Michele Harmon
Remember, Common Sense by Thomas Paine, 1776: “Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one.”
March 2022: The past is the past. Let it go, for now. Be prepared for the rest of the year and what is to come concerning employment regulations.
The NLRB General Counsel, Jennifer A. Abruzzo, released a memorandum in August of 2021 laying out her agenda. She wants to revisit what the Trump-appointed board did while in charge. The Trump board’s interpretation of laws and rules was kinder to employers. Ms. Abruzzo is concerned about the Trump era’s doctrinal shifts. Those so-called shifts involved how cases were handled and involved employee handbook rules, as well as confidentiality provisions of separation agreements. They involved definitions of the scope of protected concerted activity, union access, and jurisdiction over religious institutions. The Department of Labor (DOL) withdrew Trump error changes to an Independent Contractor (IC) definition, May of 2021. It is just the beginning of what is to come.
Let’s start with ICs. Here are some characteristics the United States Supreme Court looks at when determining IC status. You can also visit the U.S. Department of Labor (DOL) website to review WHD’s Fact Sheet #13. We are back to rules made in 2008. https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship
- The extent to which the services rendered are an integral part of the principal’s business.
- The permanency of the relationship.
- The amount of the alleged contractor’s investment in facilities and equipment.
- The nature and degree of control by the principal.
- The alleged contractor’s opportunities for profit and loss.
- The amount of initiative, judgment, or foresight in open market competition with others is required for the success of the claimed independent contractor.
Do not give the IC an email address, business cards, a vehicle to use, an employee ID, or a computer. The IC tells you when they can work and not the employer.
Next, revise your employee handbook and progressive discipline documents and get your employees to sign a receipt for the employee handbook. I am not a fan of sharing your progressive discipline document with anyone other than your managers unless requested by the Texas Workforce Commission (TWC) during an unemployment claim hearing.
Critical areas of any good handbook are Employment at Will, Equal Opportunity and Commitment to Diversity, Conflicts of Interest and Confidentiality, Employment Relationship, Workplace Safety, Workplace Guidelines, Time Off and Leaves of Absence, Employee Benefits, Employee Handbook Acknowledgement and Receipt, and the Employee Acknowledgement and Receipt of your Harassment Policy.
Rules need to be fair and not pertain to a specific group. If females can wear earrings, so can males or whatever pronoun the individual uses. Ask yourself, what difference does it make? Safety is first and foremost for your employees. Some employers still care about visible tattoos. What difference does it make?
A good Progressive Discipline Policy is not punitive. It is first and foremost designed to coach your weaker employees and last to terminate them. Divide your levels of infractions into three groups. Level One is your mild infractions, and Level Three is your automatic terminations. Provide your managers with professional development at least yearly on the document and provide them with sample letters to coach employees when written documentation is required. Make sure that managers write down all their interactions with their employees. That includes the good and the bad. When a manager says that Johnny has to go, your HR manager will ask to see the documentation.
Texas is an At-Will state, but you cannot terminate someone if it violates any law, and you will pay unemployment for most terminations unless you can prove the employee violated policy. Your policies are in the Employee Handbook and the Safety Handbook as a general rule. Remember, if it is not in writing, dated, and signed, it often is not enforceable from both the side of the employer and the employee.
Policies cannot consider every possible behavior, but most employee issues pertain to attendance, performance, and conduct. Consider when a supervisor can act independently and when he needs his boss’s approval. When does Human Resources (HR) need to get involved? What is HR’s role—to be advised of pending discipline or approve it? Does there have to be a witness present during discipline/coaching or termination meetings, and how many different discipline/coaching opportunities can an employee receive before termination?
Legally, your progressive discipline policy must have a disclaimer stating that the policy does not constitute a contract and that all employees are considered employees at will. Otherwise, an employee may argue that a written progressive discipline policy is a contract. If the employer does not follow it 100 percent of the time, the employee may sue their employer for breach of contract. Lawsuits cost money, win or lose.
I am not recommending you coach every employee, but in the world of the Great Resignation, employers may need to spend a little more time with an employee before terminating them. HR saves money for the organization by helping your managers coach employees into better ones, thus preventing turnover. Turnover costs companies’ money in posting, recruiting, interviewing, verifying, and onboarding, as well as just the cost of having employees passing in and out of the door. Most recruiting firms charge a minimum of 30 percent of the first year’s salary of an employee that they recruit for you. Have you paid the price of a temporary employee recently?
Employers need good employees that show up and do the work well. What is the employer’s legitimate reason for not allowing an earring or a tattoo? Do you have all your vacant positions filled? Remember, the main thing is the main thing.
Please do not spend too much time preventing employees from doing a protected concerted activity, like discussing their wages. Get the part out of the handbook stating employees cannot talk about wages, because they can. Never discipline an employee for discussing salaries. They can also discuss salaries in the company’s email. Let it go no matter how much this bothers the employer.
Get busy and set salary pay grades, and standards. You cannot give a raise to your favorite employee or throw money at someone you are afraid of losing without throwing the same money at the other employees in the same job without getting some grumbling. If during COVID, you docked some employees’ pay and not all employees’ pay for absences, you may have made a mistake. As the owner, you can do what you see fit to run a profitable company until that first complaint to the DOL. Legal fees in our area for employment attorneys are between $300 and $400 an hour. The government has staff attorneys.
Employers need a great HR professional on staff and an employment attorney on a retainer. The Society of Human Resource Management (SHRM) and the Texas Workforce Commission (TWC) have a sample handbook for getting you started, and documents to use that are legally compliant in Texas. SHRM sample documents will help you concerning other states.
Your attorney should draw up separation agreements that come with or without confidentiality agreements. It is a legal document and treats employees you let go pretty much the same. What is your POLICY for severance? Employers cannot treat people differently as a general rule. If you have a non-disclosure policy and non-compete agreements with employees, revisit what they are because the NLRB may do it for you. Get ahead of the problem and do not wait for the federal government to come knocking on your door.
In Texas, we do not currently have much union activity, but we may see more about jurisdiction over religious institutions in the future.
SHRM and TWC are great resources, and there are also books you can buy to assist you. One is 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination, 3rd Edition, by Paul Falcone. Another book is Employee Performance Handbook, The: Smart Strategies for Coaching Employees, 3rd Edition, by Margie Mader-Clark and Lisa Guerin.
In April, I will discuss more about At-Will employees, dos and don’ts regarding what to say and not say to employees, and some critical information about due process.
“Your employees are the heart of your organization.” Dr. Michele Harmon is a Human Resource professional, supporting clients in Texas and New Mexico that range in size from five to more than 3,000 employees. Email: micheleharmon1@gmail.com