By Richard I. Lehr Esq.

It’s not too late for New Year’s resolutions. Consider these to enhance your workplace culture and reduce the risk of employee issues or claims:

1. Make a new hire’s first 48 hours the most critical time to retain the employee. Employees know within the first few weeks of a new job whether they will remain or quit. Make a good first impression. Even before the employee begins to work, call the new hire at home to tell her/him how you’re looking forward to working with them. Exchange cell phone numbers. Ask what you can do to make their transition into your workforce as smooth as possible.
2. Don’t let workplace culture disrupters continue due to concern about who will you find to replace them. “Stinkin’ thinkin’ ” can make work unpleasant for other employees and ultimately affect your customers. When an employee who may otherwise do a “good job” is a cultural risk, counsel and if the employee ultimately does not change, move to termination.
3. Document facts, not opinions. When counseling or disciplining an employee, confirm your actions in a fact-based document or email. Why is documentation so important?  It reduces the risk of a misunderstanding – you avoid “he said, she said.”  It also reinforces to the employee what is expected. Finally, it will help avoid/defend a legal claim from the employee.
4. Train employees regarding your company’s policies prohibiting harassment, discrimination, and retaliation. Harassment is particularly important for a retailer to review, as an employee’s right to be free of harassment includes the behavior of customers and vendors. A recent client had a customer make a comment to an employee about her size – yes, she was considerably overweight. When it was reported to the site leader, he followed up with the customer regarding that comment and expectations for the customer’s behavior going forward. In some cases, the customer is not always right. In others, the customer is not always the customer.
5. Before you terminate an employee, ask yourself: Did the employee know termination may occur? Of course, there are circumstances, such as theft, when termination occurs immediately. Where the reason for termination is not a “dramatic incident,” be sure the employee knows the job is at risk. Surprise terminations may cause surprise litigation.
6. Review how you classify employees as exempt from minimum wage and overtime. In retail, this most often involves managers. Be sure your managers and other exempt employees meet the legal requirements for exempt status. Those requirements include salary minimums and job duties.
7. Update the informational posters required by state and federal laws and regulations. For example, the Equal Employment Opportunity Commission recently revised its poster. Find this online at EEOC.gov.
8. Remember an employee does not have to ask for leave under the Family and Medical Leave Act – it’s up to you to designate the leave. Also, a workers’ comp injury may qualify as a serious health condition under the FMLA and if it is, do not wait to designate the time off for the injury as FML.
9. Review with employees your company’s social media policy. An employer has the right to consider what an employee posts on social media. Some posts may be protected legally, but trashing the employer is rarely protected. You have the right to consider what employees do 24/7 and should do so.
10. Finally, promote a culture of workforce engagement. The No. 1 factor affecting whether an employee remains is the culture; it’s not pay. Seek employee opinions, if possible. Ask employees for solutions. Make employees participants in the workplace, rather than spectators.

Richard Lehr is a founding partner with Lehr Middlebrooks Vreeland & Thompson PC.

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