Employment Law: Deal with Problems Directly

Here are two situations dealers sometimes face. What do you think about the suggested easy solutions?

Situation 1: You hire a sales manager. He wants a monthly income guarantee for three months to develop the business. You are concerned because you want to protect against a claim he has a minimum ninety days employment that would prevent you from replacing him quickly if he does not work out. Your solution: call him a probationary employee. 88343333

Caution: An employee is an employee. Designation as “probationary” does nothing to protect the dealership because a court may find that the guarantee ensured the manager would be employed for ninety days.

What is a better solution? Clarify that the guarantee is only a method of being paid, and use a disclosure in the pay plan concerning the “at will” nature of the manager’s employment: “Manager is an employee at will. Either the employee or the company can terminate employment at any time. This pay plan only states the method by which the employee will be paid. It shall not be considered a contract, or assurance of employment for any specific duration.”

Situation 2: A female employee complains to the controller that her supervisor is asking her out and that she feels sexually harassed. The next day she returns and says she worked things out with the supervisor and nothing more needs to be done. Your solution: drop the matter since the employees worked things out.

Caution: There are several problems with this solution.

  1. The complaint from the employee can be a signal she is not the only one being subjected to this activity. Even though this issue is resolved, this could qualify as a warning if there may be other problems brewing.
  1. This complainant could well contend that she was pressured to drop the complaint, and take legal action later contending that the complaint was notice and you should have followed up for her protection.
  1. If the original complainant’s work performance slacks off, and you take disciplinary action, she might claim retaliation.

So what should you do? Follow through on all steps of your investigation on the complaint even though the complainant said the matter was resolved. Get details about the complaint, interview those with knowledge, decide, take action on the decision, and keep notes in the personnel file of the complaining employee and the supervisor. By doing so, you can determine whether there is a serious issue that could lead to other problems and whether the complainant’s request to drop the matter was voluntary. You can document the steps you took if there are any further complaints by the original complainant or others.

In addition, you must be careful in managing the complaining employee. The most prevalent complaint to the federal Equal Employment Opportunity Commission in 2014 was for retaliation. Recognize that you must carefully consider and document any adverse employment action against an employee who has filed a complaint of discrimination or harassment. If a complaining employee’s work slacks off, there should be adequate warnings, documentation of the deterioration of performance, and documentation of the warnings. Before taking adverse employment action about an employee who previously filed a complaint, ask if you would take action against other employees performing adequately. If you take action, document the action and the reasons for it.