Help Avoid Employee Legal Actions- 14 tips
Employees have all kinds of legal protections. And employers have all kinds of legal obligations in dealing with staff members. However, from time-to-time, employers are confronted with unjustified claims and actions from employees. One of the most common can be claims for unemployment insurance benefits by employees who do not legally qualify for them.
Other unjustified employee actions can range from baseless discrimination claims, to baseless wrongful discharge claims.
Here are 14 steps employers, managers and supervisors can take to lessen the chances employees can succeed in unwarranted actions against employers:
1. Know what DOES and what DOES NOT disqualify an employee from obtaining unemployment insurance benefits. (NOTE: Points made in this discussion about unemployment insurance generally apply throughout the United States. However, state laws and state legal decisions involving unemployment vary in some matters. Therefore, know your state’s laws and rules involving unemployment to be sure your actions comply with your state’s laws and regulations.)
2. Protest unjustified unemployment claims within the time allowed by your state law. The burden of denying unemployment benefits to an employee who does not qualify for them is on the employer.
Protest an unemployment claim, or an employee drawing unemployment payments, because of one or more of these factors: The employee voluntarily quit. The employee engaged in misconduct on the job. The employee has refused a suitable job offer or refused a recall to work. The employee has set unrealistic limitations on wages, hours, or location of a job. The employee is on an approved leave of absence at his or her own request.
3. Do not create conditions and put demands on an employee which encourages the employee to quit, and then expect the employee will be denied unemployment benefits. This kind of activity by an employer is called a constructive discharge. It is seen by unemployment officers as a termination without cause attributable to the employee. In effect, the employee is able to demonstrate that he or she was forced by the employer to quit.
4. If you intend to terminate employees for unacceptable behavior, and expect to prevent them from qualifying for unemployment benefits and also expect to defend your business or organization if a wrongful discharge action is initiated, be sure to inform all employees of your workplace behavior standards. Put your behavior standards in writing, in your employee handbook. Have all employees sign and date a statement acknowledging they have read the policies in the handbook, understand them, and agree to them.
5. Keep a file, with written records, for each employee, even if you have only one employee. Factual documentation about an employee’s performance and behavior in the workplace is essential in defending against unjustified unemployment claims and other employee-initiated legal actions against an employer. Documentation must be work-related.
6. Use objective, non-discriminatory hiring procedures. For example: You can ask applicants about former employers, about their previous work records, and about how the applicant was separated from former employment. But your specific questions must not have the effect of “screening out” persons because of their race, color, or other legally protected class or feature (such as national origin, physical handicap, age, sex, or religion).
7. Include in your job application form specific questions special to your business. Examples: Will you agree to work on any shift as assigned? Will you work on weekends or holidays, if required?
8. Include in your job application form a statement from the applicant authorizing investigation of all information and answers on the application. Also include a statement the applicant understands misrepresentation or omission of facts called for, pertaining to serious matters involving the work situation, is cause for dismissal.
9. Include a “work abandonment” or “job abandonment” rule in your policies. Such a rule means when an employee is absent from work without notifying the employer, the employer concludes the employee has voluntarily quit the job. Job abandonment can be grounds for denial of unemployment benefits. When an employee abandons his or her job, immediately send a Notice of Separation Form to the unemployment agency and note on the form the employee quit voluntarily.
An example of a job abandonment rule: All absences from the employee’s work must be approved by the employee’s supervisor or acting supervisor, unless otherwise allowed in the leave and time-off policies. Unless the absence is due to an emergency, the employee must obtain approval for an absence (including vacation and personal holidays) prior to the absence. Understand an unapproved absence will result in discipline, up to and including termination. Also understand an absence of X consecutive work hours without notifying the supervisor or acting supervisor is job abandonment and is a voluntary termination of employment.
10. Before terminating an employee, consider all the possible alternatives and all the possible consequences. This means: Don’t terminate an employee in haste, don’t terminate an employee in an emotional moment or a moment of anger. Before terminating an employee, explore answers to questions like these: Why has the employee failed? Is part of the failure the supervisor’s fault? Management’s fault? The company’s fault? Have we helped the employee overcome problems? Have we praised or complimented the employee when he or she did well? Is a replacement likely to do better? Has the employee shown interest in another area of employment with us? Could we transfer the employee to other work?
11. When an employee leaves employment, ask the employee for a letter of resignation that states the reasons for leaving. In addition to this, or as an alternative, do a separation of employment interview with departing employees. Prepare written questions in advance. Ask departing employees to share both their positive and negative employment experiences and their reasons for leaving. Have employees sign and date the statements.
12. In serious cases of misconduct involving possible theft or other criminal action, do NOT terminate the employee for theft or for a cause which is a criminal action. Instead, terminate the employee for the unacceptable action or behavior without describing it in terms which imply a crime. Example: Have a work rule requiring mechanics to return all tools to a designated place at the end of the work period. If a mechanic fails to account for all tools at the end of the work period, the employee can be disciplined or terminated for violating the company rule (without any mention of theft).
13. Establish responsibility for responding to notices of unemployment claims and other actions initiated by employees. Assign at least one employee with the responsibility for watching over all matters pertaining to these matters. Also appoint a back-up person or assistant to take on this responsibility when the person with primary responsibility is away. This will prevent the failure of responding on time to notices of unemployment claims and other employee-initiated actions.
14. Beware of the danger of an employee quitting (or of an employee terminated for cause) claiming the workplace was unsafe or unhealthy. The employee can send OSHA into your workplace in hopes of establishing proof of his or her claim. To protect against such charges, keep all safety and OSHA inspection records. Have an established policy stating an employee is to bring to management’s attention, immediately, any knowledge of unsafe or unhealthy conditions.
[NOTE: Information and guidance in this article is intended to provide accurate and helpful information on the subjects covered. It is not intended to provide a legal service for readers’ individual needs. For legal guidance in your specific situations, always consult with an attorney who is familiar with employment law and labor issue.] Brought to you by ManagedPAY 11.2020