Over the past few months, several practice managers and owners have told me stories about their latest employee write ups. I’m unsure who introduced the workplace-process of formalizing our employee concerns on paper, but I think it’s high time that someone challenges a status quo that is too often demoralizing, ineffective and onerous. Here it goes:
Labor Laws Are Not As Extensive As You Think
Federal law ensures that employees are paid and worked fairly; that they’re safe; that medical expenses for on-the-job injuries are paid; that whistle blowers, veterans, and union members are protected; that employees aren’t forced to take lie detector tests; and that families have the chance to regroup in times of medical crisis (FMLA). There are a few other laws, but the ones mentioned above are the major ones. Absent from the list are protection for the tardy, the rude, the insubordinate, the mean, the lazy, and the ‘I just don’t like yous’. If you have a member of this group on your team, termination is possible without so much as a gum wrapper for a paper trail.
EEOC however is a Biggie
In addition to the above protections, federal law looks out for employees who are old, disabled, compensated unequally (with respect to a protected class), genetically handicapped, harassed (with respect to a protected class), not born in the US, pregnant, racially different, religiously different, retaliated against (with respect to whistle blowing), whose gender is disliked, and who feel like they have been sexually harassed. It’s extremely important to note that if an employee has a beef with you and they can make an argument that your conduct was predicated by their inclusion in one of the above groups, they can file a case against your business with the EEOC. Mind, that no amount of write-ups will prevent a case from going before the EEOC if the complaining party is included in one of the above-mentioned protected classes and feels as though they have a case (click here for a review of the EEOC file charging process).
No Law Requires You to Document Employee Interaction
While documentation of all employee interaction can be used productively, it is not necessary that this documentation be formally presented to the employee for their review or their signature. These ‘write ups’ may prove that the employer made their concern known, but it does not mean that the employee agrees, nor does it excuse the employer of any wrong doing or of breaking any labor laws.
Creating a ‘Paper Trail’ Does Not Prevent You from Paying Unemployment
The decision to pay unemployment benefits is made by the your state’s unemployment office, not by any law. Every case is handled individually and there are a multitude of examples of employers who were forced to pay unemployment benefits to employees irrespective of the amount of ‘write ups’ they had on file OR how the employee left the company’s employment (click here for an excellent expanded discussion on this topic) I can think of one first hand example of an employee telling an owner to ‘<expletive> off’ before walking out on their job. This employee filed for unemployment arguing that the owner was so awful to work for that they had no alternative but to quit. The unemployment office agreed and the employee received their compensation (despite the fact that the employer has been a successful business owner and upstanding member of the community for more than three decades).
‘Write Ups’ Don’t Change People
Take a moment and consider the ‘write ups’ you have filed: tardiness, insubordination, workplace errors…in retrospect, do you honestly believe they were successful at changing the offending person’s behavior? Our first priority as employers is to hire people who are devoted to our Mission. With that accomplished, our second priority is to cultivate the strengths and minimize the weaknesses in each of these employees to facilitate their successful participation in our Mission goals. This isn’t accomplished by threats, but by empathetic discussion, an objective exploration of the employee’s perspective, and a review of the work place systems in which they are asked to participate.
Yes, I get it. A Labor Law Dispute Is a BIG DEAL
I’m not so naïve to dismiss the enormous impact of an employment lawsuit against a manager or an employer. I’ll also admit the plain truth that some employees can be downright jerks and take a perfectly great small business operation and mess it up merely for their selfish gain. I do however take a stand against employee management whose only underpinnings are cover-your-rear, written admonitions and fear. Most employee lawsuits begin as a feeling by the employee that they have been mistreated and misunderstood. If you want to ‘write something up’, try your hand at writing and building proactive hiring protocols; work systems that optimally integrate everyone’s actions; job descriptions that effectively make clear our expectations; and review processes that effect change. This is a heck-of-a better way to spend your time as a leader than regularly reminding people in writing that you have the power to terminate them. Is it a method that leaves you open to risk? Yes. But that potential is not just for exposure, but success. The amazing business that you will be will not be predicated on your fear of employee retaliation, but by building management systems that help all of your employees be the very best they can ultimately be.