Employment law lawyers are asked to review a lot of employment decisions.
If we’re lucky, we’re brought in early in the process when the decision isn’t yet final and where our input can be useful.
Other times though, we’re asked to opine on decisions after the fact.
And truth is, it’s really pretty easy to Monday morning quarterback employment decisions. Because there is sometimes something that wasn’t thought of before the decision was made.
Often, it may not be important. The employer would have still made the same decision if something else was looked it.
Had you known that there was a law protecting free speech in the workplace, would you still have disciplined the employee for putting up a post on Facebook about his working conditions?
Many employers can’t afford an in-house attorney to bounce their decisions off.
So, for those companies, here are five questions to get you thinking BEFORE you make an employment decision.
(Usual caveat: This isn’t advice, isn’t intended to be comprehensive, and isn’t a substitute for actual legal counsel.)
- Is the decision fair? If you can’t answer this question honestly, start over. You’re doing it wrong. Fairness matters to judges, juries, and other employees.
- Is the employee going to be surprised by the decision? Good management principles dictate that employees should know what is going on. If you’re terminating an employee for poor performance, did the employee know his or her performance was in jeopardy?
- Is the decision well documented? Is there backup to support the decision and is the rationale clear from them? And is the decision being properly communicated to the employee too?
- Are there any laws that are implicated by the decision? This is one area that is tough to fake. You probably know you can’t fire someone because of their age, but what if you are trying to save money; can you fire the highest paid employee who also happens to be the oldest?
- Is there anything else going on that should be taken into consideration? For example, did the employee just return from maternity leave? Has the employee been asking for an accommodation?
These five questions won’t solve all your employment law issues.
But it should give you a head start on figuring out what other questions you should be asking and whether the decision you are about to make is one that you’ll be happy with down the road.