Avoiding Employee Problems: Tips For Hospitality Industry Employers
 
October 21, 2004
 
James M. "Jim" Norman- Ft Lauderdale

Being an employer in the hospitality industry is filled with exciting opportunities and wonderful challenges to not only run a profitable enterprise, but also provide employment and advancement opportunities for a broad range of employees.  However, those opportunities also provide the basis for potential legal risks.  Many of the “line” employees in the hospitality industry are not in high paying positions, and come from outside the United States with no or very little understanding of our employment and legal systems.  Compensation and money are constantly of concern.  This concern may be amplified by ideas formed from information from other line employees, family members, television and the Internet.  This can lead to the belief that employers are easy targets for lawsuits.  There is a massive amount of information available that talks about protected categories under federal or state law and workplace discrimination.  Most employers are capable of knowing how to comply with the law, and are motivated to do so for solid business reasons that go right to the employer’s bottom line.  On the other hand, it is easy to see how some employees might interpret what they hear and see to mean that they have a case against their employer.  Employees often do not understand that merely being in a protected class is not sufficient to prove a case, or that treatment they consider unfair is neither discriminatory or unlawful. 

Unfortunately, as we hear from many employers, employees can find a lawyer to represent them against the employer, or they simply proceed without a lawyer.  Even when employees lose their lawsuits, defending against these cases can be costly to any employer and can consume hundreds of hours of employee time that would be much better spent focused on the job rather than on litigation.

Although considering every employee a lawsuit waiting to happen would overburden the hospitality industry beyond belief, certain precautions can help prevent future lawsuits and make it much easier to get the lawsuits that are filed dismissed before trial or settled for less than the cost of defense.  Human resource professionals, managers and supervisors must consistently follow procedures, however, or these precautions will not be worth the paper they are printed on.

Here are 10 suggestions to help avoid employee trouble:

1. Be sure you have a strong and clear written anti-discrimination and anti-harassment policy.  Distribute the policy statement to every employee, and have each employee sign it, with a signed copy placed in each employee’s personnel file.  That anti-harassment policy should cover, in addition to sexual harassment, harassment because of race, national origin, religion, age, disability and every other status protected under federal and state law.  For example, some states or localities also protect against discrimination because of other factors such as marital status and sexual orientation.  The policy should be worded simply enough for all employees to understand.  Consider using versions in other languages tailored to the employee population.

2. Train every management employee on enforcement of the employer’s anti-discrimination and anti-harassment policies.  Keep written records of who attends training sessions.  Train non-management employees on how to report discrimination and harassment.  Train everyone on the policy against retaliation.  Training is generally required by the courts for the employer to mount a successful defense of a claim of discrimination or harassment, and it is worth repeating all training on a regular basis.  All new employee orientations should include training about the employer’s anti-discrimination and anti-harassment policies..

3. Be sure all job descriptions are current and that performance is evaluated regularly against those job descriptions.  That is, be sure you assess performance based on job-related requirements.  Such generalities as “attitude” should be more specifically defined and are irrelevant.  For example, a more objective way to address “attitude” is the way an employee treats co-workers and guests. 

4. Honest evaluations are essential.  Evaluation inflation does not help anyone, least of all the employee who needs to know where he or she stands.  The work place is not Lake Woebegone, and all employees are not “above average.”  Not everyone is an outstanding employee.  Most are average, and some are definitely below average.  A unjustified glowing appraisal is singularly unhelpful and may be used to establish discrimination if you need to terminate employment based on poor performance.  An employee who is not performing up to standard should be told what is needed to achieve standard, how to correct the problem, and how much time he or she has to correct the problem. 

5. Document, document, document!  This is the hardest lesson for managers to learn, but the lack of documentation can leave an employer defenseless.  Managers and supervisors should be trained to document all problems properly.  The problem should be described in concrete language so that anyone can understand what has happened.  The employee should receive a copy of the write-up and be asked to sign a copy for the file, indicating receipt and the opportunity to discuss the contents.  The employee should be told that signing the write-up is not an indication of agreement and the employee should be given the opportunity to write a rebuttal to be included in the file.  There is then no possibility of an employee successfully claiming not to have received the write-up.

6. If you have a new employee who appears to be a problem very early in his or her employment, terminate the employment before the end of the usual probationary or introductory period.  There is no need to wait until the 90th day when it is obvious from the 30th day that it is not working out.  Hoping for real improvement and extending the probationary period is usually asking for trouble. 

7. When there is a recommendation for discipline, be sure you can articulate the reason in writing before that discipline is imposed.  If not, perhaps there is inadequate justification for the recommendation.  Also be sure the discipline has been consistently applied without regard to race, gender, age, national origin, religion, disability or any other protected class.

8. Before imposing any serious discipline, especially suspension or termination, consult human resources professionals and/or legal counsel.  They can help facilitate the process and make sure there is consistency.  It is also useful to have someone from human resources participate in imposing the discipline.

9. Never say “I’m sorry” when terminating employment.  The employee will interpret that phrase as an admission of unfair treatment.  Help the employee retain dignity by wishing him or her well and saying that, although this situation did not work out, he or she can perhaps find a situation more fitting.

10. Be totally consistent in your reason for terminating an employee.  Tell the employee the precise truth, put the same reason on the separation notice form used in your local jurisdiction, and tell the EEOC the same thing if a charge is filed.  Inconsistency almost always leads to trouble if there is litigation, as it can be used to show that your reason is merely a pretext for discrimination or wrongful termination.  Not telling the employee the reason for the termination is an open invitation for that employee to visit a lawyer, a visit which almost always leads to litigation or threats of litigation.

11. Treat every employee fairly and with respect at all times.  A happy employee is far less likely to sue than one who is chronically disgruntled.  The employee who blames all of his or her problems on someone else is the employee who will not take responsibility for his or her own actions.  An hour spent interviewing an employee before hiring can save countless problems later on. 

12. Don’t ignore a problem and hope it will just go away.  It won’t.  It will almost certainly come back to haunt you at some point.  And don’t try to goad an employee into quitting.  That practice is unfair, is perceived to be unfair, and will ultimately boomerang on the employer.  If a case gets to a jury, that jury will be far more concerned with the perception of fairness than with what the judge instructs it as to the law.  If the employer’s version of the facts do not pass the “red face” test, the jury will find liability most of the time.

Thus, the perception of fairness is all-important in the work place.  Good communication with employees is the key to avoiding problems, as is honesty in that communication.   Following these tips will not guarantee an end to all employee-generated work place problems, but it will help decrease the number and the ultimate cost.  Following these tips will also help create a more productive work place, and help both the employee and the employer meet their goals.

For more information, e-mail Jim Norman at jim.norman@hklaw.com, respectively, or call toll free, 1-888-688-8500.