Employers Should Have a 'Bill of Rights'
Do employers have actual rights? Laws covering the workplace typically grant employees rights and employers responsibilities. But, shouldn't employers have rights as well?
Employment attorney and author Jonathan T. Hyman believes so. In his book The Employer Bill of Rights: A Manager's Guide to WorkPlace Law, he begins by listing 10 rights that employers should have:
- The Right to Hire on Qualifications
- The Right to Fire on Performance
- The Right to Control Operations
- The Right to Set Sane Work Rules
- The Right to Be Told When There Is a Problem
- The Right to Receive an Honest Day's Work
- The Right to Have Our Say Before You Form a Union
- The Right to Reasonable Notice for Special Requests
- The Right to Confidentiality
- The Right to be Treated with Respect
These sound like great rights for employers to have, but they are not enshrined in law. In some cases, they're hard to assert--which can land you in hot water if you ever run afoul of them.
Say, for instance, you want to deduct pay from an employee who is spending half his day chatting rather than actually doing work. If you do this, it might feel satisfying, but it could buy you a ticket to court.
Hyman's book goes through each one of these rights--offering details on the actual laws surrounding the issue. He also provides helpful information on how to keep yourself in compliance while doing the best for your business.
Even the right to fire based on performance, which seems pretty obvious, isn't clear cut. In the U.S., all states but Montana are "at will" employment states, which means that you can fire someone for any reason or no reason as long that reason isn't prohibited by law.
You can fire someone because you don't like her shoes, so it should be easy to fire someone whose performance leaves something to be desired, right? Again, it's not clear cut. While poor performance is a valid reason to let someone go, you can't, however, fire someone because of his or her race, sex, religion, national origin, religion, age, disability, or use of legal protections like the Family Medical Leave Act (FMLA). For this reason, employers can often get caught up in complaints and lawsuits even when they are following the law.
Even if you're confident that you aren't firing an employee because of one of those protected reasons listed above, it doesn't mean you're in the clear. A spurned employee can still take you to court. And regardless of whether you win or lose, you will be out a ton of money and miss many good nights of sleep.
Hyman gives the example of Donald v. Sybra. Sybra terminated an employee after an investigation showed that the worker had been stealing. However, the employee claimed that the real reason for her termination was her use of FMLA leave. While Sybra was ultimately able to prevail, it was neither cheap nor easy. They had to fight to assert their "right" to fire someone for not just poor performance, but illegal behavior.
This is obviously not ideal. The good news is, many of these infractions can be avoided. In an ideal world, companies would all have an employment lawyer on speed dial--or at least have a pro inspect your human resources practices and go over any compliance changes once a year, says Hyman. "Companies would budget for proactive, preventative help and understand that a small amount of legal fees spent upfront would save a mess of headaches and a huge legal bill later."
That ideal, however, is not always met and he often gets the first phone call minutes after the summons arrives. If you want to make sure you avoid getting a summons in the first place, I highly recommend not only getting an employment lawyer, but reading Hyman's book. It will give you the information you need to make better choices regarding your employees and your business.
SUZANNE LUCAS | Columnist
Suzanne Lucas spent 10 years in corporate human resources, where she hired, fired, managed the numbers, and double-checked with the lawyers.