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Mar 2, 2011

By Mark J. Neuberger

Continuing the theme set forth in my earlier post on some guiding principles I have developed to deal with recurring employee-management situations, here are five more practical lessons gleaned from years of practicing labor and employment law.

I call these Neuberger’s Postulates of Employment Law” and here is the rest of my Top 10 list:

6. A “quit” is better than a “fire.”

My case history is full of situations where clients struggle to manage a problem employee. Seeing that the end is near, the employee attempts to resign and, as hard as this is to be believe, the employer throws up road blocks to the resignation. In one case I am familiar with, the HR manager literally followed the employee to the parking lot and persuaded the employee to rescind their resignation.

Why any manager would do such a thing is beyond me, but believe me when I say this, it actually happens. In each of these situations it was obvious the case was headed for litigation. Of course, the employee will likely claim they were “constructively discharged” even if they quit. However, the point to remember is, if you have to defend any employment related lawsuit it’s always easier to defend the employer’s conduct with “but the employee quit” rather than “yes, we fired the employee.”

7. Like fine wine, some employment disputes get better with age.

In the fiscal year ending September 30, 2010, the EEOC announced for the first time in the history of Title VII that retaliation claims form the largest number of charges filed with their agency. It is important to recall the elements of a retaliation claim:

    1. Employee engages in a legally protected activity;
    2. Employee suffers an adverse employment action; and,
    3. There is a casual link between the protected activity and the adverse action.

In the real world, here is how it works: a disruptive, poor performing employee complains about discrimination; because of the complaint, everyone is afraid to take action for fear of a retaliation claim. Alternatively, some testosterone-laden manager explodes, “I don’t care about retaliation, get rid of her now!”

The lesson to remember is that the passage of time breaks the casual link. In other words, allow time to pass before taking the inevitable action. In some federal judicial circuits, the passage of three or four months is sufficient to break the causal chain in a claim of retaliation. If you are fearful of a retaliation claim, sometimes it’s best to decant the situation, let it sit a few months, and then take the action based on legitimate non-discriminatory documented reasons.

8. Don’t touch the help.

As companies expand training and enforcement of anti-harassment policies, I am seeing increasing numbers of allegations of hostile work atmosphere. When fully investigated, often times these situations are disconnects between what one person assumes is normal interpersonal conduct and the other perceives as harassment.

In this day and age, people who touch other people in the workplace, for whatever reason, put themselves at risk. During a recent training program I conducted, a male participant asked, “Why is it okay for a female co-worker to come up to me and start fixing my tie or collar and it is not okay for me to go up to a female co-worker and adjust the way her necklace is laying on her chest?” My answer is that neither is acceptable and each can only lead to further problems.

9. Little things mean a lot.

I represented management in my first collective bargaining session over 30 years ago. That collective bargaining agreement had a provision which provided a meal allowance to anyone who worked more than three hours overtime. The long established practice was that unlike payroll, which was paid by check, the meal allowance was paid in cash. The company’s accountant told us, as part of the negotiations, that we had to eliminate the pay in cash because that’s not how modern business is conducted.

When I raised the issue at the negotiation table, the union president told me this would be something the workers would take a strike over. Of course, I thought he was bluffing.

As the negotiations wound down, the issue of meal allowance remained open and the union insisted they would strike if the practice was changed. In an “off the record” conversation, the union president said to me “Don’t you get it?” I said “Yes, you’re showing your members you can talk strong, but we both know you’re bluffing.”

The president replied “You don’t get it! The workers’ wives (30 years ago the workforce was almost all male) see their paychecks, but they have no idea about the meal money. This is the “mad [read beer] money.” The men will strike over this.” The company relented and I would not be surprised if that company is still paying a meal allowance in cash today.

Another example: the “Doughnut Day Massacre” — A company had a long history of providing free pastries on the first Tuesday of each month, a day affectionately known as “Doughnut Day.” During an economic downturn, the company undertook a series of cutbacks including employee layoffs, all of which were announced on the first Tuesday of the month. Lo and behold, there were no doughnuts that day; the doughnuts were cut out of the budget.

The day lived in infamy as the “Doughnut Day Massacre.” As upset as the remaining workforce was about the layoffs, they were apoplectic about the elimination of the doughnuts. The decision to eliminate doughnuts was such a disruption and had such a negative impact on morale that the company quickly started buying doughnuts again.

The lesson learned from these two examples is that in advance of making decisions, management should have known what was important to its employees, and how what may seem as trivial matters to some can have a major impact on morale.

10. Don’t let bad history repeat itself.

The entire premise of these postulates is to encourage managers to learn from the past. While every HR event is different, in many ways they are the same. Remember that often times, practical actions win over logic and theory.