National Clothesline

I have been giving a lot of seminars lately on supervisor training.

Although I am a lawyer, I make it a point to encourage supervisors NOT to think like lawyers. After all, it is acknowledged by most in my profession that lawyers are not particularly good business people. Law school teaches you how to think like a lawyer, which can be a disadvantage in the business world.

This can be especially so in the workplace. Labor and employment lawyers like myself constantly have to keep in mind that our legal advice involves real human beings. What is legal may not always be the best decision.

Let me illustrate.

Under the wage and hour laws in most states, breaks or meal periods are not required, with some notable exceptions like truck drivers and minors. Theoretically (and legally), an employer can work a person 24 hours straight without a break. While such a practice may be legal, it is not particularly wise.

In most states, unless there is an employment agreement or union contract, employment is “at will.” That means you can fire an employee for any reason you want, including no reason at all.

Any employer who takes advantage of this legal definition of “at will” employment is not exercising good business judgment.

First, imagine the effect on morale for the rest of the workforce if employees learn that the company ’s practice is to fire people for “no reason at all.” That is not the best way to foster a sense of job security and loyalty. Legal, but unwise.

Second, if an employer is sued as a result of the termination decision, judges and juries will have a difficult time sympathizing with an employer who has acted arbitrarily in the matter. Such people will think to themselves: “No reason, you say? Well, that doesn’t sound fair.”

As a result, judges and juries will find ways to impose their own justice, regardless of the legal doctrine of “at will employment.”

No reason at all suddenly becomes an illegal reason, such as race, sex, or age.

That is one of the reasons why I tell my clients not only to have a good reason for firing an employee, but to communicate that reason bluntly to the employee at the termination interview.

No termination decision is ever pleasant, so don’t try to soften the blow or mince words. You will only allow a good plaintiff’s employment lawyer to make you look foolish on the witness stand. Be civil, but tell the employee why he is being fired.

Again, there is no legal obligation to do so, but it makes good sense.

If you have been a loyal reader of this column for more than a few years, you know that I frequently use court decisions to illustrate the risk of not understanding labor and employment laws.

You might even get the impression that you need to consult with an attorney before making the simplest of employment decisions. That is not necessary, but you need to develop an instinct for knowing when to make that phone call to your labor and employment attorney.

Once you do make that phone call, however, you cannot allow yourself to be overwhelmed by lawyer talk.

On one end of the spectrum, you need to determine whether the legal thing, like working an employee without breaks, is a wise business decision.

On the other end, you need to determine whether the legal advice you are getting, like keeping an employee caught stealing because she called OSHA about fumes in the plant two weeks ago, is really in the company ’s best interest.

In both instances, you must be the person deciding what is best for your business, not the attorney.

Finally, there is one area of legal advice that constantly causes lawyers and companies overwhelming grief. What do you do when you discover that the company is violating the law, such as not paying overtime properly, but determine that changing company policy will open up a flood gate of litigation? How do you make the change, what do you tell employees, and what do you do to correct past violations?

Obviously, if the apparent violation is subject to dispute, your options are more numerous. In each case, however, good business judgment and good legal advice need to be combined to reach a proper solution for the company.

Some legal issues are easy to deal with in the workplace. Some are not. If you want your workforce to be motivated, reliable, and loyal, you need to exercise good business judgment as an adjunct to every legal decision. Doing it any other way invites disaster.