignoring employee harassment, discrimination and retaliation complaints can drag the company into potentially avoidable law suits. Train your managers to take employee complaints seriously and respond appropriately. Too often new clients come to us when a complaint is filed in court—when that lawsuit potentially could have been avoided had the initial employee complaint been promptly addressed.

• Poor performing employees. When you turn a blind eye to poor performing employees you acquiesce to the poor performance. One client tried to tell me how horrible the employee was. When I asked how long she’d been with him? Twenty years. How long had she been a poor performer? Twenty years. It looked to me (and would likely look to a jury) that the performance must not have been all that bad if he’d kept her that long.

Of course, he had no in-house HR person and had absolutely no documentation regarding the poor performance—nor had he spoken to the employee about what she needed to correct. Now he wanted to act, but faced an almost certain legal claim by the employee if he did. All of this could have been avoided had he not avoided the situation and had performance managed this individual properly from the onset of the problems.

A good employment lawyer is a business partner that helps the business increase productivity and prosperity. It is troubling to me when businesses fail to act promptly and end up with costly legal problems that otherwise may never have materialized if they had been dealt with early on. It’s a new year. Take a look at your operations. Is there something you’ve been avoiding/ignoring regarding your employees that needs to be addressed?

Devora Lindeman
Contributor: Devora Lindeman
Posted: 01/18/2011