Since 1977, Kirschenbaum & Kirschenbaum, has provided the highest quality legal advice and services, whether litigous or transactional.
November 14, 2013
I probably speak for many of your clients when I say that it is getting harder to find competent workers who care about their jobs, co-workers and doing it right. I don’t want to have a revolving door in my office because every time I take on someone new, I have to train them. I think I am a reasonable man. I treat my workers with courtesy. I am very frustrated. Do you have any suggestions?
I have asked Judge Ruth Kraft, Chair of our Employment Law department at K&K to respond, and Judge Kraft has provided the following:
Dear FXC: I regularly hear this lament from clients. It may be a sign of the times and Generations X and Y are certainly more indulged than we were back in the day. I definitely think that there is more of a sense of entitlement on the part of workers but younger folks may take exception to that generalization.
It is very important to do the following:
SCREEN YOUR WORKERS WELL: If someone leaves your employ precipitously, of course you want to fill the position asap. However, be judicious. Contact references, verify academic credentials and use an outside company to conduct background checks. Just this week, I received a call from a client who had hired someone with access to a debit card and financial information without doing this. Subsequently, the employer learned that this worker has a gambling problem and enormous credit card debt. A recipe for embezzlement? I certainly think so. Doing the homework upfront will save you a great deal of grief in the long run.
TRAIN YOUR WORKERS WELL: There are two elements of training. One involves creating and implementing a progressive program to inculcate the worker with your corporate culture as well as the elements of the job description. The second element of training is to establish guidelines, rules, protocols, etc. and to educate your employees on your expectations. If you don’t tell them, how should they know the minimum standard you expect them to achieve? What is intuitively obvious to you may not be clear to a neophyte in your organization. Spell it out in writing.
DISCIPLINE YOUR WORKERS APPROPRIATELY: If you are dissatisfied with job performance, don’t sulk or seethe. It isn’t productive and will set a negative tone in the workplace. Create a program of progressive discipline or, in the latest HR parlance, constructive action. Don’t wait for a quarterly review, although you should have regularly scheduled performance evaluations. When an incident occurs or if an employee doesn’t met your reasonable standards, address it as soon as possible in a meeting and document it in writing. This will build a paper trail to support a potential discharge at a later date. Also, if a worker outperforms, don’t hesitate to put a commendation in her file. It may not be the raise you’d like to give but can’t afford right now, but it will do wonders for morale.
KNOW WHEN IT IS TIME TO PART WAYS: Keeping someone on the books who is oppositional, unproductive or irresponsible does not serve your company’s interest and can negatively affect co-workers as well as your bottom line. Be realistic and reasonable but recognize that sometimes the best thing you can do for other stakeholders is to say goodbye and good luck. For many employers, this is one of the most difficult things to do.
KNOW HOW TO PART WAYS: If you haven’t already listened to my webinar on how to discharge employees, please do so. For specific recommendations on how to lay a foundation for a guilt-free discharge, call me to schedule a brief telephone consultation. An objective evaluation and advice as to the process, timing and documentation has saved my clients lots of sleep and money. You may wish to consider severance payments for long-term employees. Additionally, many employers may costly mistakes in terms of what is called “wage theft” by attempting to make unlawful deductions from the final paycheck. Remember that, once discharged, a former employee has absolutely no disincentive against reporting you to the Department of Labor and federal regulatory agencies for violations of the labor law.
AFTER THE SEPARATION: You must issue the final paycheck when due and not withhold it. Expect a questionnaire from the Department of Labor. You must complete it immediately and accurately. Any inaccuracies will be held against you and will facilitate granting of unemployment insurance benefits. If you haven’t already sought legal counsel prior to the discharge, a 15 minute review of the questionnaire before submission can save you thousands of dollars. Without a clear and concise summary, including the key phrases that the Department is looking for, you may find yourself cooling your heels at the Unemployment Insurance Appeal Board on several occasions—on the defensive.
FOR ASSISTANCE at any point in the process of hiring, training, disciplining or discharging employees, contact Ruth at (516) 747-6700 ext. 326 or at RKraft@Kirschenbaumesq.com or contact Jennifer at (516) 747-6700 ext. 302 or at Jennifer@Kirschenbaumesq.com.