An employee, alleging he was fired for being Canadian, took his employer to the Maine Human Rights Commission to contest his dismissal. The case fell flat when the employer produced a file that documented persistent and well-communicated short-comings in the employee’s job performance. The allegation really lost steam, though, when it also was revealed that the employer, himself, was a Canadian.
At the 2104 Annual Employment Practices briefing, hosted by Pro Search and Clark Insurance, featuring Gregg Frame of Taylor, McCormack and Frame, a variety of cases were used to illustrate practical approaches to successful personnel management.
What does this have to do with the real estate development? Activity in the sector has been growing as have new hires. Too often, employers get so focused on their business (a pending deal) that employee management can slip. It also is a business that is prone to lay-offs when hard times arrive.
That’s why Frame opened his remarks by admonishing his audience that Maine’s employment-at-will statute comes with a big “EXCEPT….” disclaimer. The exceptions are that if an employee falls into a protected class, employers cannot simply act with impunity – they need to have a sound and well-documented business reason for their actions. To illustrate his point, Frame polled the large room of participants and determined that everyone fell into some protected class whether due to age, gender, nationality, religion, sexual orientation, etc.
The laws are in place for a good reason. Employees should be judged on performance and not for characteristics over which they have no control.
Employees who take their employer to the Maine Human Rights Commission often do so because their termination or disciplinary action has come as a surprise. “I’ve always had good reviews!” “Everyone does exactly what you’ve singled me out for.” “Hey, you’re picking on me because I’m (fill in the blank of a protected class).”
Where employers get themselves in trouble is when they or a supervisor have not been consistent and clear about the employee’s job performance or the financial condition of the company in the case of potential layoffs.
Frame offered a number of steps that can keep both employees and employers out of conflict:
1) Review and deliver an employee handbook that clearly states job performance expectations: showing up for work, absences, vacation time, harassment prohibitions, reporting requirements, etc.
2) Post all required workplace notices whether there is one employee or one hundred. It's helpful to employees and regulators see it as an indicator of employer responsibility.
3) Have employees conduct a self-assessment periodically to help determine their self-perception versus job performance expectations.
4) Be sure all supervisors are regularly trained and understand that ignoring prohibited workplace behavior is unacceptable (e.g. bullying, harassment, substance abuse, etc.)
5) Use annual performance reviews to also review the employee handbook. It eliminates someone saying, “I’ve never heard that before.”
6) Address unacceptable behavior quickly with an objective of improving performance. Not only will it keep people on track but it will let other employees know you manage consistently and impartially.
7) Be sure that employees sign that they have read and understood the employee handbook and also any disciplinary document that ends up in their file.
In the case of termination, if the decision is final, make the meeting brief and do it in the company of a third party such as a supervisor or other staff member. Frame said the third party should not speak but rather simply be present and taking notes. Should anyone fear a violent reaction to a dismissal, requesting a police presence is a good idea. Safety comes first.
Frame estimated that defending an allegation taken to the Maine Human Rights Commission would cost between $5,000 and $20,000 in legal fees. If taken to court, legal fees can range from $20,000 to $60,000 not including any financial judgments that may be rendered. Those costs can be greatly reduced by solid documentation and fair employment practices.
Gratefully, there is insurance coverage known as Employment Practices Liability Insurance. A discussion with us will help determine the extent of coverage that is best for the employer.
Finally, Frame said there are occasions when he has advised clients to simply pay up when their mismanagement is irrefutable. Claiming one’s actions are justified simply because the employee is considered a horse’s rear end just doesn’t fly. Worse yet, if the employer has in fact discriminated against the employee, the law provides a justifiable and reasonable remedy to protect people from abuse and capricious decisions.