- I've got an employee who is not working out. Can I let him go?
- I have an employee who is a terrible performer, and we have given him lots of warnings. Is my unemployment rating going to be charged if I let him go?
- I have two employees. What employment laws do I need to worry about?
- With sexual harassment, what you don't know can really hurt you, and your clients.
- Employment Law Websites
- What Costs More: Firing A Bad Employee or Keeping Him or Her?
Every time you terminate an employee, you have the risk of a potential lawsuit or discrimination claim. Despite the risk, in the end, an unsuccessful employee can cost you more in lost business, customer satisfaction, management effort and workforce morale than the potential exposure from litigation. Planning with experienced employment counsel, you can greatly reduce your potential legal exposure. Assuming that you are not getting rid of the employee because of his or her age, gender, race or disability, or retaliating against the employee for conduct protected by law, such as complaining about an unsafe workplace or filing a workers' compensation claim, litigation risk can often be minimized if you talk to experienced employment counsel first. Frequently, a quick telephone call is all that is needed to review the decision, while when terminating a high-risk employee, more extensive work may be necessary.
The risk presented by the termination of any particular employee is a highly individual question. However, the better proof you have that the decision was the result of a legitimate business decision, such as downsizing or poor performance, the less risk you have.
I have an employee who is a terrible performer, and we have given him lots of warnings. Is my unemployment rating going to be charged if I let him go?
So long as all the employee has done is be a bad employee, the employee will be eligible for unemployment benefits, and you will be charged with the termination on your unemployment rating. An employee will not be eligible to receive benefits if:
- The employee stole property or services with a value in excess of $25.
- Willful misconduct, which includes deliberate misconduct in willful.
- Disregard of the employer's interest; a single knowing violation of a reasonable and uniformly applied work rule or policy, or three separate unexcused absences in an 18-month period.
- Voluntary resignation without good cause attributable to the employer.
- There is just cause for the dismissal, defined as a single act that of willful misconduct that seriously endangers the life, safety or property of the employer, fellow employees, or the general public.
Whether to contest a former employee's application for unemployment benefits depends on many factors. Seemingly insignificant facts can end up making a big difference in whether an employee will be eligible for benefits. Before deciding to contest benefits, you should consult with experienced legal counsel to make sure you have considered all the issues. Frequently, the lawyer won't have to attend the hearing, but will provide the employer representative who will attend with advice about what arguments to make and how to deal with likely questions for the Department or the claimant.
You own a business and an employee has told you that he is going in for surgery next week, and will be gone from work. Do you have to give the employee leave, pay his health benefits while he is out of work, and reinstate him when he is ready to return to work? Or, you want to get rid of a poor performing employee, but you suspect that the employee is going to claim age discrimination. Do you need to worry about discrimination laws.
To answer these questions, you need to know how many employees an employer must have for various employment laws to apply. The following is a brief list of some of the employment laws you may have to deal with, and the number of employees necessary for the law to apply.
Family and Medical Leave Act
The state Medical Leave Act, which provides for 16 weeks of leave every two years, applies to employers of 75 or more employees. The federal Medical Leave Act, which provides for 12 weeks of leave a year and for continuation of employer-paid health benefits, applies to employers of 50 or more employees. Special rules apply to multi-location employers.
Both federal and state discrimination laws by their terms only apply to employers who have a certain number of employees, as explained below.
The Connecticut Fair Employment Practices Act applies to employers with three or more employees. Employers with fewer than three employees will not be liable for employment discrimination.
Title VII, the federal law prohibiting gender, race and ethnic discrimination, and the Americans with Disabilities Act, apply to employers with 15 or more employees. The Age Discrimination in Employment Act applies to employers of 20 or more employees.
Continuation of Health Insurance or COBRA
Under federal law, only employers with 20 or more employees have to offer terminated employees the right to continue health insurance. Under state law, however, all employers who provide group health insurance benefits to their employers must offer the right to continue benefits.
Worker Adjustment and Retraining Notification
The Worker Adjustment and Retraining Notification Act or "WARN" requires that employers give employees affected by a plant closing, 60 days notice or severance. The act applies to employers of 100 full-time employees. 29 U.S.C. § 2101 et seq., C.G.S. § 31-51n.
Leave for Public Officials
Employers to give leave to employees who accept a full-time municipal or state office. Applies to employer with more than 25 employees. C.G.S. § 31-51l.
Employee Promissory Notes Prohibited
Governs ability of employers to compel employees to give notes to the employer to reimburse items like training costs if the employee leaves the employer. Applies to employers with 26 or more employees. C.G.S. § 31-51r.
Laws that Apply to All Employers Regardless of Size
- Occupational Safety and Health Administration regulations apply to all employers regardless of size, but do not apply to self-employed persons or family farmers
- Whistleblower statute. C.G.S. § 31-51m.
- Drug testing of employees. C.G.S. § 31-51u et seq.
- Retaliation for exercise of constitutional rights. C.G.S. § 31-51q.
- Accommodation of need of employees to nurse or express breast milk, including providing a location close to the employee's workplace where the employee can do so in private, and which cannot be a toilet stall. Public Act 01-182..
Sexual harassment suits and complaints are common, expensive and emotionally difficult for any employer. If you make sure, however, that you have a well-drafted, up-to-date sexual harassment policy, you can avoid many sexual harassment claims, and have a strong defense if any sexual harassment lawsuit is brought against you. If you don't have a policy, they could be on the hook for sexual harassment that you didn't even knew about.
What Should the Policy Provide?
