You’ve got a problem. You care about your employees, you’re patient and accommodating, provide resources, training and latitude for your people to do their jobs and trust in them like family. You don’t have opinions on backgrounds, tastes or sensitivities, you just want them to show up on time, do their job and work in harmony with the rest of the team. You’re not perfect, but you’re well-intentioned, treat others with fairness and expect the same in return. Therein lies the problem. No matter who you are and the bond you believe you have with your employees, at some point, one of them will fail to meet their job duties, violate your company policies and even break the law. At that point, you’re not family, you’re adversaries.
You’ll split for a legitimate reason —but in his or her mind, the story will read: I was wrongfully terminated! Their expertise in labor law will be based on a tweet or post they once read, but there’s a good chance they’ll have a friend who’s a lawyer or will find one off a billboard and spin a story that presents you as nothing short of a greedy, horrible taskmaster who ruined what should have been a dream job. They were ineffective or disruptive, but in their telling, they were great at their job, everybody liked them and you fired them because they complained about your hostile work environment. Their lawyer will commiserate with the victim, your victim—they got into law to expose the likes of you—and set about torturing you over the claim.
In the real world, the employee couldn’t or wouldn’t show up on time or meet job standards or maybe caught stealing, but their lawyer isn’t buying your story. Their opening salvo will be that you’ve violated the law and human decency, and you retaliate against whistleblowers like their client. You’ll be deemed selfish as well as malicious—they’ll claim you don’t allow meal periods or breaks, force work off the clock and or fail to pay overtime—areas where plaintiffs’ lawyers often find traction because many employers don’t understand the legal standard to which they’ll be held. The majority of claims will be bogus, but there’s an industry of plaintiffs’ lawyers willing to make frivolous claims under the guise of “litigation privilege”, hoping to uncover a provable wage/hour violation and bully you and your insurance carrier into a six-figure settlement.
Every fiber of your being will want to broadcast the employee was a bad hire—they called in sick on Mondays and clashed with customers, and you have video that proves they stole another employee’s phone for God’s sake. Your other staff members will be happy to see them gone and even some regular customers will agree it was long overdue. But when you pull the employment file, all you have is a positive review from their first few months on the job when they were still on their best behavior. There’s nothing that says “problem employee” and while you know what you’re looking at on the smoking gun video, it’s not clear to an outsider and the timestamp is off because you forgot to adjust the cameras for daylight savings.
But you trust the system. Wait, what? In the harsh world of employment law, the burden is on you, the employer. The plaintiffs’ lawyers will check your training records, meal and break policies, payroll recordkeeping and look for violations of the labor code. They’ll review documentation about the aggrieved and other similarly situated employees and claim the documents you assembled after-the-fact are contrived or inconclusive. They’ll search public and legal records for claims against you and twist them to support their arguments whether or not those claims were ever found to have merit. Your other employees will think that the suit is nonsense — everyone got lunches, breaks and paychecks and you’re a great employer — but they don’t get to vote. All that matters is what you can prove.
It’s frustrating, but there’s no downside to or accountability for an employee or their counsel making false complaints or filings, bending the truth or distorting facts — perjury charges only show up on TV dramas or Congressional inquiries. On the other hand, your statements, actions and filings will be scrutinized in detail and any inconsistency or oversight will be twisted to support your ex-employee’s claim. The employee will think they’re going to trial for millions of dollars and once you’re exposed for what you are, they’ll be set for life. Their lawyer, however, has no such aspirations — they just want to scare your insurance carrier into a settlement, collect their 30% cut or legal fees and move on to the next shakedown. And your insurance company, however supportive, will just want to limit risk, cut a check and move on. They’ll bake the cost into next year’s premium increase.
The whole process will take two to three years or more, drain your resources and morale and force you to implement tougher enforcement of policies, meal periods and compliance. The collegial relationship you’ve had with your employees will be irrevocably scarred and everyone will be frustrated with the harsher enforcement of policies. And like it or not, you’ll be a lot less trusting of and a lot more jaded toward the system.
If you think the above scenario won’t happen to your company, you best rethink that. If you have more than few employees, it’s impossible to avoid it or insure it away. Nationwide, one in ten firms annually suffers employment-related litigation (one in seven in states like New York and California) and the cost of defending and resolving such claims is hundreds of thousands of dollars and hours of lost productivity and sleep. And the environment is not changing any time soon. Elected policymakers legislate regulatory burdens (aka opportunities for litigation) on employers every year.
The good news is you can mitigate the risk and give yourself peace of mind by building a culture of documentation within your organization. The single best defense you have against an employment related challenge is timely, accurate documentation. If you didn’t document it, it didn’t happen, and again, in today’s world, the burden of proof is on you, the employer. Your workplace will not become an Orwellian dystopia, but if you build a culture of documentation — your staff posts on social media, they know how to document — you’ll build a database of work histories that will help you and your managers make better employment-related decisions and defend against outside challenges.
JobStats cloud-based employment documentation software allows managers to document workplace issues and develop chronological work histories by employee. JobStats is simple to use, accessible from any device and fosters a culture of documentation in the workplace. By implementing JobStats, your staff will build a database of employee work histories, job training, mandatory state/federal training and performance metrics that will reinforce your decision-making, reduce defense and insurance costs and give you and your HR department peace of mind. You’ll still have employment challenges and the associated headaches, but you’ll have a defensible record and be in a better position to defend you, your company and your reputation. Manage with confidence with JobStats.
About the author
Kyle Kirkland is President of Brick HR, Inc., the developer of JobStats documentation software. As owner, President and General Manager of Club One Casino in Fresno, California, Mr. Kirkland has extensive experience managing employees in gaming, food and beverage, facilities, security, administration and managerial positions. He has direct experience in dealing with the challenges California employers face and how to mitigate the related risk. Mr. Kirkland is also the president of the California Gaming Association, a non-profit trade association which represents California cardrooms.
Prior to joining the gaming industry, Mr. Kirkland served as the chairman of Steinway Musical Instruments, the world-renowned musical instrument manufacturer, a position he held for 17 years. Earlier in his career, Mr. Kirkland worked at Bain & Company, an international management consulting firm and Drexel Burnham Lambert, an investment bank specializing in high yield securities. Mr. Kirkland has served on the boards of several public and private companies and non-profit organizations.
Mr. Kirkland holds an A.B. degree from Harvard College magna cum laude in Economics and an MBA degree from the Graduate School of Business at Stanford University.
He can be reached at email@example.com.