- The policy must include a definition of sexual harassment, such as the following:
Sexual harassment includes unwelcome sexual advances, requests for sexual favors or any other visual, verbal or physical conduct of a sexual nature when: (a) submission to such conduct is made explicitly or implicitly, a condition of anyone's employment; (b) an employee threatens or insinuates, explicitly or implicitly, that another employee's refusal to submit to sexual advances will adversely affect the employee's appraisal, wages, advancement, assigned duties or any other condition of employment; or (c) the conduct has the purpose or effect of unreasonably interfering with the employee's work performance or creating an environment that is intimidating, hostile or offensive to the employee.
- Sexual harassment includes unwelcome sexual advances, requests for sexual favors or any other visual, verbal or physical conduct of a sexual nature when: (a) submission to such conduct is made explicitly or implicitly, a condition of anyone's employment; (b) an employee threatens or insinuates, explicitly or implicitly, that another employee's refusal to submit to sexual advances will adversely affect the employee's appraisal, wages, advancement, assigned duties or any other condition of employment; or (c) the conduct has the purpose or effect of unreasonably interfering with the employee's work performance or creating an environment that is intimidating, hostile or offensive to the employee.
- The policy has to tell the employees that sexual harassment, and any type of harassment is forbidden. The policy should state that employees should make clear to the offender that the conduct is unwelcome.
- The Policy must establish a complaint procedure. It must tell employees to whom they should complain, and that they should report any suspected harassment as soon as possible. Give the employees more than one person to complain to in case the complaint involves the designated person, and specify an owner or upper-level manager. Avoid designating the employees' immediate supervisor as the person to report to. The immediate supervisor is more likely to know, and possibly be friends with, the people involved in the harassment, and may not pass the allegations on to upper management. Also, confidentiality is harder to protect the more people that know about the harassment.
- The policy should provide that each employee has a duty to cooperate in investigations of allegations of sexual harassment, and that failure to do so will subject the employee to discipline.
- The policy should assure employees that their complaints will be kept confidential to the extent possible. The employer will not be liable for harassment, even if it knows about it, if the victim of the harassment insists that the matter be kept confidential from the alleged harasser. In Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), a manager learned of the harassment from a co-worker, but when he asked the victim about it, she told the manager not to do anything and not to confront the alleged harasser. When she later brought suit, the court held that the employer would not be liable for honoring the employee's request for confidentiality.
- The policy should state that any employee found guilty of any type of harassment will be disciplined, up to and including termination.
Why Have A Policy?
If an employee believes he or she is being harassed, a well-drafted policy will protect your client whether or not the employee tells you about the harassment.
- If the employee does report the allegations, you will have the opportunity to investigate the allegations and deal with the situation prior to litigation. Any investigation of a complaint of sexual harassment must be conducted with care and with the guidance of counsel. But if you know about the problem, at least you have the opportunity to correct it.
- Even if the employee does not report the suspected harassment, and files suit without telling you about the harassment, you may be able to avoid liability for the harassment if you have an effective sexual harassment policy in place. The Supreme Court in the cases of Burlington Indus, Inc. v. Ellerth, 524 U.S. 742 (1988) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) held that an employer will not liable for some types of sexual harassment if the employer has an effective complaint procedure and the employee does not use it. Generally, as long as the employee was not terminated, demoted or had a pay cut as part of the harassment, the employer will not be liable if the employee does not use the harassment reporting procedure. If the employer does not have a sexual harassment complaint procedure established, the employer can be liable for many types of harassment even if management is unaware of any problem.
The first question you may ask as a business owner when thinking about letting an employee go is "What is it going to cost my company to fire this employee?" It is easy to see the cost of an employment claim: the expense of paying a lawyer to defend the suit; diversion of management's time from the business; the cost of paying a settlement to resolve a claim. Terminated employees in Connecticut can file a discrimination complaint in the Connecticut Commission on Human Rights and Opportunities, or a wage and hour complaint with the Department of Labor. They can even make complaints to OSHA. Terminating an employee will affect your business experience rating for unemployment insurance, and potentially increase your unemployment tax rate. If the employee files a lawsuit, the expenses can be even greater.
These costs are real, and are obvious when you are making the decision whether to let an employee go. The cost of letting the employee go, however, is not the first question to ask. Rather, the first question should be "What is the cost of keeping the employee?" Bad employees impose a business cost every day they come to work:
- The cost of the employee's compensation: The business is paying a salary and not receiving a good return on the investment.
- The cost of bad employees reducing the productivity of good employees: Good employees have to work harder to make up for the bad employee's lack of productivity.
- The cost of decreasing the morale of the good employees: Good employees are discouraged when an employer tolerates a disruptive, unproductive employee. Good employees can be much less forgiving of non-performers than you are, and will blame you for keeping a bad employee.
- The cost of your morale and productivity, as you spend time figuring out how to improve the employee's performance and manage the morale and production issues caused by the employee.
Remember, the first goal in managing your work force is not to avoid getting sued. Rather, the first goal is to have a happy and productive work force. Sometimes you may decide, after consulting with your employment counsel, that the risk of a suit is greater than the cost of keeping the poor employee. Your employment counsel can help you determine the cost of suit so you can make the best decision. But, to achieve your goal of developing a productive work force at the least cost, you have to determine what the cost of keeping the bad employee is before considering the cost of terminating the employee.
Learn More About Our Employment Law Attorney
You can contact Brown Paindiris & Scott, LLP, at our Hartford office, by calling 860-266-4278.